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The recent judgments confirming the constitutionality of s 16(3) of the Superior Courts Act 10 of 2013 and r 43 of the Uniform Rules of Court (and the non-appealability of r 43) in S v S and Another 2019 (6) SA 1 (CC) and CT v MT and Others 2020 (3) SA 409 (WCC) respectively, have raised the question whether, and to what extent, orders granted under r 58 of the Magistrates’ Courts Rules, which is similarly worded to r 43, may be reconsidered by the High Court. This question has recently received judicial consideration in EB v CB (FB) (unreported case no A22/2020, 22-10-2020) (Daffue J (Nekosie AJ concurring)) in an appeal from the regional court.

The purpose of this article is to show that the judgment in EB v CB was wrongly decided and r 58 orders are, in fact, subject to reconsideration to the extend indicated below. To motivate my contention, it is prudent to first briefly discuss the non-appealability of r 43 pursuant to the provisions of s 16(3) of the Superior Courts Act.

The constitutionality of s 16(3) of the Superior Courts Act

Section 16(3) of the Superior Courts Act expressly provides that the matters referred to in r 43 are not appealable. In S v S the legality and constitutionality of s 16(3) were challenged on the grounds that it infringes on the following constitutional rights –

• the best interest of the child-right;
• the right of equality before the law; and
• the right of access to the courts.

The Constitutional Court (CC) dismissed the contentions raised on behalf of the applicant and found in respect of the alleged grounds of unconstitutionality as follows:

• Allowing appeals in r 43 proceedings would entail significant delays, the cost of which would weigh disproportionally on financially vulnerable spouses, especially the wives, who generally launched r 43 applications. An appeal process was, moreover, susceptible to abuse by recalcitrant spouses, to the detriment of the interests of their children. The detrimental impact on the children of delayed maintenance payments far outweighed the danger of an erroneous interim order (S v S at paras 31 – 35).
• Infringement of the right to equality before the law would arise only if the differentiation between litigants in r 43 proceedings and other litigants were irrational, which it was not. The prohibition in s 16(3) bore a rational connection to the legitimate government purpose of preventing delays and curtailing costs (S v S at paras 37 and 41 – 44).
• It was not axiomatic that non-appealability per se amounted to an unconstitutional denial of a litigant’s right of access to court. The question was whether it passed constitutional muster, which in this case it did (S v S at para 48), and the litigants’ right, under r 43(6), to vary their orders ameliorated any injustice where changed material circumstances might emerge (S v S at paras 49 and 56 – 57).

It is significant to note that the CC did not deal in its judgment with the non-appealability of an r 43-judgment on the basis that such an order is not final or not of final effect, and for this reason is not appealable. It must be accepted that the CC must have regarded an r 43-judgment in principle appealable, were it not for the express provisions of s 16(3) of the Superior Courts Act. (To the extent that Rogers J’s remark in CT v MT and Others at para 33 is meant to say that r 43-orders are also non-appealable being interim in nature, his view cannot be supported (see Tshwane City v Afriforum and Another 2016 (6) SA 279 (CC)).

The CC, however, and notwithstanding its finding that s 16(3) of the Superior Courts Act passes constitutional muster and acknowledged that r 43-orders may be –

• unjust because they may be enforceable for longer than initially anticipated (S v S at para 55);
• patently unjust and erroneous and not able to be amended due to the absence of changed circumstances (as required in r 43(6) for the amendment of an order) (S v S at para 58).

In this regard, the CC recognised that most r 43-applicants are mothers in financial distress (S v S at para 3) and made certain obiter ‘suggestions’ on how the above r 43-problems could be addressed:

• In respect of the unintended duration of an r 43-order courts should ensure that divorces are given preferential dates and complex divorce matters should be actively case managed to prevent delays in the finalisation of such divorces (S v S at para 55).
• In cases where an order is patently unjust and erroneous with no changed circumstances, the court should exercise its inherent power to regulate its own process in the interest of justice (S v S at para 58).

The judgments of S v S and CT v MT are not beyond criticism, but I deem it unnecessary for purposes of this article to deal with those criticisms herein.

I contend that the judgment in S v S has no effect on the question of the appealability of r 58-orders in the regional courts, for the following reasons:

• The Magistrates’ Courts Act 32 of 1944 has no provision corresponding with s 16(3) of the Superior Courts Act.
• The regional court, absent changed circumstances and being a creature of statute, is not possessed with the inherent power in the event that an order is patently unjust or erroneous to regulate its own process in the interest of justice, as the High Court does.

Appealability/reviewability of r 58 orders in the regional court

Rule 58 of the Magistrates’ Courts Rules is a special rule governing certain specific applications in contrast with the provisions of r 55, which govern magistrates’ courts applications in general.

Rule 58 provides that orders may be granted in matrimonial matters in respect of the following –

• interim maintenance;
• a contribution towards the costs of a pending matrimonial action;
• interim care of any child; or
• interim contact with any child.

In DE van Loggerenberg Jones & Buckle: The Civil Practice of the Magistrates’ Courts in South Africa (Cape Town: Juta 2019) vol 1 (at 588-588A) it is submitted, relying on the fact that the Magistrates’ Courts Act and rules do not contain a similar provision as s 16(3) of the Superior Courts Act, that r 58-orders are interlocutory and are thus not appealable.

