The Facts: A Blended Family, a Breakdown, and a Battle Over Stepchildren’s Maintenance
BE and NT married on 27 April 2018, out of community of property subject to the accrual system. The marriage deteriorated towards the end of 2023 and the parties separated. NT, a dietician, instituted divorce proceedings in the Western Cape Division of the High Court, Cape Town, followed by an application under Rule 43 of the Uniform Rules of Court for interim maintenance pendente lite for herself and her two minor children from a previous relationship, born in 2010 and 2012 respectively, together with a contribution towards her legal costs and ancillary relief.
Although BE had never adopted the children, NT contended that the parties and the children had functioned as a single family unit and that BE had assumed a parental role, both emotionally and financially. She further contended that BE’s abrupt withdrawal of financial support upon separation — which had included payment of school fees and general household expenses — had been deeply traumatic. The children maintained a close relationship with their biological father, who contributed approximately R7 000 per month towards their maintenance.
BE opposed the application and denied any legal obligation to support the children. His position was that the biological parents remained fully capable of maintaining the children and that whatever financial assistance he had provided during the marriage was entirely voluntary and limited to occasions when NT experienced temporary cash flow difficulties. He continued, pending finalisation of the divorce, to pay the children’s cellular phone costs.
The high court found that BE’s conduct during the marriage amounted to the conscious assumption of a parental role and that his withdrawal of support was impermissible in light of the children’s constitutionally protected right to parental care, which it held extended to stepparents who act in the stead of a biological parent. BE was ordered to pay cash maintenance of R40 000 per month, to retain the children on his medical aid, to pay up to R35 000 per month towards NT’s rental accommodation, and to contribute R1 million towards her legal costs.
BE’s application for leave to appeal and for the suspension of the order was dismissed by the high court. Leave to appeal was subsequently granted on petition by two Judges of the Supreme Court of Appeal, limited to the question of whether BE was liable to contribute pendente lite to the maintenance of the children.
Is a Rule 43 Order a “Decision”? The Jurisdictional Threshold Under the Superior Courts Act
Before the SCA could engage with the substantive questions raised by BE, it was required to determine a threshold issue: whether it had jurisdiction to entertain the appeal at all. This antecedent enquiry proved decisive.
This Court’s jurisdiction is derived exclusively from the Constitution and statute. Section 168(3) of the Constitution provides that the SCA may decide appeals in any matter arising from the high court or a court of similar status, save to the extent otherwise provided by legislation. That constitutional power must be exercised within the framework of the Superior Courts Act 10 of 2013.
In civil matters where the high court sits as a court of first instance, two jurisdictional requirements must be satisfied before an appeal can be entertained. First, leave to appeal must have been granted in terms of section 17 of the Act. Second, and critically, the ruling sought to be appealed must constitute a “decision” as contemplated in section 16(1)(a) of the Act. As confirmed in DRDGOLD Limited and Another v Nkala and Others [2023] ZASCA 9; 2023 (3) SA 461 (SCA), leave to appeal is a necessary but not a sufficient condition for jurisdiction. Where the ruling in question does not qualify as a “decision” within the meaning of the section, the SCA lacks jurisdiction entirely and the matter falls to be struck from the roll without any engagement with the merits.
Whether an order constitutes a “decision” for purposes of appeal is a question of law, not discretion. In United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others [2022] ZACC 34; 2022 (12) BCLR 1521 (CC); 2023 (1) SA 353 (CC), the Constitutional Court confirmed that the SCA is obliged to determine this question independently and is not bound by the assessment of the court a quo. Equally, the granting of leave to appeal by two Judges of the SCA on petition does not preclude the Court from enquiring into its own jurisdiction. A ruling that is not an appealable decision does not become justiciable merely because leave to appeal has been granted — a principle confirmed in Van Niekerk and Another v Van Niekerk and Another [2007] ZASCA 116; [2008] 1 All SA 96 (SCA), where the matter was struck from the roll despite leave having been granted.
Traditionally, as articulated in Zweni v Minister of Law and Order [1992] ZASCA 197; [1993] 1 All SA 365 (A); 1993 (1) SA 523 (A), a judgment or order was regarded as appealable if it was final in effect, definitive of the rights of the parties, and dispositive of a substantial portion of the relief claimed in the main proceedings. Over time, however, a more flexible approach has emerged. The UDM case confirmed that the interests of justice requirement applies equally in the SCA, that the traditional attributes are no longer exhaustive, and that the mere characterisation of an order as “interim” or “final” is not determinative. The interests of justice has become the paramount consideration informing the assessment of appealability, including in relation to interlocutory orders.
