The Western Cape Division has once again been called upon to restate what ought by now to be trite in every family law practice in the country: orders granted in proceedings under Rule 43 of the Uniform Rules of Court are not appealable, and a practitioner who advises otherwise does so at his or her peril. In Dicker NO v S.J.V.D.W (2026/006447) [2026] ZAWCHC 482 (7 September 2026) Pangarker J dismissed an application for leave to appeal against the refusal of a postponement in Rule 43 proceedings and against a costs contribution that included past legal costs, and went further by ordering the respondent’s attorneys to pay the costs of the application on an attorney and client scale de bonis propriis, inclusive of the costs of senior counsel. The judgment is reportable and repays careful reading, because it deals with two questions that practitioners continue to raise despite the settled authority against them, namely whether the refusal of a postponement in a Rule 43 application escapes the statutory bar in section 16(3) of the Superior Courts Act 10 of 2013, and whether an order for past legal costs is truly a costs contribution under Rule 43(1)(b). It also serves as a stern warning about the professional consequences of ignoring correspondence, ignoring the Constitutional Court and ignoring the Supreme Court of Appeal.
The facts and the procedural history
The parties were married in 1979. The wife instituted a defended divorce action in March 2025. She has long-standing and serious health difficulties, is frail, is constantly monitored by medical professionals and had been moved to a higher level of assisted living. On 30 July 2025 Cooke AJ appointed Tracey Dicker SC, a senior member of the Cape Bar, as her curator ad litem, and it was in that representative capacity that the Rule 43 application was issued on 15 January 2026 and served on the husband the same day. The husband had made a tender in respect of interim maintenance, accommodation, medical expenses and ancillaries, but he did not deliver a sworn reply within the ten days allowed, and by the time the application came before Pangarker J on the Third Division Motion Court roll on 9 March 2026 he was automatically barred from opposing it.
At or shortly after 17h00 on Sunday 8 March 2026, the evening before the hearing, the husband’s attorneys, Theron and Partners of Stellenbosch, served a formal postponement application on the wife’s attorneys, Catto Neethling Wiid. The request was that the Rule 43 application be postponed so that the husband could consult his attorney and prepare a condonation application with an answering affidavit. No condonation application was before the court on 9 March. The postponement application was vehemently opposed and fully argued. Pangarker J delivered an ex tempore judgment immediately, holding that the prejudice to the patient if a postponement were granted outweighed the prejudice to the husband, and refused the postponement with costs to stand over. The Rule 43 application was then argued on an unopposed basis by Ms Buikman SC, with the husband’s attorney and counsel remaining present in court, and the court adjourned to consider the order.
What followed is central to the costs finding. At 14h44 that afternoon, after the postponement had been refused and the Rule 43 application argued, Ms Vermaak of Theron and Partners emailed the judge’s registrar seeking leave to incorporate a confirmatory affidavit by an attorney and costs consultant, Ms CS van der Merwe, into the Rule 43 application before judgment. Ms Havermahl of Catto Neethling Wiid responded urgently, copying the registrar, pointing out that the husband was barred and that the postponement had been refused before the affidavit was filed, and described the attempt as irregular and opportunistic in the extreme. Before 09h00 on 10 March the registrar, at the judge’s request, informed the parties that the affidavit was not before the court and that a requested chambers meeting was declined because there was no point in convening one.
On 10 March 2026 the court granted the Rule 43 order, which included interim maintenance, accommodation and ancillary expenses, a costs contribution of R1 million payable in instalments, future legal costs and the costs of the application. Paragraph 1 of the order dealt specifically with the refusal of the postponement and awarded costs against the husband on an attorney and client scale. On 13 March Theron and Partners requested written reasons for the judgment and order insofar as they related to paragraph 1 and requested the audio recording of the hearing, indicating that the husband was considering an application for leave to appeal against that paragraph. The judge requested the transcribed ex tempore judgment, received it on 13 April, and on 29 April 2026 despatched written reasons for the refusal of the postponement, with the transcript attached, to all the legal representatives. On the same day the court amended paragraphs 4 and 5 of the Rule 43 order under Rule 42(1)(b) of the Uniform Rules of Court to adjust the dates on which the instalments of the costs contribution were to commence.
