Introduction: The Facts and Procedural History of S v S and Another
The Constitutional Court case of S v S and Another (Centre for Child Law as Amicus Curiae) 2019 (6) SA 1 (CC) arose from a divorce matter between Mr. S (the applicant) and Mrs. S (the first respondent). The couple, who married in 2008, have three minor children aged 15, 11, and 5 years old at the time of the proceedings. In September 2016, as the marriage broke down, Mrs. S vacated the family home, leaving the children in the care and custody of Mr. S.
Mr. S instituted divorce proceedings and subsequently launched an application in the High Court of South Africa, Gauteng Division, Pretoria, for interim relief under Rule 43 of the Uniform Rules of Court. He sought to confirm the children’s primary residence with him and offered to pay Mrs. S R12,000 per month in personal maintenance. Mrs. S, in turn, opposed the application and claimed R60,353 per month in maintenance, arguing that Mr. S had significantly understated his financial means.
The High Court, despite ruling Mrs. S’s opposing affidavit inadmissible for being filed out of time, ordered Mr. S to pay Mrs. S R40,000 per month in maintenance. Aggrieved by this decision, Mr. S sought leave to appeal, arguing that the order was granted per incuriam (without due care). He later supplemented his application for leave to appeal, challenging the constitutionality of section 16(3) of the Superior Courts Act 10 of 2013, which bars appeals against Rule 43 orders.
The High Court dismissed the application for leave to appeal, holding that Rule 43 orders are interim in nature and that allowing appeals would run counter to the best interests of children. Mr. S then unsuccessfully petitioned the Supreme Court of Appeal and applied for leave to appeal to the Constitutional Court.
Before the Constitutional Court, Mr. S argued that section 16(3) of the Superior Courts Act infringes upon various constitutional rights, including the best interests of the child (section 28(2) of the Constitution), the right to equality before the law (section 9(1) of the Constitution), and the right of access to courts (section 34 of the Constitution). The Centre for Child Law was admitted as amicus curiae, largely supporting the arguments advanced by Mr. S.
The main issues before the Constitutional Court were the constitutionality of section 16(3) of the Superior Courts Act and the appealability of Rule 43 orders in the context of the best interests of the child, the right to equality, and access to courts. The Constitutional Court had to determine whether the blanket prohibition on appeals against Rule 43 orders, as provided for in section 16(3), passed constitutional muster.
The Constitutionality of Section 16(3) of the Superior Courts Act 10 of 2013
Section 16(3) of the Superior Courts Act 10 of 2013 provides that “no appeal lies from any judgment or order in proceedings in connection with an application” for various forms of interim relief in matrimonial matters, including maintenance pendente lite, contributions towards costs, and interim care of and contact with children. This provision effectively bars appeals against orders made under Rule 43 of the Uniform Rules of Court, which governs applications for interim relief in matrimonial proceedings.
Mr. S, supported by the Centre for Child Law, argued that section 16(3) is unconstitutional as it infringes upon various constitutional rights. The Constitutional Court, in assessing the constitutionality of the provision, considered the purpose and rationale behind the prohibition on appeals in the context of Rule 43 proceedings.
The Court acknowledged that Rule 43 is designed to provide a speedy and inexpensive remedy, primarily for the benefit of women and children who are often left financially vulnerable during divorce proceedings. The rationale behind the non-appealability of Rule 43 orders is to prevent delays and curtail costs, which would otherwise defeat the purpose of the Rule.
In S v Ntuli 1996 (1) SA 1207 (CC), the Constitutional Court dealt with a similar issue concerning the differentiation of appeal procedures in criminal matters. The Court held that the differentiation in that case was neither fair nor reasonable, and the means used to achieve the intended purpose went beyond what was necessary, thus infringing the right to equality before the law under section 8(1) of the interim Constitution (now section 9(1) of the final Constitution).