The Section 16(3) Statutory Bar: Parliament’s Deliberate Exclusion of Interim Maintenance Appeals
Central to the Court’s analysis was the express statutory prohibition contained in section 16(3) of the Superior Courts Act 10 of 2013, which provides, notwithstanding any other law, that no appeal lies from any judgment or order in proceedings in connection with an application by one spouse against the other for maintenance pendente lite. The order directing BE to pay R40 000 per month as cash maintenance pendente lite fell squarely within the ambit of this provision. So too did the ancillary orders sought to be appealed. The existence of a clear statutory bar was characterised by the Court as a weighty consideration against appealability, reflecting a deliberate legislative choice to exclude interim matrimonial orders from appellate scrutiny.
That legislative choice is not arbitrary. Rule 43 exists to secure the inexpensive, expeditious and provisional regulation of financial matters pending divorce, primarily for the protection of women and children. It levels the playing field during the interim phase of divorce proceedings by ensuring that neither party’s ability to maintain a reasonable standard of living, or to contest the main action, is prejudiced by a lack of resources. The structural inequalities that frequently characterise matrimonial disputes — and which typically disadvantage the economically weaker spouse — are an integral part of the context within which the rule operates, as recognised in SH v MH 2023 (6) SA 279 (GJ).
Non-appealability is a direct and necessary corollary of this rationale. Entertaining appeals against interim maintenance and costs orders would introduce delay, expense and fragmentation into proceedings deliberately designed to be summary in nature. The potential for multiple interlocutory applications, and protracted appellate proceedings before the divorce itself is finalised, carries obvious risks of prejudice — particularly to an impecunious spouse. It also creates scope for abuse by a recalcitrant litigant seeking to frustrate the interim relief regime.
These concerns were comprehensively addressed by the Constitutional Court in S v S and Another [2019] ZACC 22; 2019 (8) BCLR 989 (CC); 2019 (6) SA 1 (CC), where a direct constitutional challenge to section 16(3) was unequivocally rejected. The S v S case recognised that the adverse consequences of delayed maintenance on children reinforced the case for non-appealability, and that any real or perceived injustices flowing from an interim maintenance order are capable of amelioration through existing mechanisms — without resort to the appellate process. The SCA in the present matter aligned itself firmly with that approach, holding that the balance of prejudice favoured adherence to the statutory scheme.
The “Final in Effect” Argument: Can Common Law Development Rescue an Otherwise Non-Appealable Order?
BE’s primary argument in favour of appealability was that the high court had, in granting the rule 43 order, effectively developed the common law by recognising a duty of support resting on a stepparent. On this basis, it was contended that the order was final in effect, notwithstanding its interlocutory character, and that the interests of justice accordingly required the SCA’s intervention.
The Court rejected this submission as an overstatement of the high court’s reasoning. The order remained provisional and revisable in two important respects. In terms of Rule 43(6) of the Uniform Rules of Court, the order was susceptible to reconsideration by the high court upon a material change in circumstances. Beyond that, it remained inherently capable of correction or reversal by the trial court when the divorce action was finally determined after full ventilation of the evidence. The relief granted did not finally determine any right, nor did it dispose of any substantive portion of the relief claimed in the main action — which includes the dissolution of the marriage, the final determination of maintenance obligations, and the calculation of the accrual.
Critically, any legal conclusions reached by the high court were made in the limited context of rule 43 proceedings, pendente lite, and for the confined purpose of regulating interim relief on the facts then before it. Those findings do not bind the trial court, which remains entirely free to determine the stepchildren’s entitlement to maintenance afresh in the divorce proceedings on the basis of evidence to be fully presented. This lack of finality, viewed together with the comity owed to the trial court, militated strongly against appellate intervention.
The Court further cautioned that appealability cannot be made to depend upon a litigant’s own assessment of the prospects of success on the merits. BE’s argument was heavily predicated on his contention that the high court had erred in developing the common law, and that he enjoyed strong prospects of success on appeal. The Court, drawing on TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and Others [2023] ZASCA 63; 2023 (5) SA 163 (SCA), held that it is ordinarily inappropriate for the SCA to pronounce on a point of law merely to justify appellate jurisdiction, given that the merits may ultimately be resolved either way.
The TWK case also provided support for the Court’s observation that, whether or not the high court’s approach ultimately proves correct, its confirmation or rejection after a full trial — with the benefit of a complete evidentiary record and further reasoning — would be of considerably greater assistance to the SCA should the matter subsequently come on appeal. Premature appellate intervention, in other words, risked producing an authoritative pronouncement on an underdeveloped factual and legal foundation.
Where Does This Leave a Prejudiced Spouse? Rule 43(6), Section 173, and the Road Not Taken
The striking of the appeal from the roll inevitably raises a practical question of considerable importance to family law practitioners: what recourse remains available to a spouse who contends that a rule 43 order is patently erroneous or unjust?