In the meantime, on 25 March 2026, Theron and Partners had emailed the registrar an application for leave to appeal to the Supreme Court of Appeal, alternatively the Full Court of the Division, against the whole of the judgment and order of 10 March. The grounds were that the court erred in refusing the postponement, erred in granting an order for payment of past legal costs, and erred in granting the costs of the postponement on a punitive scale. The registrar informed them that a hard copy of the application and the court file had to be delivered as required by Practice Directive 45B before a date could be allocated. On 2 April Ms Havermahl wrote to Theron and Partners recording that no appeal lies from a Rule 43 order, including a contribution to costs, that the application was not competent, that it did not suspend the order and that it should be withdrawn, failing which punitive costs would be sought. The court file was not delivered until the week of 8 to 12 June 2026, more than two months later and some three months after the orders in question. On 10 June Ms Havermahl again wrote, emphasising that no appeal lies against any judgment or order in connection with a Rule 43 application, including a postponement application, and that the order was not suspended. Written reasons for the Rule 43 order itself were delivered on 17 June 2026, and a further notice on 22 June warned that a costs order de bonis propriis would be sought. None of this produced a withdrawal.
The leave to appeal was set down for 2 July 2026, during the recess, on a day on which Pangarker J was presiding in the urgent Fast Lane court. Mr Felix, newly briefed for the husband, opened his argument by referring to the written reasons and it became apparent that he was unaware that an ex tempore judgment had been delivered on 9 March and that the transcript had been circulated with the written reasons in April. His instructing attorney, present in court, provided him with no visible assistance. Ms Buikman SC, to her credit, indicated that it was no fault of Mr Felix that his attorney had not briefed him with the transcript. The matter stood down so that counsel could obtain and read the judgment, the urgent matters were heard, and the application resumed at 14h15.
Section 16(3) of the Superior Courts Act as a complete bar to appealing the refusal of a postponement
The husband’s case rested on two propositions. The first was that an order for past legal costs in a Rule 43 application is not a costs contribution under Rule 43(1)(b) and is therefore capable of being appealed. The second was that an order refusing a postponement in Rule 43 proceedings is appealable because section 16(3) of the Superior Courts Act does not specifically refer to a postponement. Counsel submitted that refusals of postponements are generally appealable and that another court would reasonably come to a different conclusion on the postponement.
Pangarker J began with the text. Section 16(3) provides that, notwithstanding any other law, 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, for a contribution towards the costs of a pending matrimonial action, for the interim custody of a child when a matrimonial action between the parents is pending or about to be instituted, or by one parent against the other for interim access to a child in those circumstances. The subsection must be read with Rule 43(1), which applies whenever a spouse seeks relief in respect of maintenance pendente lite, a contribution towards the costs of a matrimonial action pending or about to be instituted, interim care of any child and interim contact with any child. The court held that section 16(3) clearly refers to relief falling under the categories in Rule 43(1)(a) to (d).
The court accepted Mr Felix’s point that section 16(3) does not specifically mention an order refusing or relating to a postponement, but identified what it described as a critical flaw in the argument. The operative words of the subsection are that no appeal lies from any judgment or order in proceedings in connection with such an application. A postponement application, as the court observed at the risk of stating the obvious, does not occur in isolation or independently of the main proceedings, whether those proceedings are civil or criminal. The husband applied for a postponement of the Rule 43 application on 9 March 2026 because he wished to bring a condonation application. The postponement therefore related to the main Rule 43 application, and it followed that the order refusing it was an order in the proceedings in connection with the applicant’s Rule 43 application.