However, in the present case, the Constitutional Court found that the differentiation between litigants who can appeal and those who are barred from doing so under section 16(3) bears a rational connection to a legitimate government purpose. The Court applied the test laid down in Harksen v Lane N.O. 1998 (1) SA 300 (CC), which requires that a differentiation must bear a rational connection to a legitimate government purpose to pass constitutional muster under section 9(1) of the Constitution.
The Court held that the purpose of Rule 43 – to provide a speedy and inexpensive remedy – and the rationale behind the non-appealability of orders made under it – to prevent delays and curtail costs – are legitimate governmental objectives. The statutory differentiation between litigants who can appeal and those who cannot, as provided for in section 16(3), is rationally connected to these objectives.
Furthermore, the Court emphasised that the parties in a Rule 43 application are on equal footing, as both are precluded from appealing the order. This ensures that there is no violation of the equality of arms principle, which requires that parties in a specific matter be treated in a manner that ensures their procedural equality.
In conclusion, the Constitutional Court found that section 16(3) of the Superior Courts Act 10 of 2013, which bars appeals against Rule 43 orders, is constitutionally valid. The differentiation it creates between litigants is rationally connected to the legitimate government purpose of providing a speedy and inexpensive remedy in interim matrimonial matters, and it does not infringe upon the right to equality before the law under section 9(1) of the Constitution.
The Best Interests of the Child Principle
A central issue in the case was the impact of section 16(3) of the Superior Courts Act on the best interests of children in the context of Rule 43 proceedings. Section 28(2) of the Constitution of the Republic of South Africa, 1996, enshrines the best interests of the child as paramount in every matter concerning the child.
Mr. S and the Centre for Child Law argued that the inability to appeal Rule 43 orders, as a result of section 16(3), infringes upon the best interests of children. They contended that an order granted under Rule 43 implicates a number of a child’s constitutional rights, including the right to family or parental care, the right to be protected from maltreatment, neglect, or abuse, and the right to have their best interests considered as paramount.
The Constitutional Court acknowledged the importance of the best interests principle, as emphasised in Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA 363 (CC). In Bannatyne, the Court recognised the vulnerable position of women and children in the context of maintenance and the need for courts to ensure that the existing legal framework operates effectively to protect their interests.
However, the Court in S v S and Another found that allowing appeals against Rule 43 orders would, in fact, run counter to the best interests of children. The Court reasoned that an appeal process would significantly delay the finalisation of Rule 43 proceedings, which are intended to provide interim relief to vulnerable parties during divorce proceedings. The resulting delays in maintenance payments and the resolution of custody arrangements would prejudice the children involved.
Moreover, the Court highlighted the potential for abuse of the appeal process by recalcitrant spouses seeking to frustrate the payment of maintenance and prolong the proceedings. This would disproportionately impact women, who are more often the primary caregivers and bear the financial burden of caring for children.
The Court also noted that, in most cases, Rule 43 orders relating to the care and contact of children are granted pending an investigation by the Family Advocate or other experts. It is only upon receipt of such reports that a more permanent order is made pending the finalization of the divorce. Should any interim order be contrary to the best interests of a child, the High Court has the power to hear the matter on an urgent basis and rectify the situation.
Furthermore, the Court emphasised that section 16(3) does not leave parties without recourse, as Rule 43(6) allows for the variation of an order upon a material change in circumstances. This provision ensures that any injustice resulting from a Rule 43 order can be addressed by the court.
In conclusion, the Constitutional Court found that section 16(3) of the Superior Courts Act, which prohibits appeals against Rule 43 orders, does not infringe upon the best interests of the child. On the contrary, allowing appeals in these interim matters would lead to delays and potential abuse of the process, which would ultimately prejudice the children involved. The Court held that the best interests of children are better served by the speedy and inexpensive resolution of Rule 43 proceedings, coupled with the safeguards provided by the High Court’s urgent jurisdiction and the variation mechanism under Rule 43(6).
