SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Reportable
CASE NO: 2026-006447
In the matter between:
TRACEY AMANDA DICKER N.O.
(in her capacity as curator ad litem of
P[...] H[...] V[...] D[…] W[...] Applicant
(Born U[...] )
And
S[...] J[...] V[...] D[...] W[...] Respondent
Coram: Pangarker J
Hearing dates: 2 July 2026
Judgment delivered: 7 September 2026
Summary: Appealability of refusal of postponement application and costs
contribution in Rule 43 application – Respondent applies for leave to appeal orders
granted in Rule 43 proceedings - Section 16(3) of the Superior Courts Act 10 of 2 013
is a complete legal bar to appeals of Rule 43 orders – Is the refusal of a postponement
application in Rule 43 proceedings, an order as contemplated in section 16(3)? –
Despite several requests and warnings that section 16(3) and recent Constitutional
Court and Supreme Court of Appeal decisions confirm that Rule 43 orders are not
appealable, the Respondent’s attorneys persisted with a leave to appeal application –
The conduct of the Respondent’s attorney(s) warrants an order of costs on an attorney
and client scale de bonis propriis - Application for leave to appeal dismissed.
ORDER
1. The application for leave to appeal is dismissed.
2. The Respondent’s legal representatives, Theron & Partners /Vennote,
Stellenbosch, are ordered to pay the costs of the leave to appeal application on
an attorney and client scale, de bonis propriis which shall include the costs of
senior counsel.
JUDGMENT
PANGARKER J
Introduction
[1] The respondent seeks to appeal orders refusing an application for
postponement and costs contribution granted in Rule 43 proceedings heard in March
2026. The application was opposed and despite the applicant alerting the
respondent’s attorney that the orders are not capable of appeal and should be
withdrawn, the respondent and his attorneys have persisted with the application for
leave to appeal.
Issues to decide
[2] Two issues arise for determination:
2.1 Whether the leave to appeal application is competent; and
2.2 Whether an order of costs de bonis propriis on an attorney and client scale
should be granted against the firm of attorneys representing the
respondent, Theron and Associates of Stellenbosch.
Brief background to the Rule 43 application
[3] In order to address the above, it becomes necessary to set out the relevant
chronology of the matter and other material aspects. The parties are referred to as in
the Rule 43 application and with reference to the legal representatives, I simply refer
to them as “attorneys”, so as to not confuse them with counsel briefed in the matter.
[4] The parties were married in 1979 and are currently embroiled in a defended
divorce action instituted by the wife under case number 2025 -036604 in March 2025.
She is the plaintiff and has long-standing medical issues. In 2000, she was diagnosed
with stage 3 breast cancer and underwent a bilateral mastectomy. At the time of the
Rule 43 application, she was in remission.
[5] In 2019, she was diagnosed with osmotic demyelination syndrome which led to
structural brain damage and in 2024, with temporal lobe epilepsy and mild
dysexecutive disorder. She received treatment for chronic obstructive pulmonary
disease, causing breathing difficulties . She is frail, is constantly monitored by medical
professionals and was moved to a higher level of assisted living, also as a result of a
fall in December 2025 which caused a stable pelvic fracture.
[6] It is, unfortunately necessary to point out an incident which occurred in early
July 2025 . The applicant (wife) was temporarily residing with one of the parties’
daughters and attempted to commit suicide by jumping from the balcony of a n 8th floor
building. As a result, she sustained serious injuries from the fall and was treated in the
intensive care unit of a private hospital , followed by in-patient rehabilitation and further
treatment for her mental health.
[7] The applicant also received treatment from a psychiatrist and at the time of the
Rule 43 application, she resided in the northern suburbs.
[8] On 30 July 2025, Cooke AJ granted an order appointing Tracey Dicker SC, a
senior member of the Cape Bar, as the curator ad litem for the wife, (patient). The
Rule 43 application was issued on 15 January 2026 under case number 2026-006447.
The postponement application and Rule 43 proceedings
[9] On 9 March 2026, the Rule 43 application came before me for hearing on the
Third Division Motion Court roll. The parties were represented by attorneys and
counsel. The husband (respondent) had made a certain tender in respect of his wife’s
interim maintenance , accommodation, medical expenses and ancillaries , pending
finalisation of the divorce action.
[10] The Rule 43 application (“the application”) was unopposed and was served on
the respondent on 15 January 2026. It was evident that the parties , through their legal
representatives, had engaged on the disputed issues in the matrimonial matter . The
time to deliver a sworn reply to the application had lapsed 10 days after the application
was served and thus, by 9 March 2026, the respondent was automatically barred from
opposing the application.
[11] At, or shortly a fter 17h00 on Sunday 8 March 2026, the attorneys of the
respondent served a formal postponement application on the applicant ’s attorneys,
Catto Neethling Wiid of Cape Town. The request , in summary, was that the Rule 43
application set down for the next day, be postponed to another date for the respondent
to be afforded time to consult with his attorney and prepare a condonation application
with an answering affidavit. No condonation application was before the Court on 9
March 2026.
[12] At this juncture I do not intend to set out additional detail regarding the
application for postponement. As will be evident from the further chronology below, the
postponement application was vehemently opposed and was fully argued.