That conclusion was fortified by the Full Bench decision of the Free State Division in EB v CB (A22/2020, Free State Division, Bloemfontein, 19 October 2020), in which Daffue J, with Nekosie AJ concurring, emphasised the words “any judgment or order in connection with” and held that there cannot be any doubt that this includes an order refusing an application for postponement in connection with an application by one spouse against the other for maintenance pendente lite and a contribution towards costs in a pending matrimonial action. Mr Felix argued that the EB case was not binding on the Western Cape Division. Pangarker J did not need to rest on precedent; she held that the finding in the EB case was correct and expressly aligned herself with that court’s interpretation of section 16(3). In a footnote the court also referred to Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) for the principle that a sensible meaning is to be preferred when interpreting a statutory instrument, and remarked that there should not have been any doubt about the wording of section 16(3) in the first place. The court accordingly accepted Ms Buikman’s submission that the order refusing the postponement on 9 March 2026 was not capable of being appealed, and held that section 16(3) constitutes a permanent bar on any attempt to appeal such an order.
The second proposition fared no better. The court recorded that in its written reasons of 17 June 2026 it had referred to the judgment of Binns-Ward J in AG v LG [2020] ZAWCHC 83, in which it was held that there is no obstacle to an applicant in a Rule 43 application seeking a costs contribution that includes past legal costs or costs already incurred in the main proceedings. Binns-Ward J had in turn relied principally on AF v MF 2019 (6) SA 422 (WCC), in which Davis J, after a comprehensive analysis of previous authorities and sections 9 and 39(2) of the Constitution, concluded that a court in a Rule 43 application for a costs contribution is entitled to consider legal costs already incurred, including debts incurred to fund such costs. The court also referred to RM v AM [2019] ZAWCHC 86, where Rogers J allowed costs related to interlocutory applications and an application to compel discovery on the basis that they fell within Rule 43(1)(b). Pangarker J held that decisions in the Division consistently treat past legal costs as falling within the category of a costs contribution under Rule 43(1)(b), that she shared those views, and that the husband’s submission that paragraph 4 of the 10 March order was not an order in terms of Rule 43(1)(b) could not be sustained. All the orders granted on 10 March 2026, including the order for past legal costs, were therefore not capable of being appealed because they were orders granted under or in terms of a Rule 43 application. The alleged unfairness of the order and the size of the contribution were, as the court put it, not issues for this judgment.
What S v S and BE v NT leave to the dissatisfied Rule 43 litigant
The court’s treatment of the higher authority is the part of the judgment that practitioners should commit to memory. Ms Buikman had referred the court to the Constitutional Court’s decision in S v S and Another 2019 (6) SA 1 (CC) and to the Supreme Court of Appeal’s judgment of 11 March 2026 in BE v NT and Others [2026] ZASCA 25. Pangarker J quoted paragraph 17 of the BE case, in which Govindjee AJA, writing for a unanimous court, described section 16(3) as a central consideration in the interests of justice analysis, held that cash maintenance pendente lite falls squarely within the subsection, and stated that the existence of a clear statutory bar is a weighty consideration against appealability, reflecting a deliberate legislative choice to exclude interim matrimonial orders from appellate scrutiny. The court read the BE case as sounding a reminder to parties and practitioners that there is an express statutory exclusion of the appealability of Rule 43 orders, and as entrenching the earlier finding of the Constitutional Court in the S v S case that parties are prevented from appealing Rule 43 orders in terms of section 16(3).
Pangarker J then set out her understanding of the remedies that the S v S case leaves open to a litigant aggrieved by a Rule 43 order. The first is Rule 43(6), which permits a variation of the order where there has been a change in material circumstances, albeit that the sub-rule has its limitations. The second arises in an exceptional case where there are no changed circumstances but where there is a need to remedy a patently unjust and erroneous order and the interests of justice would trump strict adherence to Rule 43(6), in which event the High Court may exercise its inherent power under section 173 of the Constitution.
