Page 100 - Q&A 2019/2020

Can an interim maintenance order be
appealed?

Malefa Mzamo
July 2019
“I’m currently in the process of getting divorced from 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 don’t have a job. Is there
any way I can appeal the interim order and have it changed?”

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. Recently the constitutionality of this section was
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 and that the rationale behind the non-
appealability was to avoid delays and reduce costs. If such an interim order
were allowed to be appealed it would contradict the interim nature or objective
of such an application, as interim maintenance orders which were appealable
would only be enforceable once the appeal has been heard which 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
as 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. Family

94