[13] After hearing counsel for the parties on the postponement an d an appropriate
costs order , and having considered the application, I delivered an ex tempore
judgment immediately. The judgment concluded that , amongst other aspects, the
prejudice to the patient/applicant were a postponement to be granted , outweighed
prejudice to the respondent. An order was thus granted refusing the postponement
with costs to stand over for determination of the Rule 43 order.
[14] The Rule 43 application was argued by Ms Buikman SC on behalf of the
applicant and the legal representatives (attorney and counsel) of the respondent
remained present in court during the application. After hearing counsel, a proposed
draft order was handed up on the applicant’s behalf . I adjourned the proceedings
which stood down for consideration of an order and reasons to be delivered later.
Events after the Rule 43 hearing
[15] Having excused the legal representatives after hearing the Rule 43 application,
and on return to chambers, I considered the papers, submissions, authorit ies and
suggested draft order in more detail. It thus came as a surprise that Ms Vermaak of
Theron and Partners emailed my registrar1, seeking leave of the Court that the
confirmatory affidavit by attorney and costs consultant, Ms CS van der Merwe, be
incorporated in the Rule 43 application before judgment and in respect of costs.
[16] The email sought, quite irregularly, to place the affidavit before me after the
postponement application was refused and the Rule 43 was argued on an unopposed
basis. Unsurprisingly, Ms J Havermahl of Catto Neethling Wiid responded urgently to
her colleague’s email and included the registrar in the correspondence. Ms Havermahl
informed Theron and Partners that in respect of the Rule 43, the respondent was
barred, and his postponement application was refused prior to the filing of the van der
Merwe confirmatory affidavit. The attempt to thus place the affidavit before the court in
those circumstances were described as “irregular and opportunistic in the extreme.” 2
Ms Havermahl requested that the affidavit be withdrawn , failing which appropriate
steps would be taken and I would be approached urgently the next day regarding the
irregular affidavit.
[17] Prior to 09h00 on 10 March 2026, at my request, the registrar informed the
legal representatives th at the postponement application was refused and an ex
1 At 14h44
legal representatives th at the postponement application was refused and an ex
1 At 14h44
2 Catto Neethling Wiid letter, 9 March 2026
tempore judgment was delivered on 9 March ; that at that stage, the van der Merwe
affidavit was not before the Court and in those circumstances, the respondent ’s
attorneys could not subsequently seek/request to place the affidavit before the Court.
The legal representatives were further informed that while the affidavit would be
placed in the Court file, it was not before the Court. It ordinarily meant that the request
for a meeting with me in chambers, was declined as there was no point in convening a
meeting.
[18] On 10 March 2026, I granted an order in the Rule 43 application which included
the payment by the respondent of the patient’s interim maintenance, accommodation
and ancillary expenses 3; a costs contribution of R1 million which could be paid in
instalments as well as future legal costs and costs of the application. On the first page
of the order and with specific reference to the refusal of the postponement application
of 9 March 2026, I granted a costs order against the respondent on an attorney and
client scale4.
[19] The 10 March 2026 order was issued by the registrar on 11 March 2026 and
emailed to all the legal representatives . On 13 March 2026, Ms Vermaak emailed the
registrar, requesting that I be advised that they (the attorneys) request ed written
reasons in respect of the 10 March 2026 order. The e -mail also requested the audio
recording of the Rule 43 application heard on 9 March. Attached to this e -mail, which
included the legal representatives of the applicant, was a document called ‘R equest
for written reasons’.
[20] The request for written reasons sought written reasons for the “judgment and
order, insofar as they relate to paragraph 1 of the order” 5. The request noted that an
ex tempore judgment was delivered in respect of the postponement application and
indicated that the respondent was considering an application for leave to appeal
against paragraph 1 of the order. It is important to state that paragraph 1 of the order
against paragraph 1 of the order. It is important to state that paragraph 1 of the order
was the refusal of the postponement with costs on an attorney and client scale. I
3 Some of these orders were in line with the tender and the suggested draft order handed in on 9 March
2026.
4 Order 10 March 2026, par 1 – Costs stood over from 9 March 2026
5 Request for written reasons dated 13 March 2026
considered the correspondence and requested, on the same day, 6 that the registrar
obtains the transcribed ex tempore judgment in relation to the refusal of the
postponement application.
[21] The transcript of the ex tempore judgment was received on 13 April 2026 and I
proceeded to draft my response to the request for written reasons for the refusal of the
postponement. For purposes of this judgment, suffice to point out that the written
reasons largely echoed the ex tempore judgment but also referred to certain
authorities regarding the principles related to postponements , which the ex termpore
judgment does not do. A copy of the transcribed ex tempore judgment was attached to
the written reasons for refusal of the postponement application and these were
despatched electronically to all the legal representatives on 29 April 2026.
[22] During the last week of the term, o n 25 March 2026, Theron and Partners
indicated to the registrar per email that the respondent intended to apply for leave to
appeal. Attached to the email was an application for leave to appeal to the SCA,
alternatively the Full Court of th is Division, against the whole of the judgment and
order granted on 10 March 2026. In summary, the findings of fact and rulings of law
appealed against are briefly, as follows:
i. The Court erred in refusing the postponem ent and such refusal
constitutes a misdirection.
ii. The Court erred in granting an order related to payment of past legal
costs.
iii. The Court erred in granting costs of the postponement application on
a punitive scale.
