Could an interim order be appealed?

2019-09-25 06:02
Malefa Mzamo

Malefa Mzamo

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Question:

I am divorcing my wife. The whole process has been terribly stressful, and I have now also lost my job.

The interim maintenance order requires me to pay maintenance for my wife and two minor children, which I cannot fully pay now that I am jobless. Can I appeal the interim order and have it changed?

Answer:

An interim maintenance order is when the court provides relief regarding spousal maintenance and/or maintenance in respect of minor children pending the finalisation of a divorce.

Rule 43 of the Supreme Court’s Uniform Rules and Rule 58 of the Magistrate’s Court Act provide that a spouse in divorce proceedings can approach the court for interim relief pertaining to the contact with or care of a minor child, maintenance for a spouse and/or the minor child, or a contribution towards the legal costs of the divorce.

The question now is whether the above interim orders can be appealed by any of the litigants who may not be satisfied with the nature of interim relief provided.

In terms of Section 16(3) of the Superior Courts Act, appeals against Rule 43 orders are prohibited.

The constitutionality of this section was recently challenged in the Constitutional Court.

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.

Accordingly, the Constitutional Court upheld the position that Rule 43 orders are not appeal­able and that Section 16(3) is not unconstitutional.

The reasoning of the court was that the purpose of Rule 43 was to provide a speedy and inexpensive remedy. The rationale behind the non-appeal­ability was to avoid delays and reduce costs.

If such an interim order could be appealed, it would contradict the interim nature or objective of such an application, as interim maintenance orders which are appeal­able would only be enforceable once the appeal has been heard.

Such a situation would clearly be to the detriment of the minor child and/or the litigant in whose favour the maintenance was awarded.

The court did hold that this did not leave a party completely without remedy. In cases where the maintenance order is evidently incorrect, the order can be rectified by a Rule 43(6) application.

This could be utilised where, for example, there is a material change in the circumstances of either party or the child, in which the court can use its own discretion in considering a variation of the interim order.

In your case, therefore, the order is not appeal­able. However, it would be advisable to approach your attorney or family law specialist to discuss whether the order should be varied using Rule 43(6), if there have been material changes to your circumstances which could justify a change to the current interim order.

– Malefa Mzamo, candidate attorney, Phatshoane Henney attorneys

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