S v S (19332/2017)  ZAGPPHC 1041
It is an inevitable fact of modern life that marriages often end in divorce. Based on data from Statistics South Africa, 25 326 divorce orders in courts were approved in 2016. Of these, 55% involved children under the age of 18 years.
Applicants in rule 43 applications are mostly women who, as in the majority countries, occupy the lowest economic rung and are usually in a less favourable financial position than their husbands. The gender imbalance in homes and society in general continues to be a challenge both for society at large and our courts. This is especially noticeable in applications for maintenance where systemic failures to impose maintenance orders have negatively impacted the rule of law. It is women who are mainly left to nurture their children and shoulder the related financial burden.
In the majority divorce cases, one of the parties approaches the court to rule on an application in terms of rule 43 of the Rules of Court (Uniform Rules or Rules) for interim relief, pendente lite (pending divorce and litigation).
Rule 43 of the High Court rules offers a mechanism for a spouse in divorce proceedings to approach the court for an interim order granting them child and/or spousal maintenance pending finalization of the divorce. It has always been a well-established fact that these orders cannot be appealed. However, a question which always came to mind was whether this principle was constitutional?
The Constitutional Court was recently requested to decide this very question in the case of S v S. The parties in this case in a divorce action approached the Court after an order for maintenance had been granted against the Husband for an amount of maintenance that exceeded the amount he had offered during the application. The husband, after being unsuccessful in the High Court approached the Supreme Court of Appeal.
The appeal was dismissed on the basis that Rule 43 orders were not appealable. The basis for this was to protect the best interests of the child in circumstances where children may be prejudiced by continuous appeals. He then proceeded to the Constitutional Court to dispute the constitutionality of the refusal of the Supreme Court to entertain his application.
The Husband contended that his right to equality and access to courts had been being infringed as well as the rights of the child in this instance given that it was, he who wanted custody of the children. As such he would be taking care of them.
The question then before the court was: will the prohibition infringe the best interests of the child? Furthermore, does it infringe the right to equal protection of the law? And, does it infringe the right to access courts?
In reply to these questions the court found the following: The appeal procedure may cause substantial delays and as such leave the children or spouses that require the maintenance destitute. Should any Rule 43 order not serve the best interest of the child – it could be determined on a case by case basis and if needed it can be varied.
When dealing with the second issue raised being equality – the court found that Rule 43 provides an essential purpose: to “provide a speedy and inexpensive remedy, primarily for the benefit of women and children”. So, the court held that to permit an appeal would ruin the very purpose which Rule 43 seeks to advance. The prohibition has a legitimate purpose.
And finally, regarding access to courts, the court held that a litigant nevertheless had access to courts even though not within an appeal procedure. The court pointed out that a litigant could approach the court to alter the order if there is a change in “material circumstances”: which may possibly justify it.
In this case the husband had argued that his estranged wife had obtained employment and also that she was residing with her new lover whom was in part maintaining her. These may be grounds which he could argue in an application for variation.
The appeal was consequently dismissed.
What can one do if dissatisfied with a Rule 43 order?
As mentioned above, although you may not be able to approach the courts to appeal a Rule 43, you could certainly approach it to vary an order. Nevertheless, in order to be successful, you would need to establish that there was a change in “material circumstances” that justify the variation.
Both litigants can approach for a variation on any kind of ground which it believes is a change in material circumstances and that they can prove to court. Whether or not that is to increase or decrease the maintenance amount or for a change in the primary caregiver, etc.
Rule 43 is a crucial mechanism that if employed correctly will provide maintenance for yourself and your children although the divorce is pending. Divorce proceedings could take some time to finalize and with an order such as this in place will go a long way to ensuring financial security during the uncertainty of the proceedings.