6 13 March 2026
[23] The leave to appeal application also stated that the application may be
supplemented on receipt of reasons for the judgment and order and that exceptional
circumstances exist which warrant the granting of leave to appeal.
[24] The registrar informed Theron and Partners on the same day that they were
required to file a hard copy of the leave to appeal application and the court file7; that
she had requested a copy of the ex tempore judgment, that recess would commence
on Monday 30 March and that the second term commenced 13 April. They would be
advised of a date once the steps indicated were fulfilled.
[25] Further correspondence in the Court file dated 2 April 2026 indicates that Ms
Havermahl alerted Theron and Partners to the fact that no appeal lies from an order
granted in terms of Rule 43, including a contribution to costs; that the leave to appeal
was not competent, does not suspend the Rule 43 order and should be withdrawn,
failing which a punitive costs order would be sought. In addition, Ms Havermahl also
indicated that the respondent had failed to comply with certain of the monetary
orders in the Rule 43 order and he was given until close of business on 2 April to do
so.
[26] I must point out that when the leave to appeal was emailed to the registrar, the
respondent’s attorney had as yet not brought the file to her as required by Practice
Directive 45B. I thus issued no directive in respect of the leave to appeal hearing
date. In my view at the time, a Rule 43 order which incl udes a costs contribution and
a refusal of a postponement application in Rule 43 proceedings , were not capable of
being appealed in light of the provisions of section 16(3) of the Act . As requested,
written reasons were delivered in respect of the refusal of the postponement
application.
7 In terms of Practice Note 45B
[27] On 29 April 2026, in terms of Rule 42(1)(b) , I granted an order amending
paragraphs 4 and 5 of the Rule 43 order dated 10 March 2026. The amendment
related only to the dates on which the respondent was to commence his instalment
payments of the costs’ contribution. All the other orders in the Rule 43 order
remained the same. At this stage, the end of April 2026, there was still no clarity as
to the leave to appeal application and I was advised by the registrar that as the Court
file had still not been d elivered to her, no date could be allocated for the hearing of
the leave to appeal. The amended order was emailed to all legal representatives on
29 April 2026.
[28] On 1 June 2026, attorney Ms Haywood of Theron and Partners , emailed the
registrar noting th at no date had yet been allocated for the hearing of the leave to
appeal and reiterated that they awaited a hearing date. On checking with the
registrar, the status quo remained: the registrar had requested Theron and Partners
to deliver the Court file to her and still awaited same.
[29] During the week of 8 to 12 June, Theron and Partners eventually delivered the
Court file plus an application for leave to appeal to my registrar, who placed the file
and application before me for allocation of a hearing date . This signified the first time
that the file and leave to appeal w ere formally delivered. It is also important to note
that at this stage, three months had passed since the granting of the order refusing
the postponement and the Rule 43 order. There was no withdrawal of the leave to
appeal application and I decided to draft reasons for the Rule 43 order more
especially as the leave to appeal included an attack on the costs contribution related
to past legal costs. I emphasise that the Rule 43 application on 9 March 2026 was
unopposed.
[30] On 10 June 2026, Ms Havermahl addressed correspondence to Theron and
Partners informing them that notwithstanding drawing their attention to section 16 (3)
Partners informing them that notwithstanding drawing their attention to section 16 (3)
of the Superior Courts Act, which provides that no appeal lies against Rule 43 interim
relief, the respondent was nonetheless persisting with the application for leave to
appeal. She indicate d that “it is the dismissal of your client's postponement
application that is at the heart of your client's appeal”8.
[31] Significantly, Ms Havermahl also emphasised that it was trite that no appeal
lies against any judgment or order in connection with a Rule 43 application, including
a postponement application. Furthermore, the order was not suspended by the
application for leave to appeal and that they would proceed to enforce the Rule 43
order.
[32] Written reasons for the Rule 43 order were delivered on 17 June 2026. My
view was that the leave to appeal should be heard as soon as possible, however, all
the legal representatives were not available on the pro posed dates . As I was on
recess duty during the week 28 June to 3 July , the date of 2 July was set for the
hearing of the leave to appeal application but the legal representatives were advised
that as I was presiding in the urgent fast lane Court on the day, time limitations would
apply in respect of the leave to appeal application and the urgent matters would be
heard from 10h00.
The leave to appeal application on 2 July 2026
[33] At the hearing of the leave to appeal, the respondent was represented by Mr
Felix, of the Cape Bar, who was not involved in the initial Rule 43 application in
March 2026 . At the commencement of his argument, he referred to the written
reasons for the postponement refusal. It then became very clear that Mr Felix was
unaware that on 9 March 2026, I had delivered an ex tempore judgment in respect of
the postponement application and that the transcribed judgment was provided with
the written reasons to all the legal representatives in April 2026.
[34] Mr Felix’s instructing attorney -and I am unsure whether the attorney was Ms
Vermaak or Ms Haywood-was present in Court during the hearing. From my vantage
8 Catto Neethling Wiid letter, 10 June 2026
point in Court, she clearly provided no visible assistance to Mr Felix, on his
realisation that he was unaware of the judgment which I referred to.
