Case CCT147/18 
[2019] ZACC 22

 Date of Hearing: 12 March 2019
Judgement Date:27 June 2019

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Thursday, 27 June 2019 at 10h00, the Constitutional Court handed down judgment in a matter concerning the constitutional validity of rule 43 of the Uniform Rule of Court (Uniform Rules) read with section 16(3) of the Superior Courts Act 10 of 2013 (Act).

Mr S, the applicant, and Mrs S, the first respondent, are married out of community of property excluding accrual and entered into divorce proceedings on 2 September 2016. Three minor children were born of the marriage. On 15 March 2017, Mr S instituted rule 43 proceedings in the High Court of South Africa, Gauteng Division, Pretoria (High Court), seeking to confirm interim arrangements for maintenance payments and the primary care and custody of the minor children until the finalisation of the divorce proceedings. He proposed that he pay Mrs S an amount of R12 000 per month as interim maintenance. On 12 May 2017, the High Court ordered Mr S to pay an amount of R40 000 per month as maintenance to Mrs S. Upon receipt of the order, Mr S requested reasons for the rule 43 order in accordance with rule 49(1)(b) of the Uniform Rules, as he considered the ordered amount to be financially unsustainable and not supported by evidence. The High Court gave brief reasons to the effect that rule 43 orders are interlocutory, are not appealable, are susceptible to variation per rule 43(6), and do not generally require that reasons be given.

Mr S launched an application for leave to appeal in the High Court on 23 June 2017. The High Court dismissed the application, again finding that rule 43 proceedings are not appealable due to section 16(3) of the Act, and dismissing Mr S’s challenge to the constitutionality of section 16(3). Mr S’s further applications for leave to appeal to the Supreme Court of Appeal and its President were also dismissed. 

In this Court, Mr S argued that this matter raised an arguable point of law and a constitutional issue. He contended that section 16(3) of the Act was unconstitutional as it created a blanket rule, that rule 43 orders are not appealable. This, he submitted, created an infringement of the best interests of the child, the right to equality for litigants and the right of access to courts. The Centre for Child Law, which was admitted as amicus curiae (friend of the court), supported Mr S’s case, and argued that allowing appeals from rule 43 orders would be in the interests of justice and would favour the best interests of the child.

In a unanimous judgment penned by Nicholls AJ, the Constitutional Court held that in terms of section 167(3)(b)(ii) of the Constitution, the matter raised an issue of general public importance and it was in the interests of justice to grant leave to appeal. On the constitutional challenge, the Court held that an appeal process is expensive and would create delays in finalising matters, which infringes the best interests of the child. The Court also found that there is a rational connection between section 16(3) and the legitimate government purpose to deal with the issue speedily and prevent incurrence of costs. The Court further found that rule 43(6), which provides litigants with an opportunity to approach a court for variation of a previous rule 43 order, provides access to courts and sufficiently enables the right. 

The Court concluded that the real issue in this matter was the interpretation and operation of rule 43, rather than section 16(3) of the Act. However, the constitutionality of rule 43 had not been in issue before the Court. As such, the Court found that the unconstitutionality of section 16(3) of the Act had not been established, but provided guidance to High Courts on interpreting rule 43(6) expansively. Accordingly, the Court granted leave to appeal and dismissed the appeal with costs.                                     


The Full judgment  here