R.A v F.A

The applicant and respondent were married in community of property since 5 October 2017 and had three minor children aged 16, 13, and 9 in the respondent's primary care. Pending divorce proceedings, they concluded a deed of settlement (made an order of court on 27 May 2021) providing for interim spousal maintenance of R12,000 per month and child maintenance of R15,000 per month, plus R60,000 towards legal costs. On 24 July 2023, the respondent applied under Rule 43(6) to vary the order, seeking increased maintenance. The applicant filed a notice to oppose but his attorney withdrew and mistakenly informed him the hearing was on 9 November 2023. He attended court on that date to find the matter was not enrolled. Unbeknown to him, the Rule 43(6) order had been granted in his absence on 24 October 2023, increasing his maintenance obligations substantially and including a contempt sanction clause. The applicant's financial position had deteriorated, with his monthly income decreasing to R15,000 and his business facing liquidation. The respondent threatened contempt and execution proceedings. The applicant sought to suspend the Rule 43(6) order pending a rescission application.

• Whether the court should suspend the operation and execution of a Rule 43(6) order granted in the applicant's absence, pending an application for rescission thereof.
• Whether the applicant had made out a case for the suspension of the order under Rule 45A of the Uniform Rules.
• Whether the applicant would suffer irreparable harm if the stay were not granted.

The application was granted. The operation and execution of the Rule 43(6) order of 24 October 2023 was suspended pending determination of the rescission application. The applicant was directed to continue complying with the Rule 43 order of 27 May 2021. The respondent was ordered to pay the costs of this application.

A court may suspend the operation and execution of a maintenance variation order under Rule 45A where real and substantial justice requires it, particularly where the order was granted in the applicant's absence, irreparable harm (such as incarceration or execution against assets) would result if the order were enforced, the underlying causa is in dispute, and the applicant intended to oppose but was prevented from doing so through no fault of their own.

The court noted that pending the outcome of the proposed rescission application, the Rule 43(6) order remains in effect until a competent court sets it aside, citing Department of Transport v Tasima (Pty) Ltd and Municipal Manager OR Tambo District Municipality v Ndabeni, which affirmed that court orders are binding until set aside, even if wrongly issued. The court also remarked that the applicant's financial position ought to be placed before and considered by the court when determining whether to increase maintenance obligations, consistent with the audi alteram partem rule.

This judgment illustrates the application of Rule 45A in the context of Rule 43(6) maintenance variation orders. It affirms that courts will protect litigants who were absent through no fault of their own when their liberty or property is threatened by execution of a default order, particularly where the audi alteram partem principle has not been observed. It also reinforces that financial circumstances must be properly placed before the court when varying maintenance obligations, and that a notice of intention to oppose can serve as evidence of genuine intent to defend.