The court stressed that for this route there must be no changed circumstances relevant to the litigant, the case would have to be exceptional and the interests of justice would have to prevail. The third is that a Rule 43 order is temporary by nature and lasts only until the issues in the divorce action are finally determined at trial. The Constitutional Court’s observation that Rule 43 orders often endure longer than expected because of the way divorces are handled, often by litigants and practitioners, rather than any deficiency in the rule, was cited, and the court noted that the dissatisfied litigant’s remedy is that all the issues, including the interim order, will be determined at a hopefully expeditious divorce hearing.
Mr Felix had argued that although the ex tempore judgment referred to Rule 43(6), that remedy was not available to the husband because there were no changed circumstances, and that this made it arguable that section 16(3) did not apply. The court held that the argument did not get out of the starting blocks. Despite the definitive statement of the Constitutional Court in the S v S case that section 16(3) serves as a legislative bar to an appeal of a Rule 43 order, the husband and his attorneys had paid little or no attention to the findings in the S v S case and the BE case. Ms Buikman’s practical point was also recorded: had leave been granted, the Rule 43 order would have been suspended for a year or more pending a Full Court hearing, and if that court found the refusal of the postponement to have been wrong, the Rule 43 application would simply have been referred back to a single judge. That, the court agreed, is not the purpose of Rule 43 proceedings when regard is had to section 16(3) and the S v S case. The court added, with reference to the S v S case, that the reason such orders are not appealable is precisely to avoid courts having to hear applications under section 18 of the Superior Courts Act to suspend orders, urgent appeals, applications for leave to appeal to the Supreme Court of Appeal and more. Both the order refusing the postponement on 9 March 2026 and the Rule 43 order of 10 March 2026, including the costs orders, were held not to be capable of being appealed and the application for leave to appeal was dismissed.
Costs de bonis propriis and the lesson for practitioners
The costs enquiry occupies the balance of the judgment and is the reason it will be cited beyond the family law context. Ms Buikman asked for costs on an attorney and client scale de bonis propriis against Theron and Partners on several grounds: her attorney had on three occasions informed them that the application was incompetent under section 16(3) and the correspondence was ignored; the request to withdraw was refused; the application was an abuse of process that delayed implementation of the costs contribution; court and administrative time were taken up during recess; the firm had embarrassed its own counsel by failing to brief him with a judgment that had been sent to everyone; and the firm was driving the application in circumstances where urgent, preferent matters had to wait. In reply Mr Felix contended that a personal costs order was inappropriate because the position on costs under section 16(3) was not settled, that the court was not bound by the EB case, that the refusal of a postponement was appealable, and, relying on MEC for Health, Gauteng v Lushaba 2017 (1) SA 106 (CC), that the firm was under no obligation to respond to correspondence warning that a de bonis propriis order would be sought.
Pangarker J approached the question with the appropriate caution. Costs are in the discretion of the court, punitive costs are not the order of the day, and an order that a legal representative be personally liable is exceptional. The court was mindful of the statement in Multi-links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd 2014 (3) SA 265 (GP) that legal practitioners are expected to pursue their clients’ rights and interests fearlessly and vigorously without undue regard for their personal convenience. It referred to Thunder Cats Investments 49 (Pty) Ltd and Others v Fenton 2009 (4) SA 138 (C), where le Grange J described such an order as unusual and far-reaching but nonetheless ordered counsel to pay costs jointly and severally with the respondents on an attorney and client scale because counsel’s persistence had put the opposition to unnecessary trouble and expense, and to Adendorffs Boerderye v Shabalala and Others [2017] ZASCA 37, where non-compliance with the rules of the Supreme Court of Appeal, a change of counsel and a lack of urgency led that court to characterise the attorney’s conduct as slack, unreasonable, discourteous and egregious. The court accepted that errors of law, failures to comply with the Rules and administrative oversights are daily occurrences in litigation that are not ordinarily visited with personal costs orders.