[35] I indicated on record that the transcribed judgment was attached to the written
reasons which the registrar emailed to all the legal representatives on 29 April 2026.
It was clear t o Ms Buikman as well that Mr Felix was unaware that I had delivered a
judgment on the postponement application. To her her credit, she indicated that it
was no fault of Mr Felix that his attorney had not provided him with a copy of the
transcribed judgment when briefing him for the leave to appeal.
[36] At that stage, and aware that urgent applications were already waiting in the
wings to be heard at 10h00, Mr Felix requested an indulgence that the leave to
appeal application stands down for a short while in order that he be provided with a
copy of the transcribed judgment. Understandably, Ms Buikman and her attorney
were unimpressed with the turn of events and the further delay but as stated, counsel
appreciated her colleague’s predicament and embarrassment.
[37] Certainly, at that stage my view was that it was not Mr Felix’s fault that he was
not provided with the transcribed judgment. My contemporaneous notes of the day
indicate that the matter stood down at 10h00 for the urgent matters and I indicated
that the leave to appeal w ould proceed at 14h15 , but that the necessary time limits
remained in light of the Fast Lane urgent matters which in my view, took preference.
The parties’ submissions
[38] When the matter was recalled after the lunch adjournment at 14h15, Mr. Felix
indicated that he had familiarised himself with the ex tempore judgment on the
postponement application. He proceeded to address the Court on the leave to appeal
application and argued that the Court committed a misdirection when it refused the
postponement application. Mr Felix reiterated that the respondent wanted a
postponement in order to deal with and consult with a costs consultant and that
settlement of the Rule 43 was previously attempted.
[39] Mr Felix submitted further that there was nothing materially wrong in the Court
granting a short postponement of the Rule 43 application as well as costs against the
respondent, as opposed to refusing the postponement and thus causing severe
prejudice to him (the respondent). It was submitted on behalf of the respondent that
another Court would reasonably come to a different conclusion on the postponement
application.
[40] Insofar as the order for a costs contribution was concerned, the respondent’s
view was that the order of 10 March was extreme and drastic as it ordered the
payment of a large sum of money . Counsel submitted that the Court should at least
have allowed the respondent to put up a version regarding the applicant’s prayer (in
the Rule 43 application) for a costs contribution. The further submission was that
past legal costs do not form part of relief under Rule 43.
[41] Ms Buikman reminded the Court that the respondent was not entitled to argue
the leave to appeal in the first instance . In this regard , she referred the Court to
section 16(3) of the Act, the Constitutional Court judgment of S v S and Another9
(“S v S”) and the SCA’s recent 2026 judgment in BE v NT and Others 10 (“BE v
NT”). She submitted that considering the legal principles and legislation, a R ule 43
order was not appealable , and this included an order for a costs contribution as set
out in paragraph 4 of the Court’s order dated 10 March 2026.
[42] Insofar as the Court’s order refusing the respondent’s application for a
postponement of the Rule 43 hearing, Ms Buikman referred the Court to section
16(3) which specifically refers to orders or judgments in connection with Rule 43
9 2019 (6) SA 1 (CC)
10 [2026] ZASCA 25
orders. Her submission was that this reference includes a postponement related to
Rule 43 proceedings. Furthermore, she drew my attention to EB v CB, a Full Bench
appeal decision of the Free State Division, Bloemfontein 11 where at paragraph 11.3
of the judgment , that Court had no doubt that the words “any judgment or order in
connection with” 12 in section 16(3) include a reference to an order refusing a
postponement in a Rule 43 application.
[43] Ms Buikman submitted furthermore that on three occasions her attorney had
alerted Theron and Partners that in terms of section 16(3) of the Act, an application
for leave to appeal was not competent and that the application should be withdrawn .
She further emphasized that if the Court were to grant leave to appeal its orders ,
then it would mean that the Rule 43 order would be suspended for a year or more
until it is heard by the Full Court of this Division, and that if the appellate Court were
to find that the refusal of the postponement was wrong, then the Rule 43 application
would be referred back to a single Judge for hearing. She argued that this was not
the purpose of Rule 43 proceedings, if regard is had to section 16(3) and S v S, and
that the application for leave to appeal was an abuse of the Court’s process. She
contended that in all the circumstances, the leave to appeal application should have
been withdrawn.
[44] In reply, Mr. Felix was of the view that section 16 (3) does not specifically refer
to a postponement and that generally , refusals of postponements are appealable.
Insofar as the judgment of EB v CB was concerned, his submission was that the
decision of the Full Bench of the Free State Division is not binding on th is Court.
Furthermore, the aspects raised in the leave to appeal application related to past
legal costs was arguable.
Discussion and findings
11 Case number A22/2020, delivered by Daffue J and Nekosie AJ on 19 October 2020
12 Section 16(3) Superior Courts Act
[45] The respondent and his legal representatives hold the view that: (i) an order for
past legal costs in a Rule 43 application does not constitute a costs contribution
order in terms of Rule 43(1)(b) therefore it is capable of being appealed ; and, (ii) an
order refusing a postponement in Rule 43 proceedings is capable of being appealed
as section 16(3) of the Superior Courts Act does not specifically refer to a
postponement.
