By Sanette Viljoen
Recently a case was heard where the attorneys who were acting on behalf of a former high-profile politician were unsuccessful for the third time when they tried to have an order for maintenance amended. This was an order in terms of which the politician had to pay R95 000.00 to his former spouse for interim maintenance.
His attorneys applied for leave to appeal against this maintenance order and it was rejected with penalty costs to the attorneys. The court found clearly that the politician’s attorneys had to be penalised as this application had no chance of success and should never have been brought before the court.
The initial maintenance order was issued by virtue of Rule 43 of the High Court and deals with interim maintenance. The order was issued after the court had reviewed the retired politician’s bank statements.
The politician now wanted this maintenance order of R95 000.00 to be amended to a lesser amount. He alleged that he was only receiving a pension of R145 000.00 per month and that, among others, he had to pay a bond of R66 000.00 out of this income, as well as support other family members. He therefore alleged that he had only R20 00.00 available to pay to his wife as maintenance, instead of the order of R95 000.00.
What is important to note is that appeals may not be brought against Rule 43 for interim maintenance. It can only be amended where there is an actual change in the financial position of the person who needs to pay maintenance and the burden of proof will then be on the person making the allegation.
Regardless of these very clear rules that are known well-known, the lawyers applied for the amendment to the maintenance order. The judge refused to hear the application and stated that the application definitely was not urgent. Furthermore, it was evident that this was an application to appeal against the Rule 43 decision and that is not allowed.
The attorneys who acted on behalf of the politician applied again for leave to appeal to a full bench of judges in the Supreme Court of Appeal. According to this court, Rule 43 was instituted precisely to provide quick and inexpensive solutions, primarily to the benefit of the spouse and children who have urgent interim needs. Rule 43 therefore is an inexpensive solution to assist them with maintenance pending the possibly long, drawn out divorce case. The fact that appeal may not be brought against this Rule is exactly to prevent delays and unnecessary costs and to then allow appeal would defeat the entire purpose of this rule.