Against that standard the court summarised the conduct of Theron and Partners. The firm had irregularly attempted to place an affidavit before the court after the postponement was refused and the Rule 43 application heard, which, although preceding the leave to appeal, was indicative of how it elected to conduct the matter. Two sets of written reasons were requested with an expressed intention to seek leave to appeal, at which stage the firm should already have been alive to section 16(3), the S v S case and the BE case. It took more than two months to comply with the Division’s Practice Directives on delivery of the court file while insisting by email that a hearing date be allocated. It ignored a legitimate request to withdraw and two further notifications that section 16(3) was a bar, and refused to withdraw even under the threat of a de bonis propriis order on 22 June 2026. The court concluded that the firm was either ignorant of section 16(3) and the jurisprudence of the Constitutional Court and Supreme Court of Appeal through a lack of research, or simply failed or refused to appreciate its applicability, and noted that the argument on 2 July was silent on those judgments. Having had the transcribed judgment since 29 April and having been present in court when it was delivered, the responsible attorney failed to brief new counsel with it, causing him embarrassment in open court in the presence of colleagues, which the court described as negligent conduct smacking of a lack of care and diligence. On the Lushaba case point the court held that attorneys are officers of the court and should assist it, particularly where an exceptional and punitive costs order is sought against them personally, and that the failure to respond once again displayed a remarkable lack of care and concern.
Drawing the threads together, Pangarker J held that driving a hopeless case that is neither sanctioned nor competent in law had resulted in protracted proceedings, an escalation of costs and a waste of judicial and court time. As in Adams v Adams (WCC case no 23829/2012, 17 April 2014), where Gamble J found that the attorney had been the driving force behind a hopeless application, so too here. The respondent was a 68 year old man who relied on the legal advice that an application for leave to appeal was competent, and the court held that advice to be simply bad legal advice. Ignoring legislation and the decisions of the Constitutional Court and Supreme Court of Appeal in order to push for leave to appeal displayed reckless litigation, a lack of care, unreasonable conduct towards the applicant, her representatives and the court, and a failure properly to research and consider the law. There was no reason why an elderly client should bear the costs. The court was also alive to the human dimension: Rule 43 proceedings are meant to be expeditious, the applicant is a vulnerable and frail person under curatorship, and the interests of justice require that the divorce be finalised as soon as possible, yet the judge had been required to write a fourth judgment or set of reasons arising out of the March 2026 orders. The conduct was described as egregious and strongly deprecated, and the court distinguished it expressly from the situation of an attorney who has simply made a mistake or failed to comply with the Rules.
The judgment closes with a direct reminder to the profession. Practitioners who intend to advise clients that orders granted in Rule 43 proceedings, and by a footnote also orders under Rule 58 of the Magistrates’ Courts Rules in the Regional Courts, are capable of being appealed should know that such advice is bad in law, and that punting a useless case by insisting that such orders, including the refusal of a postponement in a Rule 43 application, are appealable may attract a personal costs order against the practitioner who embarks on that course. The order followed: the application for leave to appeal was dismissed, and Theron and Partners of Stellenbosch were ordered to pay the costs of the application on an attorney and client scale de bonis propriis, including the costs of senior counsel.
For practitioners the practical takeaways from the Dicker case are stark. Section 16(3) attaches to the proceedings, not merely to the substantive relief, so interlocutory rulings made within a Rule 43 application, including postponement refusals and the costs of those refusals, fall within the bar. A costs contribution that includes past legal costs is a Rule 43(1)(b) order in this Division and is equally immune from appeal. The remedies are Rule 43(6), the narrow section 173 route in an exceptional case, and the trial itself. An application for leave to appeal does not suspend a Rule 43 order, and an opponent who warns in writing that the application is incompetent has laid the foundation for a personal costs order if the warning is ignored. Finally, a litigant who is barred and who wishes to be heard should be advised to bring a proper condonation application timeously rather than a last-minute postponement application on a Sunday evening, because the court will weigh the prejudice to a vulnerable applicant heavily, and there is no second bite at that decision on appeal.
Questions and Answers
What is the source of the rule that Rule 43 orders cannot be appealed?
