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THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

Case 2023-131897
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED
27 February 2025

In the matter between:

C[…] R[…] E[…] Applicant

And

M[…] E[…] Respondent

This judgment has been delivered by uploading it to the CaseLines digital database
of the Gauteng Division of the High Court of South Africa, Johannesburg, and by
emailing the attorneys of record of the parties. The deemed date and time of the
delivery are 10H00 on 28 February 2025.


JUDGMENT


DU PLESSIS J

Introduction

[1] The applicant has brought the variation application in terms of Rule 42(1)(b) ,
read with Rule 43(6) of the Uniform Rules of Court. The application seeks to vary a
Rule 43 interim maintenance order that Acting Judge Abro granted on 3 February
2025. The applicant contends that the order was granted erroneously due to a patent
error or omission and that it must be corrected.

[2] The applicant argues that the Court, when granting the initial maintenance
order, failed to consider the financial disclosures of both parties properly .
Specifically, he claims that the necessary calculations were not conducted, resulting
in an order that exceeds his financial means. Furthermore, he alleges that the C ourt
overlooked that the r espondent earns R53,290.31 after tax from her business,
significantly affecting the assessment of her need for maintenance. The applicant
has engaged a forensic auditor to verify and present an accurate financial analysis to
support his position in this application. There was no such report or analysis in the
Rule 43 application. The applicant seeks to reduce or eliminate his spousal
maintenance obligations as part of the variation application.

[3] The application has been brought on an urgent basis, with the a pplicant
arguing that he will fall into contempt of Court by March 2025 if the order is not
varied. He maintains that he is financially incapable of complying with the current
maintenance order and that urgent relief is required to prevent legal consequences.

[4] The respondent contends that there is no patent error in the order , thus, Rule
42(1)(b) does not apply. Moreover, she argues that the a pplicant has failed to
demonstrate a material change in circumstances, a prerequisite for variation under
Rule 43(6). The r espondent also asserts that the applicant is introducing new
financial evidence, which he could have presented during the original Rule 43
proceedings. According to her, this constitutes an impermissible attempt to re- argue

proceedings. According to her, this constitutes an impermissible attempt to re- argue
the Rule 43 application. Lastl y, she disputes the urgency of the matter, stating that
the applicant had ample opportunity to address these concerns earlier.

Ad urgency
[5] I accept that any delay in adjudicating this application, which is needed to give
finality to the Rule 43 outcome, would risk further postponement in the maintenance

payment. Given that Rule 43 orders are intended to provide immediate relief, it is in
the interests of justice to address the application without unnecessary delay to
ensure that any outstanding obligations are either confirmed or appropriately varied
in accordance with the law.

The law
[6] Rule 42(1)(b) allows for a judgment or order to be varied or rescinded where
there is an ambiguity, patent error, or omission attributable to the court. Rule 43(6)
permits a party to apply for a variation of a maintenance order only if there has been
a material change in circumstances.

[7] Rule 43 orders are interim and are not intended to be appealed or frequently
amended.
1 A party seeking variation in terms of Rule 43(6) must demonstrate that
their financial or personal circumstances have materially changed in a manner that
significantly impacts their ability to comply with the order. Courts have consistently
emphasised that dissatisfaction with the original order does not justify variation.
2

[8] The courts have further held that a re- evaluation of the original order, or a
party regretting their initial stance, is insufficient to justify variation. T he
Constitutional Court recently, in S v S ,3 reinforced the principle that Rule 43
applications serve as a mechanism for swift and cost -effective interim relief during
divorce proceedings. The C ourt reaffirmed that Rule 43 orders are not subject to
appeal, underscoring their interim nature and the necessity for expeditious resolution
of disputes. The rationale for non-appealability is to prevent delays and curtail costs.
A long, drawn-out appeal process would contradict these objectives.
4