The Right to Equality Before the Law
In S v S and Another (Centre for Child Law as Amicus Curiae), the applicant argued that section 16(3) of the Superior Courts Act, which bars appeals against Rule 43 orders, infringes upon the right to equality before the law guaranteed by section 9(1) of the Constitution of the Republic of South Africa, 1996. Section 9(1) provides that “everyone is equal before the law and has the right to equal protection and benefit of the law.”
Mr. S contended that the non-appealability of Rule 43 orders creates an unconstitutional differentiation between litigants in Rule 43 proceedings and those in other legal proceedings who are afforded the right to appeal. He argued that this differentiation denies Rule 43 litigants equal protection of the law and violates the principle of equality of arms, which requires that parties in a specific matter be treated in a manner that ensures their procedural equality.
The Constitutional Court acknowledged that differentiation lies at the heart of both inequality and effective governance and that mere differentiation can occur in various legitimate ways. The Court emphasised that the critical question is whether the differentiation is rational and bears a rational connection to a legitimate government purpose, as established in Harksen.
In assessing the rationality of section 16(3), the Court considered the purpose of Rule 43 and the rationale behind the non-appealability of orders made under it. The Court found that Rule 43 aims to provide a speedy and inexpensive remedy, primarily for the benefit of women and children who are often left financially vulnerable during divorce proceedings. The non-appealability of Rule 43 orders serves to prevent delays and curtail costs, which would otherwise defeat the purpose of the Rule.
The Court held that the differentiation created by section 16(3) between litigants who can appeal and those who are barred from doing so bears a rational connection to the legitimate government purpose of providing a speedy and inexpensive remedy in interim matrimonial matters. As such, the Court found that section 16(3) does not infringe upon the right to equality before the law under section 9(1) of the Constitution.
Furthermore, the Court distinguished the present case from S v Rens 1996 (1) SACR 105 (CC), where it was held that equality before the law does not require identical appeal procedures to be followed, and that as long as litigants in a particular court are subject to the same procedures, the requirement of equality is met. In S v S and Another, the Court emphasised that both parties in a Rule 43 application are precluded from appealing the order, ensuring that they are on equal footing and that the principle of equality of arms is not violated.
The applicant’s argument that the denial of an appeal process in Rule 43 proceedings renders litigants unequal before the law was rejected by the Court. The Court held that the equality of arms principle is not infringed, as it requires parties in a particular dispute to receive equal treatment and opportunity, which is satisfied by the equal application of section 16(3) to both parties in a Rule 43 proceeding.
In conclusion, the Constitutional Court found that section 16(3) of the Superior Courts Act does not infringe upon the right to equality before the law under section 9(1) of the Constitution. The differentiation created by the provision is rationally connected to the legitimate government purpose of providing a speedy and inexpensive remedy in interim matrimonial matters, and the principle of equality of arms is not violated, as both parties in a Rule 43 proceeding are equally precluded from appealing the order.
Access to Courts and the Appealability of Rule 43 Orders
The final constitutional issue addressed in S v S and Another (Centre for Child Law as Amicus Curiae) was whether section 16(3) of the Superior Courts Act, which bars appeals against Rule 43 orders, infringes upon the right of access to courts guaranteed by section 34 of the Constitution. Section 34 provides that “everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”
Mr. S argued that the inability to appeal Rule 43 orders under section 16(3) unconstitutionally denies him access to courts. The Constitutional Court, however, held that the right of access to courts does not necessarily entail a right to appeal in all circumstances.
The Court noted that it is generally not in the interests of justice to grant leave to appeal against interim orders, as doing so would defeat the very purpose of such orders. The non-appealability of interlocutory orders has been found to be constitutional by South African courts on numerous occasions, as in Minister of Health v Treatment Action Campaign (No 1) 2002 (5) SA 703 (CC) and Zweni v Minister of Law and Order 1993 (1) SA 523 (A).