The Court was at pains to identify the avenues of redress that remained open to BE, and by extension to litigants in analogous positions. The first and most readily available mechanism is a Rule 43(6) reconsideration application before the high court, upon proof of a material change in circumstances. The Court endorsed the view expressed in the S v S case that this is ordinarily the appropriate and primary avenue through which a manifestly incorrect interim maintenance order ought to be challenged. Its availability is not contingent upon the existence of appellate jurisdiction and it can be pursued without the delay and expense that appellate proceedings inevitably entail.
In exceptional cases, a higher court may additionally invoke its inherent power under section 173 of the Constitution to regulate its own process in the interests of justice, so as to remedy a patently unjust and erroneous order. Counsel for BE submitted from the bar that both the high court and the SCA possessed this power and that it ought to be exercised in the present matter. The Court acknowledged the existence of the power but declined to exercise it at appellate level. Drawing on Hanekom NO and Others v Nuwekloof Private Game Reserve Farm Owners’ Association [2024] ZASCA 154; 2025 (2) SA 128 (SCA), it held firmly that the inherent jurisdiction contemplated in section 173 does not extend to the assumption of jurisdiction not conferred by statute. Absent a “decision” within the meaning of section 16(1)(a) of the Superior Courts Act 10 of 2013, the SCA simply lacks jurisdiction, and that deficit cannot be cured by resort to inherent powers. The Hanekom case made plain that such powers exist to protect and regulate the court’s process — not to enlarge its statutory jurisdiction.
The Court also noted that past financial prejudice occasioned by compliance with a rule 43 order is, by its nature, temporary and remediable. The final reckoning at divorce provides an opportunity to right any interim imbalances, a consideration that substantially diminishes the case for urgent appellate intervention on grounds of irreparable harm.
For the practising family lawyer, the judgment carries a clear and salutary message. A rule 43 order, however strongly contested and however significant its financial consequences, is not the appropriate vehicle for the authoritative development of the common law relating to stepparent liability. That question — which remains of genuine legal interest and practical importance in an era of increasingly complex blended family arrangements — awaits resolution in proceedings where the full evidentiary record is before the court and where appellate oversight is constitutionally and statutorily available. Until then, Rule 43(6) and the inherent jurisdiction of the high court under section 173 remain the tools with which a prejudiced spouse must work.
Questions and Answers
What is the primary legal question the SCA was required to determine in this matter?
Before engaging with any of the substantive issues raised by the parties, the SCA was required to determine whether it had jurisdiction to entertain the appeal at all. The threshold question was whether the rule 43 order of the high court constituted a “decision” as contemplated in section 16(1)(a) of the Superior Courts Act 10 of 2013, without which the second jurisdictional requirement for an appeal could not be satisfied.
What are the two jurisdictional requirements for an appeal to the SCA in civil matters where the high court sits as court of first instance?
Two requirements must be satisfied. First, leave to appeal must have been granted in terms of section 17 of the Superior Courts Act 10 of 2013. Second, the ruling sought to be appealed must constitute a “decision” as contemplated in section 16(1)(a) of the same Act. The existence of leave to appeal is therefore necessary but not sufficient. Where the second requirement is absent, the matter falls to be struck from the roll without any engagement with the merits.
Does the granting of leave to appeal by two Judges of the SCA on petition confer jurisdiction on the Court?
It does not. The SCA is not precluded from enquiring into its own jurisdiction merely because leave to appeal has been granted. A ruling that is not an appealable decision does not become justiciable by virtue of the grant of leave. This was illustrated by the Van Niekerk case, where the matter was struck from the roll despite leave having been granted, and was reaffirmed in the present judgment.
What is the traditional test for appealability and how has it evolved?
The traditional test, as articulated in the Zweni case, required that a judgment or order be final in effect, definitive of the rights of the parties, and dispositive of a substantial portion of the relief claimed in the main proceedings. Over time, a more flexible approach has emerged. The UDM case confirmed that the interests of justice is now the paramount consideration informing the assessment of appealability, that the traditional attributes are no longer exhaustive, and that the mere characterisation of an order as “interim” or “final” is not determinative.
What does section 16(3) of the Superior Courts Act 10 of 2013 provide in the context of rule 43 orders?
Section 16(3) provides, notwithstanding any other law, that no appeal lies from any judgment or order in proceedings in connection with an application by one spouse against the other for maintenance pendente lite. This constitutes an express statutory bar to the entertainment of appeals against interim maintenance orders granted under rule 43, and was held by the Court to be a weighty consideration against appealability in the present matter.
Why did the Constitutional Court uphold the constitutionality of section 16(3) in the S v S case?
The Constitutional Court in the S v S case held that the non-appealability of rule 43 orders is directly connected to the purpose and rationale of rule 43 itself, which exists to secure the inexpensive, expeditious and provisional regulation of financial matters pending divorce, primarily for the protection of women and children. Entertaining appeals against such orders would introduce delay, expense and fragmentation into proceedings deliberately designed to be summary in nature, and would create scope for abuse by recalcitrant litigants seeking to frustrate the interim relief regime.