[9] The Court further acknowledged that litigants are not entirely precluded from
seeking a variation under Rule 43(6). However, Rule 43(6) is always available, albeit
with restrictions.
5 And while the current formulation of Rule 43(6) is restrictive, and in

1 S v S [2019] ZACC 22 par 33.

1 S v S [2019] ZACC 22 par 33.
2 (see Smit v Smit 1980 (3) SA 1010 (O); Greenspan v Greenspan 2000 (2) SA 283 (C))
3 [2019] ZACC 22.
4 Paragrah 43.
5 Paragraph 47.

some cases, this may warrant future reform, at present, variations are only permitted
under “changed material circumstances”.

[10] The applicant in the present case does not rely on Rule 43(6), as his financial
circumstances have not materially changed. Instead, he seeks to rely on Rule
42(1)(b), arguing that the C ourt made a patent error in assessing his financial
position. The normal rule is that a judgment, once given, is final and not subject to
amendment or supplementation by the Court that delivered it – that Court or judge is
functus officio.
6 The applicant has a two- pronged argument with regard to Rule
42(1)(b). Firstly, the judge made a patent error that needs to be rectified, and
secondly, the order is to be set aside under common law.

[11] However, Rule 42(1)(b) does not permit a party to introduce new evidence or
argument that was available but not submitted at the original hearing. Rule 42(1)(b)
of provides for the rescission or variation of a judgment or order where there is an
ambiguity, patent error, or omission, but only to the extent of such ambiguity, error,
or omission. Courts have consistently held that not every error or oversight justifies
rescission or variation—the error must be attributable to the Court itself rather than to
the parties or their legal representatives.

[12] In Seattle v Protea Assurance Co Ltd,
7 the Court reaffirmed that a patent error
or omission must be one that causes the judgment to fail to reflect the judicial
officer’s true intention at the time of pronouncement. The C ourt refused to amend its
judgment despite the emergence of an actuarial report that had been available but
was not presented before the judgment was delivered. It held that a court’s error
must be its own mistake rather than a failure by a party to submit relevant evidence.
Furthermore, if a judgment is clear and unambiguous, it cannot be varied simply
because new evidence or different calculations later become available. Once a court

because new evidence or different calculations later become available. Once a court
has issued a final judgment, it becomes functus officio. It cannot revisit its decision

6 Public Investment Corporation SOC Ltd v Trencon Construction (Pty) Ltd 2024 (1) SA 66 (SCA) at
para [12] – [14].
7 1984 (2) SA 537 (C).

unless it falls within a recogni sed exception, such as an ambiguity, clerical mistake,
or omission.8

[13] In the present case, the order was issued without a written judgment, making
it difficult to assess the judge’s reasoning in detail. However, the absence of a
judgment does not imply an error —instead, the order itself must be examined to
determine whether it was unclear, ambiguous, or contained a patent mistake. If the
order is clear and reflects what was pronounced in court, there is no basis for
variation under Rule 42(1)(b). As in Seattle , the applicant is not identifying a mistake
by the C ourt but is instead seeking to introduce new financial information that was
either not disclosed or not properly argued during the original hearing. The C ourt’s
order must be presumed to reflect its true intention, and unless the applicant can
demonstrate that it contains an ambiguity or a manifest error attributable to the
Court, the application for variation should fail.

[14] Courts have consistently held that Rule 42 cannot be used to introduce new
evidence or re-argue a case that has already been adjudicated. In First Consolidated
Leasing Corporation Ltd v McMullin,
9 the Court stated that a patent error causes the
judgment to depart from the Court’s real intention—it does not cover situations where
a party failed to present all relevant evidence at the hearing.

[15] In this case, the applicant does not meet any of these criteria as set out in
Rule 42(1)(b). His attempt to reintroduce financial evidence available during the Rule
43 hearing, but not properly presented, does not constitute a patent error under Rule
42(1)(b). As the Court held in Seattle, the fact that new financial information emerges
later does not render the original judgment erroneous —particularly when the judge
ruled based on the evidence placed before the Court.