The bar is statutory. Section 16(3) of the Superior Courts Act 10 of 2013 provides that, notwithstanding any other law, 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, for a contribution towards the costs of a pending matrimonial action, for interim custody of a child where a matrimonial action is pending or about to be instituted, or by one parent against the other for interim access to a child in those circumstances. Pangarker J held that the subsection must be read with Rule 43(1) of the Uniform Rules of Court and that it clearly refers to relief falling within the categories in Rule 43(1)(a) to (d).
Does section 16(3) apply only to the substantive relief granted, or also to interlocutory rulings made within the Rule 43 application?
The Dicker case holds that it applies to both. The operative words are “any judgment or order in proceedings in connection with” the application. A postponement application does not exist independently of the main proceedings, and an order refusing a postponement of a Rule 43 hearing is therefore an order in the proceedings in connection with the Rule 43 application. Section 16(3) was described as a permanent bar on any attempt to appeal such an order.
Section 16(3) does not mention postponements. Why did that argument fail?
The court accepted that the subsection does not specifically refer to a postponement, but held that the argument had a critical flaw because it ignored the breadth of the words “in connection with”. The court aligned itself with the Free State Full Bench in EB v CB, which held that there cannot be any doubt that those words include an order refusing a postponement in connection with an application for maintenance pendente lite or a contribution towards costs. The court also referred to Natal Joint Municipal Pension Fund v Endumeni Municipality for the principle that a sensible meaning is to be preferred when interpreting a statutory instrument.
Was the Western Cape Division bound by the Free State decision in EB v CB?
Counsel for the respondent argued that it was not. The court did not decide the point on precedent. Pangarker J held that the finding in EB v CB was correct on the interpretation of section 16(3) and expressly aligned herself with it, so the outcome did not depend on whether the Free State Full Bench binds the Western Cape Division.
Is an order for past legal costs a “contribution towards costs” for purposes of Rule 43(1)(b) and section 16(3)?
Yes, in the Western Cape Division. The court relied on AG v LG, where Binns-Ward J found no obstacle to a Rule 43 applicant seeking a contribution that includes costs already incurred; on AF v MF, where Davis J concluded after an analysis of earlier authority and sections 9 and 39(2) of the Constitution that a court may consider legal costs already incurred, including debts incurred to fund them; and on RM v AM, where Rogers J allowed the costs of interlocutory applications and an application to compel discovery under Rule 43(1)(b). Pangarker J held that the respondent’s contention that the past costs order was not a Rule 43(1)(b) order could not be sustained, and that every order granted on 10 March 2026 was immune from appeal because it was granted under a Rule 43 application.
What did the Supreme Court of Appeal say in BE v NT, and how did the court use it?
In BE v NT the Supreme Court of Appeal, in a unanimous judgment delivered on 11 March 2026, held that section 16(3) is a central consideration in any interests of justice analysis, that cash maintenance pendente lite falls squarely within the subsection, and that the existence of a clear statutory bar is a weighty consideration against appealability, reflecting a deliberate legislative choice to exclude interim matrimonial orders from appellate scrutiny. Pangarker J treated BE v NT as a reminder to practitioners of the express statutory exclusion and as entrenching the Constitutional Court’s earlier finding in S v S that parties are prevented from appealing Rule 43 orders.
What remedies does S v S leave to a litigant who is dissatisfied with a Rule 43 order?
The court identified three. The litigant may apply under Rule 43(6) for a variation where there has been a material change in circumstances, subject to the limitations of that sub-rule. In an exceptional case where there are no changed circumstances but there is a need to remedy a patently unjust and erroneous order and the interests of justice require it, the High Court may exercise its inherent power under section 173 of the Constitution. Finally, a Rule 43 order is temporary and endures only until the divorce action is finally determined at trial, where all the issues are revisited.
Can a respondent argue that because Rule 43(6) is unavailable to him, section 16(3) should not apply?