[46] Section 16 of the Act deals with appeals generally. Section 16(3) states as
follows:
(3) Notwithstanding any other law, no appeal lies from any judgment
or order in proceedings in connection with an application—
(a) by one spouse against the other for maintenance pendente lite;
(b) for contribution towards the costs of a pending matrimonial
action;
(c) for the interim custody of a child when a matrimonial action
between his or her parents is pending or is about to be
instituted; or
(d) by one parent against the other for interim access to a child
when a matrimonial action between the parents is pending or
about to be instituted.
[47] Section 16(3) must be read with Rule 43(1):
43 Interim relief in matrimonial matters
1. This rule shall apply whenever a spouse seeks relief from the court
in respect of one or more of the following matters:
(a) Maintenance pendente lite;
(b) A contribution towards the costs of a matrimonial action,
pending or about to be instituted;
(c) Interim care of any child;
(d) Interim contact with any child.
[48] Interim care and contact issues were not applicable in the Rule 43
application. It is evident from section 16(3) that no appeal lies in respect of an order
or judgment in proceedings in connection with an application for interim maintenance
between spouses and an application for a contribution towards the costs of a
pending divorce13. Section 16(3) clearly refers to relief falling under the categories in
Rule 43(1)(a) to (d).
[49] In the written reasons dated 17 June 2026 relating to the Ru le 43 order, I
referred to the judgment of Binns-Ward J in AG v LG 14, wherein he found that there
was no obstacle hampering an applicant in a Rule 43 application from seeking an
order for a cos ts contribution which includes past legal costs or costs already
incurred in relation to the main proceedi ngs. In this regard, Binns-Ward J had regard
to certain authorities, the principal of these being AF v MF 15, a judgment by Davis
J16.
[50] In a comprehensive analysis of previous authorities and sections 9 and 39(2)
of the Constitution of the Republic of South Africa, 1996, Davis J concluded in AF v
MF that a Court in a Rule 43 application for a costs contribution , was entitled to
consider legal costs already incurred including debts incurred to fund such legal
costs. Similarly, my written reasons related to the Rule 43 order also referred to RM v
AM17, where Rogers J allowed costs related to interlocutory applications and an
application to compel discovery as he considered these to fall within the ambit of
Rule 43(1)(b).
13 My emphasis
14 [2020] ZAWCHC 83 par [16]
15 2019(6) SA 422 (WCC) para [45]-[46]
16 At the time of the judgment, she was an acting Judge
17 [2019] ZAWCHC 86 par [24]
[51] From the above references, it is evident that decisions in this Division consider
past legal costs as being included in the category of a costs contribution falling under
Rule 43(1)(b). I share these views. The reference to the decisions of Rogers J and
Binns-Ward J (as above ) reinforced my view that an order granted in Rule 43
proceedings for past legal costs incurred is indeed included in an order for costs
contribution in terms of Rule 43(1)(b) . In my view the respondent’s submission that
an order for past legal costs, as granted at paragraph 4 of the 10 March 2026 order,
is not an order in terms of Rule 43(1)(b), cannot be sustained.
[52] Turning to the postponement issue, section 16(3) states that “no appeal lies
from any judgment or order in proceedings in connection with… ” an application for
interim maintenance, a contribution to costs of pending litigation, and interim
custody and access of a child in pending matrimonial actions18. I agree with Mr Felix
that section 16(3) of the Act does not specifically refer to an order refusing or relating
to a postponement application. However, as seen below, there is a critical flaw in th e
argument advanced by the respondent.
[53] As recently as 11 March 2026, Govindjee AJA, writing the unanimous
judgment for the SCA in BE v NT , expressed the SCA’s view on the issue of its
jurisdiction to entertain an appeal against a Rule 43 order where the SCA’s
intervention was sought on the basis of the all-inclusive mantle, the interests of
justice:
“[17] A central consideration in the interests of justice analysis is the express
statutory scheme. Section 16(3) of the Act 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 relief granted in paragraph 1.1 of the high
court’s order, which directed the payment of R40 000 per month as cash
court’s order, which directed the payment of R40 000 per month as cash
maintenance pendente lite, falls squarely within the ambit of this subsection.
18 Section 16(3)(a) – (d)
The order was made under rule 43 and is, by its nature and terms, interim and
operative only pending the final determination of the divorce proceedings. So
too are the other orders the appellant seeks to appeal. 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.”
[54] In paragraph [17] of BE, the SCA thus sounded a reminder to parties and legal
practitioners that there exists express statutory exclusion of the appealability of Rule
43 orders in the form of section 16(3) of the Act. While the detail and merits of BE are
not relevant to this matter, in my view, BE entrenched the earlier 2019 finding by the
Constitutional Court in S v S 19 which held, inter alia, that parties are prevented from
appealing Rule 43 orders in terms of section 16(3)20.