Can a litigant successfully argue that a rule 43 order is appealable on the basis that the high court developed the common law in granting it?
The Court rejected this argument in the present matter. Any legal conclusions reached in rule 43 proceedings are made in a limited and provisional context, for the confined purpose of regulating interim relief. They do not bind the trial court, which remains free to determine the relevant issues afresh on a full evidentiary record. The order therefore lacks the finality and definitiveness required to render it appealable, regardless of the legal reasoning employed by the high court in reaching it.
What role does the interests of justice enquiry play in the assessment of appealability of rule 43 orders?
The interests of justice enquiry is the paramount consideration and encompasses a balancing of several factors, including the finality and effect of the relief granted, whether the rights of the parties have been definitively determined, the extent to which the relief disposes of issues in dispute, considerations of convenience, expedition and delay, the risk of prejudice, the avoidance of piecemeal appeals, and the attainment of justice. As confirmed in the Von Abo case, this is not a closed list, and the enquiry remains fact-specific even in the context of rule 43 applications.
Does a litigant’s assessment of his prospects of success on appeal carry significant weight in the appealability enquiry?
It carries limited weight at best. The Court, drawing on the TWK case, cautioned that appealability cannot depend upon a litigant’s own assessment of the merits. It is ordinarily inappropriate for the SCA to pronounce on a point of law merely to justify appellate jurisdiction, given that the merits may ultimately be resolved either way. The strength of a party’s case on the substance does not transform an otherwise non-appealable order into an appealable one.
What is the significance of rule 43(6) as an avenue of redress for a party aggrieved by an interim maintenance order?
Rule 43(6) permits a party to approach the high court for a reconsideration of a rule 43 order upon proof of a material change in circumstances. The Court endorsed the view expressed in the S v S case that this is ordinarily the first and most appropriate avenue through which a manifestly incorrect or unjust interim maintenance order should be challenged. It can be pursued without the delay and expense of appellate proceedings and does not require the existence of appellate jurisdiction.
What is the scope of a high court’s inherent jurisdiction under section 173 of the Constitution in the context of rule 43 orders?
Section 173 of the Constitution empowers a higher court to protect and regulate its own process in the interests of justice. In exceptional cases, this power may be invoked to remedy a patently unjust and erroneous interim order. However, as the Court made plain by reference to the Hanekom case, section 173 does not extend to the assumption of jurisdiction not conferred by statute. It cannot be used to cure the absence of a “decision” within the meaning of section 16(1)(a) of the Superior Courts Act 10 of 2013, and its invocation at appellate level in rule 43 matters would contradict the very objectives that rule 43 is designed to achieve.
Is the financial prejudice suffered by a spouse who complies with an allegedly erroneous rule 43 order regarded as irreparable?
The Court held that it is not. Any financial prejudice occasioned by compliance with a rule 43 order is, by its nature, temporary and remediable. The final reckoning at the conclusion of the divorce proceedings provides an adequate opportunity to correct any interim imbalances. This consideration substantially diminishes the case for urgent appellate intervention on grounds of irreparable harm and weighs in favour of adherence to the statutory scheme.
What guidance does this judgment offer on the question of stepparent liability for maintenance?
The judgment offers no definitive guidance on this substantive question, and deliberately so. The Court declined to pronounce on whether the high court correctly recognised a duty of support resting on a stepparent, holding that such a pronouncement would be inappropriate in the absence of a full evidentiary record and proper appellate jurisdiction. The question of stepparent liability therefore remains to be authoritatively determined in proceedings where those conditions are satisfied.
What is the significance of the comity owed to the trial court in the appealability analysis?
The comity owed to the trial court is a relevant consideration that militates against premature appellate intervention. Because the trial court remains free to determine all substantive issues afresh on a complete evidentiary record, an appellate pronouncement at the interlocutory stage risks producing an authoritative finding on an underdeveloped factual and legal foundation. Permitting the trial process to run its course respects the institutional role of the court of first instance and ensures that any eventual appeal is properly grounded in a comprehensive record.
What is the ultimate practical significance of this judgment for family law practitioners?
The judgment reaffirms with clarity that a rule 43 order, however significant its financial consequences and however novel the legal questions it may engage, is not the appropriate vehicle for the authoritative development of the common law. The statutory bar in section 16(3) of the Superior Courts Act 10 of 2013 is robust and not easily circumvented by characterising an interim order as final in effect. Practitioners advising a client aggrieved by a rule 43 order must direct their attention to a reconsideration application under rule 43(6) and, in truly exceptional cases, to the inherent jurisdiction of the high court under section 173 of the Constitution, rather than to the appellate process.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator and Accrual Calculator.
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