Concourt orders father to pay maintenance
Father must pay R40 000 a month
THE Constitutional Court has made an order prescribing the payment of interim maintenance, child care, and contact orders.
Ruling on an application by a father who challenged that the non-appealability of interim orders was unconstitutional, the apex court held, in a unanimous judgment, that the non-appealability was indeed constitutional, as it meant children’s rights were not infringed.
The applicant, whose name is being withheld to protect the identities of three minors involved, had been married to the children’s mother out of community of property before they divorced in September 2016.
The mother had launched an application in the high court in Pretoria in March 2017, seeking to confirm interim maintenance arrangements and the primary care and custody of the children until the finalisation of the divorce proceedings.
The father proposed paying R12000 a month as an interim payment, but the high court found otherwise, ordering he pay R40000 a month.
The father then requested reasons for the decision, charging the amount was financially unsustainable.
He launched an application for leave to appeal, which the high court dismissed, finding rule 43 of the Uniform Rules by the Department of Justice, due to section 16(3), were not appealable.
His further applications for leave to appeal to the Supreme Court of Appeal and its presidents were also dismissed.
Before the Constitutional Court the father contended that section 16(3) of the act was unconstitutional as it created a “blanket rule”.
“In a unanimous judgment penned by Nicholls AJ, the Constitutional Court held that in terms of section 167(3)(b)(ii) of the Constitution, the matter raised an issue of general public importance and it was in the best interests of justice to grant leave to appeal.
“On the constitutional challenge, the court held that an appeal process was expensive and would create delays in finalising matters, which infringes the best interests of the child.
High courts can also hear matters on an urgent basis Centre for Child Law Friend of the Court
“The court concluded that the real issue in this matter was the interpretation and operation of rule 43, rather than section 16(3) of the act.
“However, the constitutionality of rule 43 had not been an issue before the court.
“As such, the court found that the unconstitutionality of section 16(3) of the act had not been established, but provided guidance to high courts.
“The court granted leave to appeal and dismissed the appeal with costs,” the court’s liaison office said.
The Centre for Child Law entered the matter as amicus curiae, or friends of the court, to argue that it was unconstitutional that a decision made pendente lite (pending the finalisation of the main case), is not appealable, when that same decision adversely affects the rights of the children involved.
“There may be exceptional cases where there is a need to remedy a patently unjust and erroneous order and no changed circumstances exist. In those instances, where strict adherence to the rules clashes with the interests of justice, a court may exercise its inherent power in terms of section 173 of the Constitution to regulate its own process in the interests of justice.
“High courts can also hear cases on an urgent basis if an allegation is made that an interim order is contrary to or threatens the best interests of a child.
“The centre welcomes the guidance provided by of the Constitutional Court. Especially where the court says that should an interim order be contrary to the best interests of a child, this can be rectified immediately,” the centre said.