[16] This leads to the conclusion that the applicant’s reliance on Rule 42(1)(b) is

[16] This leads to the conclusion that the applicant’s reliance on Rule 42(1)(b) is
misplaced. The Rule does not permit a party to circumvent the principle of finality in
litigation by introducing evidence that should have been included in the original

8 As outlined in Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A).
9 1975 (3) SA 606 (T) para ?.

hearing. It can also not serve as an appeal mechanism in R43 applications. The
Court’s order in this case was based on the evidence properly before it at the time.
Therefore, any omission or miscalculation resulting from the applicant’s inadequate
disclosure cannot be corrected under Rule 42(1)(b).

[17] The applicant contends that, in addition to Rule 42(1)(b), he is entitled to
common law relief for rescission of judgment on the grounds of fraud. To succeed on
this basis, he must establish that the successful litigant was a party to the fraud, that
the evidence presented was false, that it was fraudulently made with intent to
mislead, and that the false evidence diverged so materially from the actual facts that,
had the facts been placed before the C ourt, a different order would have been
granted. Furthermore, he must demonstrate that, but the Court would not have
granted the order in question for the fraud. Importantly, courts have held that the
mere late discovery of a document that contradicts a judgment does not justify
variation—it must be shown that the successful litigant deliberately and fraudulently
suppressed the document and that the opposing party only became aware of its
existence after judgment.
10

[28] However, the applicant fails to meet this threshold. His forensic audit
report relies on evidence before the C ourt during the Rule 43 proceedings.
The respondent fully disclosed her financial position through her statements
and financial disclosure form, which were attached to her affidavit in that
application. These documents were always available to the applicant and his
legal representatives. There is no basis to claim that the evidence was false
nor that material financial information was deliberately concealed from the
Court. The applicant is, in effect, attempting to re- argue the Rule 43
application by reframing it as a fraud- based rescission despite having had full
access to the same financial information during the original proceedings.

access to the same financial information during the original proceedings.
Consequently, his claim of fraud is without merit and should be dismissed.


10 Port Edward Town Board v Kay 1994 (1) SA 690 (D) para ?.

Conclusion
[18] In S v S,11 the Constitutional Court reaffirmed that Rule 43 orders are interim
and not subject to appeal to prevent prolonged litigation and escalating costs. While
Rule 43(6) allows for variation, this is limited to cases where a material change in
circumstances occurs, not as a means to challenge the original ruling.

[19] The applicant’s reliance on Rule 42(1)(b) is misplaced, as he is not identifying
a patent error by the Court but rather seeking to introduce new forensic audit that
was available but not adequately disclosed during the initial proceedings. An order
that reflects the C ourt’s actual intention when it was given cannot be varied simply
because a party regrets their prior disclosures or wishes to supplement their case
with additional evidence. The onus was on the applicant to present a full and
accurate financial picture in the Rule 43 application. Having failed to do so, he
cannot now seek relief under Rule 42(1)(b). The application must , therefore, be
dismissed.

[20] While the respondent has sought a punitive costs order, I do not find that the
applicant’s conduct warrants such a sanction. A punitive costs order is reserved for
cases of frivolous litigation, abuse of process, or conduct that unnecessarily inflates
costs, none of which have been established here. Consequently, the applicant will be
liable for party and party scale costs . While this is a somewhat unusual point in law
in an urgent matter, the R67A scale will be scale B.

Order
[21] The following order is made:
1. The application is dismissed with costs , which costs are to be taxed on
scale B.

WJ du Plessis
Judge of the High Court
Gauteng Division, Johannesburg


11 [2019] ZACC 22.

Heard on: 25 February 2025
Decided on: 27 February 2025

For the applicants:

H Patel instructed by Rademeyer Attorneys
For the respondents R Andrews instructed by Barnard Incorporated