No. Counsel argued that the respondent had no changed circumstances and therefore could not invoke Rule 43(6), which made it arguable that section 16(3) did not apply. The court held that the argument did not get out of the starting blocks in the face of the Constitutional Court’s definitive statement in S v S that section 16(3) is a legislative bar to appealing a Rule 43 order. The absence of a variation remedy does not open an appeal remedy that the statute excludes.
Does an application for leave to appeal suspend a Rule 43 order?
No. The applicant’s attorneys recorded in correspondence that the order was not suspended and that they would proceed to enforce it, and the court’s reasoning confirms why. Section 16(3) exists precisely to avoid courts having to entertain applications under section 18 of the Superior Courts Act to suspend orders, urgent appeals and applications for leave to appeal to the Supreme Court of Appeal, as the Constitutional Court explained in S v S. An incompetent application for leave to appeal cannot achieve the suspensive effect that a competent one would.
Why does the legislature exclude Rule 43 orders from appeal at all?
The court adopted the reasoning of the Constitutional Court in S v S that Rule 43 proceedings are meant to be expeditious and the relief is temporary. Ms Buikman SC pointed out that had leave been granted, the order would have been suspended for a year or more pending a Full Court hearing, and a successful appeal against the postponement refusal would simply have sent the Rule 43 application back to a single judge. The court agreed that this is not the purpose of Rule 43 when regard is had to section 16(3) and S v S.
On what legal basis may a court order an attorney to pay costs de bonis propriis?
Costs are within the court’s discretion, punitive costs are not the order of the day and an order making a legal representative personally liable is exceptional. The court referred to Multi-links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd for the principle that practitioners must pursue their clients’ interests fearlessly and vigorously, to Thunder Cats Investments 49 (Pty) Ltd v Fenton, where such an order was described as unusual and far-reaching but was nonetheless made against counsel whose persistence caused unnecessary trouble and expense, and to Adendorffs Boerderye v Shabalala, where slack, unreasonable and discourteous conduct was held to be egregious. Ordinary errors of law, non-compliance with the Rules and administrative oversights do not attract such an order.
What conduct crossed the line in the Dicker case?
The court listed the irregular attempt to place an affidavit before the court after the postponement was refused and the application heard; the request for reasons with an expressed intention to appeal when the firm should already have been alive to section 16(3), S v S and BE v NT; a delay of more than two months in delivering the court file as required by Practice Directive 45B while insisting on a hearing date; the refusal to withdraw despite three written warnings and a notice that a personal costs order would be sought; the failure to brief new counsel with the ex tempore judgment that had been circulated in April; and the failure to respond to the notice of the intended de bonis propriis application. The court concluded that the firm was either ignorant of the law through a lack of research or had failed or refused to appreciate its applicability.
Was the firm obliged to respond to the letter warning that a de bonis propriis order would be sought?
Counsel relied on MEC for Health, Gauteng v Lushaba to argue that no response was required. The court held that attorneys are officers of the court and should assist it, particularly where an exceptional and punitive costs order is sought against them personally, and that the failure to respond displayed a remarkable lack of care and concern. The letter was not merely an inter-party courtesy; it fixed the firm with knowledge of the consequences of persisting.
Why did the court decide that the respondent himself should not bear the costs?
The respondent was a 68 year old man who relied on the advice that leave to appeal was competent. Pangarker J held that advice to be simply bad legal advice, found that the firm was the driving force behind the hopeless application as the attorney had been in Adams v Adams before Gamble J, and concluded that there was no reason why an elderly client should bear the costs of an application that should never have been brought.
Does the judgment have any bearing on Rule 58 proceedings in the Regional Courts?
Yes. In reminding practitioners that advice that Rule 43 orders are appealable is bad in law, the court recorded in a footnote that the same applies to orders under Rule 58 of the Magistrates’ Courts Rules in the Regional Courts. Practitioners in the lower courts who advise clients to appeal interim matrimonial orders face the same risk of a personal costs order.
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, Court Day Calculator and Accrual Calculator.
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