The Court emphasised that the mere fact that a Rule 43 order may be of longer duration than initially anticipated does not change its interim nature or automatically render it appealable. Appeals against interim orders have only been allowed in exceptional circumstances where the interests of justice demand it, such as in Children’s Institute v Presiding Officer, Children’s Court, Krugersdorp 2013 (2) SA 620 (CC), where the interim order was found to be final in effect.
In the present case, the Constitutional Court found no basis to hold that the interests of justice require granting a right to appeal against Rule 43 orders. The Court reasoned that allowing appeals would undermine the purpose of Rule 43, which is to provide a speedy and inexpensive remedy in interim matrimonial matters.
Furthermore, the Court noted that section 16(3) does not absolutely bar access to courts, as Rule 43(6) provides a mechanism for aggrieved parties to approach the court for a variation of the order in the event of a material change in circumstances. This ensures that any injustice resulting from a Rule 43 order can be addressed by the court without the need for an appeal process.
The Court also held that, in exceptional cases where strict adherence to the rules would result in manifest injustice, courts have the inherent power under section 173 of the Constitution to regulate their own processes in the interests of justice. This provision allows courts to deviate from the strict application of rules when necessary to prevent injustice.
In conclusion, the Constitutional Court found that section 16(3) of the Superior Courts Act, which bars appeals against Rule 43 orders, does not infringe upon the right of access to courts under section 34 of the Constitution. The non-appealability of interim orders is constitutionally permissible, and the interests of justice do not demand a right to appeal in the context of Rule 43 proceedings. Moreover, the variation mechanism provided by Rule 43(6) and the courts’ inherent power to regulate their own processes under section 173 of the Constitution ensure that parties are not left without recourse in cases of manifest injustice.
Case Law
The judgment in S v S and Another refers to several other cases not mentioned in the previous sections. These cases, along with their full citations and relevance, are as follows:
Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC): This case was cited to illustrate that the interim nature of an order is not the sole determining factor in deciding whether to grant leave to appeal. The Court held that the crucial issue is whether it is in the interests of justice to grant leave, considering the interim nature of the order as part of the overall assessment.
National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC): This case was mentioned alongside Albutt to demonstrate that the Constitutional Court has granted leave to appeal against interim orders in exceptional circumstances where the interests of justice demanded it.
Tshwane City v Afriforum 2016 (6) SA 279 (CC): This case was also cited as an example of the Court granting leave to appeal against an interim order in exceptional circumstances where the interests of justice required it.
Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA 363 (CC): This case was referenced to highlight the Court’s recognition of the vulnerable position of women and children in the context of maintenance and the need for courts to ensure that the existing legal framework operates effectively to protect their interests.
TS v TS 2018 (3) SA 572 (GJ): This case was cited to emphasise the importance of Rule 43 proceedings, as they are often the only contested hearings that divorce litigants participate in.
Dodo v Dodo 1990 (2) SA 77 (W): This case was mentioned to show that courts have acknowledged that while Rule 43 applications are intended to provide a quick, short, and inexpensive procedure, there may be exceptional circumstances that justify a deviation from the norm when the complexities of the case are unusual.
These cases were referred to in the judgment to support the Court’s reasoning on various aspects of the matter, including the appealability of interim orders, the interests of justice in granting leave to appeal, the vulnerability of women and children in maintenance matters, and the importance of Rule 43 proceedings in the context of divorce litigation.
Questions and Answer
What is the main issue addressed in S v S and Another (Centre for Child Law as Amicus Curiae) 2019 (6) SA 1 (CC)? Answer: The main issue is whether section 16(3) of the Superior Courts Act 10 of 2013, which prohibits appeals against orders made under Rule 43 of the Uniform Rules of Court, is constitutional.