[55] In S v S , the Constitutional Court considered the remedy available to a
disgruntled litigant pursuant to the granting of a Rule 43 order against them. My
understanding of the judgment is that S v S considered the remedies available
pursuant to a Rule 43 order, to be the following:
i. The dissatisfied litigant may utilise Rule 43(6) and seek a variation of the
order where there is a change in material circumstances, albeit that the
sub-rule has its limitations.21
ii. Secondly, i n an exceptional case , where no changed circumstances
exist, but where “there is a need to remedy a patently unjust and
erroneous order…”, and where the interests of justice would trump strict
adherence to Rule 43(6), the High Court may exercise its inherent power
in terms of section 173 of the Constitution .22 I must stress that for this
possible course, there must be no changed circumstances relevant to
the litigant; their case would have to be exceptional, and, the interests of
19 2019 (6) SA 1 (CC)
20 Par [41]
21 S v S supra, par [49]
22 S v S supra, par [58]
justice would have to prevail for the High Court to exercises its inherent
power in terms of section 173 of the Constitution.
iii. Thirdly, S v S makes it abundantly clear that a Rule 43 order is of a
temporary nature and lasts until the issues in the divorce action are
finally determined at a trial . Given that Rule 43 orders often exist longer
than initially expected, the Constitutional Court expressed the view that
this is “the fault of the way divorces are handled , often by litigants and
practitioners, rather than a deficiency in the rule itself .”23 The dissatisfied
litigant against whom the Rule 43 order was granted, has a remedy in
that all the issues, including the interim Rule 43 order, would be
determined finally at a hopefully expeditious divorce hearing24.
[56] Mr Felix argued that in the ex tempore judgment I referred to Rule 43(6) but
that it was not available to the respondent as there were no changed circumstances.
The submission was made to convince this Court that it is arguable that section 16(3)
applied in such circumstances. To clarify, the ex tempore judgment on the
postponement states that Rule 43 has its own mechanism available to it in respect of
a variation application 25.
[57] With respect, the argument does not get out of the starting blocks . Despite the
definitive statement issued by the Constitutional Court in S v S that section 16(3) of
the Act serves as a legislative bar to an appeal of a Rule 43 order , the respondent
and his attorney have paid little or no attention to the findings in S v S and BE v NT.
[58] Section 16 (3) very clearly states that no app eal lies from any judgment or
order in proceedings in connection with a Ru le 43 application. There can simply be
no debate that the words “any judgment or order in proceedings in connection
with…” excludes a refusal of postponement order and a costs contribution related to
23 Par [54]
24 S v S supra par [55]
25 Transcribed judgment 9 March 2026, p6
past legal costs . At the risk of stating the obvious, a postponement application does
not occur in isolation or independently of the main proceedings /action/case, whether
the latter is criminal or civil in nature.
[59] In this matter, the respondent, because he wished to bring a cond onation
application, applied for a postponement of the Rule 43 application on 9 March 2026.
The postponement thus related to the main Rule 43 application and it follows that the
order which I granted at the conclusion of the ex tempore judgment, refusing the
postponement, was an order in the proceedings in connection with the applicant’s
Rule 43 application.
[60] Furthermore, in my view, the finding of the Full Bench of the Free State in EB
v CB is correct and I align myself with that Court’s interpretation of section 16(3) of
the Act Daffue J (with Nekosie AJ concurring) states as follows:
“I have emphasise d the words “any judgment or order in connection
with.” 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, inter alia, maintenance pendente lite
and/or a contribution towards costs in a pending matrimonial action.”26
[61] In view of the findings in the above -mentioned cases as read with section
16(3), I thus accept the submission of Ms Buikman that this Court’s order which
refused the respondent’s postponement application on 9 March 2026, is not capable
of being appealed. Section 16(3) constitutes a permanent bar on an attempt to
appeal such order.
[62] In respect of the order of 10 March 2026 which granted a costs contribution
including the payment for past legal costs, the respondent’s view that the order is
26 P6, par 11.3
appealable suffers a similar fate. The alleged unfairness of the order and steep
amount of the costs contribution are not issues for this judgment. I have already
explained above why an order for past legal costs in Rule 43 proceedings is a
competent order and forms part of a Rule 43(1)(b) order.
[63] To be clear, all the orders granted in the Ru le 43 order of 10 March 2026,
which thus include the order for past legal costs 27, are simply not capable of being
appealed because they are orders granted under or in terms of a Rule 43 application.
[64] Had there been any doubt about the wording and interpretation of section
16(3) of the Act 28 and there should not have been, then S v S and BE v NT , had
they been considered by Theron and Partners, should have put paid to such doubt.
In conclusion, and considering the above discussion and findings, the order refusing
the postponement application (9 March 2026) and the Rule 43 order including the
costs orders (10 March 2026) are not capable of being appealed . Accordingly, the
application for leave to appeal shall be dismissed.
The request for costs de bonis propriis against Theron and Partners
[65] I turn to the question of costs. Ms Buikman requested that an award of costs
on an attorney and client scale de bonis propriis should be granted against T heron
and Partners for several reasons.
[66] She submitted that on three occasions, her attorney had informed Theron and
Partners that the application for leave to appeal was incompetent because it was not
allowed in terms of section 16 (3) and the correspondence was simply ignored. The
27 Par 4 of the order
28 See Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) par [18],
which inter alia, makes it clear that a sensible meaning is to be preferred when interpreting a statutory
instrument
request to withdraw the leave to appeal was refused and Theron and Partners
insisted on proceeding with the leave to appeal application. She submitted further
that the application was an abuse of the Court process , led to a delay in the
implementation of the cost s contribution and that the actions of the respondent are
assisted by his attorney.
[67] In further support of a costs de bonis propriis order, Ms Buikman submitted
that Court time as well as the time of the administrative officials were taken up during
recess for an incompetent leave to appeal application and that the attorney of Theron
and Partners embarrassed their counsel who was unaware that a judgment was
delivered by failing to provide counsel with a copy of the judgment despite the fact
that it was sent to all involved in the matter. She emphasised that the Court should
be reminded that Theron and Partners were driving the application and insisted that
the leave to appeal proceeds in circumstances where there was a legal bar, resulting
in urgent matters , which were preferent, having to wait until the leave to appeal
hearing concluded.
[68] In reply Mr. Felix argued that an order of cost s de bonis propriis was not
appropriate because the aspect regarding section 16 (3) was not settled in relation to
the costs aspect, and that the Court was not bound by the Free State judgment, EB v
CB. He persisted with the view that the refusal of the postponement is /was
appealable and relies on MEC for Health, Gauteng v Lushaba 29 for the view that
Theron and Partners need not have responded to Catto Neethling Wiid’s
correspondence notifying them that an order of costs de bonis propriis would be
sought against them. The argument persisted that the 9 and 10 March orders
respectively were capable of be ing appealed and that the matter was therefore
arguable.
Discussion and findings on costs
29 2017(1) SA 106 (CC)
[69] Costs orders are within the discretion of the Court. Generally, punitive costs
orders are not the order of the day and various factors and conduct are considered in
the exercise of the Co urt’s discretion to grant an award of costs on an attorney and
client scale.
[70] It thus comes as no surprise that an order that a legal representative should
be held personally liable for the costs of proceedings is an exceptional order. In this
regard, I am mindful that “legal practitioners are expected to pursue their clients ’
rights and interests fearlessly and vigorously without undue regard for their personal
convenience”30.
[71] In Thunder Cats Investments 49 (Pty) Ltd and Others v Fenton 31, le
Grange J held that an order holding a party’s legal practitioner liable for the costs of
legal proceedings is unusual and far -reaching. The Court found that counsel’s
persistence and conduct in the matter put the opposition to unnecessary trouble and
expense and ordered that counsel and the first and second respondents pay the
applicant’s costs, jointly and severally, on an attorney and client scale.
[72] In Adendorffs Boerdery e v Shabalala and Others 32, there was non -
compliance with the rules of the SCA , a change of counsel, a nd lack of urgency by
the respondent’s attorney, which led that Court to find that such conduct was slack,
unreasonable, discourteous to the Court and opponent, and egregious33.
[73] I appreciate that errors of law, a failure to comply with the Rules or an
administrative oversight is a daily occurrence in litigation, and not ordinarily met with
30 Multi-links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd 2014 (3) SA 265 (GP) par
[34]
31 2009 (4) SA 138 (C) par [30]
32 [2017] ZASCA 37
33 Par [42]
a costs order de bonis propriis against a legal practitioner . The conduct of Theron
and Partners, having regard to the leave to appeal application, is summarised below:
i. The attorney attempted, irregularly so, to place an affidavit before the
Court which was not part of the Court record at the time, and after the
postponement application was already refused and the Rule 43
application was heard. While this action occurred prior to the leave to
appeal, it is indicative of the manner in which Theron and Partners
elected to conduct the Rule 43 matter.
ii. Two sets of written reasons were requested with an expressed intention
that they (the attorneys) were considering applying for leave to appeal
the postponement refusal , the Ru le 43 costs contribution and costs. At
that stage already, Theron and Partners should have been alive to the
law: section 16(3), S v S and BE v NT made it clear that the orders are
simply not appealable.
iii. Despite the registrar’s request s and further reminder that the Court file
should be delivered to her and that a date cannot be allocated for the
leave to appeal, it took Theron and Partners more than two months to
comply with the Practice Directives of this Division in relation to leave to
appeal applications. They insisted in email correspondence that a
hearing date be allocated for the leave to appeal, despite the non -
compliance with the Practice Directives.
iv. Furthermore, despite a legitimate request by Catto Neethling Wiid t hat
they withdraw the leave to appeal application and two more notifications
that section 16(3) is a bar to an appeal of Rule 43 order s, Theron and
Partners were undeterred. They refused to withdraw the leave to appeal
even under threat of a notice on 22 June 2026 that a costs de bonis
propriis order would be sought . Theron and Partners persisted on
proceeding with an ill -fated application for leave to appeal on behalf of
the respondent.
v. On the conduct and facts before me, I am left with no other conclusion
but that Theron and Partners were either ignorant of the provisions of
section 16(3) and the jurisprudence of the Constitutional Court and SCA
on the question of appealability of Rule 43 orders and orders granted in
such proceedings , due to a lack of research or they simply failed or
refused to appreciate its applicability to the orders granted in March
2026. The arguments presented during the hearing on 2 July 2026 , were
silent on the Constitutional Court and SCA judgments which Ms Buikman
referred to.
vi. As if all the above factors were not already cause for concern, and
having been in possession of the ex tempore judgment since 29 April
and also having been present in Court on 9 March when the judgment
was delivered, the responsible attorney (an d it is unclear who the
attorney is) of Theron and Partners simply failed to provide their new
counsel, Mr Felix, with a copy of the judgment , thus causing him
embarrassment in open Court in the presence of colleagues. This
negligent conduct by failing to provide their counsel with a proper brief
for the leave to appeal smacks of a lack of care and diligence.
vii. In addition to the above, Theron and Partners did not respond to the
notice that a costs order de bonis propriis order would be sought. While
Mr Felix argued that the notice in the 22 June letter that costs de bonis
propriis would be sought does not all for a response, Theron and
Partners are officers of the Court and as such should assist the Court
especially where an exceptional and punitive costs order was sought
against them. They failed or refused to do so, once again, displaying a
remarkable lack of care and concern. Instead, they continued to punt the
view that the refusal of the postponement and costs contribution orders
are appealable and that the matter is arguable.
[74] The conduct of Theron and Partners in driving a hopeless case, one which is
not sanctioned nor competent in law, has resulted in protracted proceedings, an
escalation of costs, and a waste of judicial and Court time. As in the matter which
came before Gamble J, Adams v Adams34, where the attorney was the driving force
behind a hopeless application, so too in this leave to appeal application. The
respondent is a 68 year old man, and relies on the legal advice given to him in relation
to the Ru le 43 application and the subsequent steps taken in the matter in that an
application for leave to appeal was competent in the circumstances.
[75] The legal advice that orders granted in Rule 43 proceedings and in connection
with a Rule 43 application are capable of being appealed , is simply bad legal advice.
Theron and Partners’ conduct in simply ignoring l egislation and the decisions of the
Constitutional Court and SCA, in order to push for an application for leave to appeal
the Rule 43 orders, displays reckless litigation, a lack of care, unreasonable conduct
toward the applicant, her legal representatives and the Court, and a failure to properly
research and consider the law. There is no reason, in my view, why the respondent, an
elderly man, should bear the costs of the leave to appeal application.
[76] As a result of the stance adopted by Theron and Partners in persisting with the
leave to appeal , an application, which should never have been brought in the first
place – the application has had to be accommodated in the recess period and on a
day when I was seized with urgent applications. The urgent application which was due
to be heard in the afternoon of 2 July, had to wait until I had heard the submissions in
this application which, as mentioned above, had to stand down bec ause Theron and
Partners had failed to properly brief Mr Felix. Their conduct , considered in light of all
the factors, described in this judgment, is egregious and strongly deprecated.
the factors, described in this judgment, is egregious and strongly deprecated.
[77] This is not a situation where an attorney had simply made a mistake or failed
to comply with the Rules of Court. Such conduct or omission would have been
34 WCC, case no. 23829/2012, delivered on 17 April 2014
understandable. In this instance, Theron and Partners had failed or refused to
consider why orders granted in Rule 43 proceedings are simply not appealable. This is
to avoid Courts having to hear applications in terms of section 18 of the Act to
suspend an order, or urgent appeals, leave to appeals to the SCA and more.35
[78] Rule 43 proceedings should be expeditious, yet by insisting that the orders are
appealable, when they are not, Theron and Partners have not only ignored established
legal principles but also simply disregarded the fact that the wife/patient is a vulnerable
and frail individual, with certain mental health challenges and is under curatorship, and
that it would be in the interests of justice that the divorce action is final ised as soon as
possible. Instead, I have been seized with an application which required more time,
research, consideration of a hopeless argument and having to write a judgment which
is the fourth judgment/reasons in a matter emanating from Rule 43 proceedings and
orders granted in March 2026.
[79] It would be appropriate to remind practitioners who intend to advise their
clients that orders granted in Rule 43 proceedings 36 are capable of being appealed ,
that such advice is bad in law . Furthermore, punting a useless case by insisting that
such orders, including a refusal of a postponement in a Rule 43 application are
appealable may attract a personal costs order against the legal practitioner who insists
on embarking on such a doomed course.
[80] Lastly, Ms Buikman alerted me to the fact that the costs regarding the refusal
of the postponement was reserved. That was indeed so on 9 March 2026, but I point
out that a costs order on an attorney and client scale was granted on 10 March 2026
in respect of the refusal/dismissal of the postponement application.37
Order
35 Sv S supra par [30]-[32]
36 Also Rule 58 orders in the Regional Courts
37 Par 1 of the order
[81] In the result, I grant the following order:
1. The application for leave to appeal is dismissed.
2. The Respondent’s legal representatives, Thero n & Partners /Vennote,
Stellenbosch, are ordered to pay the costs of the leave to appeal
application on an attorney an d client scale, de bonis propriis which shall
include the costs of senior counsel.
_____________________________
M PANGARKER
JUDGE OF THE HIGH COURT
Appearances
For Plaintiff (Applicant) Adv L Buikman SC
Instructed by: Catto Neethling Wiid Attorneys
CAPE TOWN
For Defendant (Respondent): Adv K Felix
Instructed by: Theron & Partners
STELLENBOSCH