Appeals in the magistrates’ court are regulated by s 83 of the Magistrates’ Courts Act, which reads as follows:

‘Subject to the provisions of section 82, a party to any civil suit or proceeding in a court may appeal to the provincial or local division of the Supreme Court having jurisdiction to hear the appeal, against –

(a) …

(b) any rule or order made in such suit or proceeding and having the effect of a final judgment, including any order under Chapter IX and any order as to costs’ (my italics).

Notwithstanding the fact that the Magistrates’ Courts Act and rules do not contain any provision similar to s 16(3) of the Superior Courts Act, the court in EB v CB applied s 16(3) of the Superior Courts Act to an appeal from the regional court, ignoring the fact that s 16 only deals with appeals against decisions of the high court as court of first instance.

Section 83(b) expressly provides that any order as to costs is appealable, and as such, a cost order in r 58-proceedings is without question appealable. In the adjudication of the costs on appeal, the merits of the matter by necessity need to be considered by the court of appeal.

An order in terms of r 58 would also be appealable in terms of s 83(b) if such order has the effect of a final judgment. An order, albeit interim in duration, may have the effect of a final order, and such an order would in terms of s 83(b) of the Magistrates’ Courts Act, be appealable.

Albeit that a pending matrimonial dispute between spouses is a jurisdictional requirement for relief in terms of r 58-applications, such an application remains an independent proceeding and is totally separate from the divorce action and the relief sought and granted therein. An r 58-application has no bearing on the outcome of the divorce action.

As such an r 58-order cannot be said to be ‘interlocutory’ (see also Pretoria Garrison Institutes v Danish Variety Products (Pty) Limited (1) [1948] SA 839 (A) at 870 and South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd (3) [1977] SA 534 (A) at 549).

An order to make a contribution towards the costs of the other party also has the effect of a final order on the party at the receiving end of such an order, albeit that the party favoured with an order for a contribution towards costs may approach the court for a further contribution if the earlier contribution is  proved to be inadequate. There could be no question that an order to make a contribution towards costs is not ‘interlocutory’.

The refusal of any of the relief anticipated in r 58 would constitute an order final in effect and such refusal is appealable in terms of s 83(b) of the Magistrates’ Courts Act (see Van Niekerk and Another v Van Niekerk and Another 2008 (1) SA 76 (SCA) at 78G-I and Knox D’Arcy Ltd and Others v Jamieson and Others 1996 (4) SA 348 (A) at 358B-359G).

Rule 58 should thus be regarded as an order having final effect at least in respect of the refusal of any relief sought under r 58, orders for the payment of a contribution towards costs and costs orders.

What could be done about an r 58-order that is from its inception blatantly unjust and erroneous? The regional court, unlike the High Court, is not enjoined with the inherent power to regulate its own process and is only enjoined in terms of r 58(6) to vary its own order in the event of a subsequent material change taking place in the circumstances of either party or a child, or the contribution towards costs proving inadequate.

If a blatantly unjust or erroneous r 58-order is not subject to an appeal the order shall, absent a subsequent material change taking place in the circumstances of either party or a child, or the contribution towards costs proves to be inadequate, remain in force until the completion of the divorce action and that may take years. In such an event, an aggrieved party would thus be left in the proverbial judicial desert if they have no right of appeal.

The CC in Tshwane City ((op cit) at paras 40 – 41 and 179) has stated that the common-law requirements for the appealability of interim orders – whether the interim order appealed against had a final effect or was dispositive of a substantial portion of the case – had been subsumed under the constitutional interests of justice standard.

If the appeal of an r 58-order would best serve the interests of justice, then the right of appeal should be allowed no matter what the pre-Constitution common-law impediments might suggest.

For this reason, also any r 58-order that is from its inception blatantly unjust or erroneous, even if considered ‘interim’, should be subject to reconsideration by the High Court in terms of the Constitution, be it by means of an appeal or review of the impugned decision.

Where the rights of minor children are at stake, it is also open to an aggrieved parent in the event of an order being blatantly unjust or erroneous, to approach the High Court as upper guardian of a minor for the reconsideration of the order. The best interest of minor children shall be paramount (SW v SW and Another 2015 (6) SA 300 (ECP)).

Jones and Buckle’s bald contention that orders under r 58 are not appealable because they deem such orders ‘interlocutory’, is for the above reasons in my view incorrect and cannot be supported.

Conclusion

I thus contend that EB v CB was wrongly decided and should not be followed and that r 58-orders are appealable in respect of the refusal of any relief sought under r 58, orders for the payment of a contribution towards costs and costs orders. An aggrieved party has an automatic right to appeal such orders in terms of s 83(1) of the Magistrates’ Courts Act.

Orders under r 58 that are from inception blatantly unjust or erroneous, are reviewable in terms of the Constitution by the High Court with jurisdiction, and an order involving the rights of a minor child, by the High Court in terms of its inherent powers as the upper guardian of all minor children within its area of jurisdiction.

Danie van der Merwe BIuris (UFS) LLB (Unisa) LLM (NWU) is an advocate at the South Cape Society of Advocates in George.

This article was first published in De Rebus in 2021 (March) DR 20.