What constitutional rights did the applicant, Mr. S, argue were infringed by section 16(3) of the Superior Courts Act? Answer: Mr. S argued that section 16(3) infringed upon the best interests of the child (section 28(2) of the Constitution), the right to equality before the law (section 9(1) of the Constitution), and the right of access to courts (section 34 of the Constitution).
What is the purpose of Rule 43 of the Uniform Rules of Court? Answer: Rule 43 provides a mechanism for parties in divorce proceedings to seek interim relief, such as maintenance pendente lite, contributions towards costs, and interim care of and contact with children.
Why does section 16(3) of the Superior Courts Act bar appeals against Rule 43 orders? Answer: Section 16(3) bars appeals against Rule 43 orders to prevent delays and curtail costs, which would otherwise defeat the purpose of providing a speedy and inexpensive remedy in interim matrimonial matters.
How did the Constitutional Court assess the constitutionality of section 16(3) in relation to the right to equality before the law under section 9(1) of the Constitution? Answer: The Court applied the rationality test from Harksen v Lane N.O. 1998 (1) SA 300 (CC), which requires that a differentiation must bear a rational connection to a legitimate government purpose to pass constitutional muster.
What did the Court find regarding the differentiation created by section 16(3) between litigants who can appeal and those who cannot? Answer: The Court found that the differentiation bears a rational connection to the legitimate government purpose of providing a speedy and inexpensive remedy in interim matrimonial matters and thus does not infringe upon the right to equality before the law.
How did the Court address the argument that section 16(3) violates the principle of equality of arms? Answer: The Court held that the principle of equality of arms is not violated, as both parties in a Rule 43 proceeding are equally precluded from appealing the order, ensuring that they are on equal footing.
What did the Court say about the best interests of the child in relation to section 16(3) and the appealability of Rule 43 orders? Answer: The Court found that allowing appeals against Rule 43 orders would lead to delays and potential abuse of the process, which would ultimately prejudice the children involved. The best interests of children are better served by the speedy and inexpensive resolution of Rule 43 proceedings.
How can a party seek relief if a Rule 43 order is contrary to the best interests of a child? Answer: The High Court has the power to hear the matter on an urgent basis and rectify the situation if an interim order is contrary to the best interests of a child.
What mechanism does Rule 43(6) provide for parties to seek variation of a Rule 43 order? Answer: Rule 43(6) allows for the variation of an order upon a material change in circumstances, ensuring that any injustice resulting from a Rule 43 order can be addressed by the court.
How did the Court address the argument that section 16(3) infringes upon the right of access to courts under section 34 of the Constitution? Answer: The Court held that the right of access to courts does not necessarily entail a right to appeal in all circumstances and that the non-appealability of interim orders is constitutionally permissible.
In what circumstances has the Constitutional Court granted leave to appeal against interim orders? Answer: The Court has granted leave to appeal against interim orders in exceptional circumstances where the interests of justice demanded it, such as in Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC), National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC), and Tshwane City v Afriforum 2016 (6) SA 279 (CC).
What inherent power do courts have under section 173 of the Constitution to prevent manifest injustice? Answer: Under section 173 of the Constitution, courts have the inherent power to regulate their own processes in the interests of justice, allowing them to deviate from the strict application of rules when necessary to prevent injustice.
How did the Court distinguish the present case from S v Rens 1996 (1) SACR 105 (CC)? Answer: In S v Rens, the Court held that equality before the law does not require identical appeal procedures, and as long as litigants in a particular court are subject to the same procedures, the requirement of equality is met. In the present case, both parties in a Rule 43 proceeding are equally precluded from appealing the order.
What did the Court ultimately decide regarding the constitutionality of section 16(3) of the Superior Courts Act? Answer: The Constitutional Court found that section 16(3) of the Superior Courts Act, which bars appeals against Rule 43 orders, is constitutionally valid and does not infringe upon the rights to equality before the law, access to courts, or the best interests of the child.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline. A blog, managed by SplashLaw, for more information on Family Law read more here.
Download the case here: