In divorce proceedings, Rule 43 of the Uniform Rules of Court provides a mechanism for interim relief relating to maintenance, contribution to costs, and custody or access to minor children. Because of the need for expedited relief, Rule 43 proceedings are designed to be quick and inexpensive. As a result, once a Rule 43 order is granted, courts are generally reluctant to revisit it unless there are compelling reasons to do so.
However, parties sometimes find themselves in changed circumstances – or discover alleged errors – in the months following a Rule 43 order. The question then arises: Under what circumstances can that order be varied or rescinded? Practitioners often look to Rule 43(6) on one hand, and Rule 42(1) or the common law on the other.
When Can a Rule 43 Interim Order Be Varied?
Under Rule 43(6), a party may apply to vary a Rule 43 order "in the event of a material change taking place in the circumstances of either party or a child," or in the event that newly discovered facts (which were not available at the time of the original application) come to light. South African courts have consistently underscored that mere dissatisfaction with the original order – or presenting evidence that was always available but not used – does not justify variation.
In S v S [2019] ZACC 22, the Constitutional Court reiterated that Rule 43 orders are inherently interim and non-appealable, precisely to ensure swift resolution of maintenance and related disputes pending a final divorce. While Rule 43(6) does permit variation, the applicant must show a material change in financial or other relevant circumstances, such as job loss or significant shifts in income or expenses.
In Smit v Smit 1980 (3) SA 1010 (O) and Greenspan v Greenspan 2000 (2) SA 283 (C), the courts similarly emphasised that a party seeking to vary an existing Rule 43 order must demonstrate new facts that could not reasonably have been presented in the original application or must show how the parties' financial positions have substantially changed.
A Rule 43(6) variation is available only for genuinely changed circumstances (e.g., job loss, illness, or other events) arising after the initial order, or newly discovered evidence that was not previously accessible.
Does Rule 42 Allow for the Rescission or Variation of a Rule 43 Order?
Rule 42(1) allows a court to rescind or vary a judgment or order if:
- The order was erroneously sought or granted in the absence of a party (Rule 42(1)(a)), or
- There is an ambiguity, patent error, or omission in the order (Rule 42(1)(b)), or
- The judgment was granted as a result of a mistake common to both parties (Rule 42(1)(c)).
Although the language of Rule 42 appears broad, courts have consistently held that Rule 42 is not a backdoor route to re-argue or "appeal" an interim maintenance order. The error or omission must be evident on the face of the order – attributable to the court itself rather than a party's failure to present proper evidence at the time.
In Etheridge v Etheridge (Case No. 2023-131897, High Court Gauteng Division, 28 February 2025), the applicant sought to vary a Rule 43 order via Rule 42(1)(b), alleging the court had made a "patent error" in failing to consider certain financial disclosures. The court dismissed this argument, finding that:
i) The applicant was effectively introducing new financial information that had been available but not properly presented during the original Rule 43 hearing.
ii) Rule 42(1)(b) cannot serve as an appeal mechanism to cure a party's earlier omission or oversight.
iii) Because the alleged error was not attributable to the court (i.e., it was not a clerical or arithmetic mistake the judge made in the wording of the order), Rule 42(1)(b) did not apply.
Similarly, Seattle v Protea Assurance Co Ltd 1984 (2) SA 537 (C) underscores that a "patent error" must be one clearly traceable to the court's own oversight or a misstatement in its order, rather than a party's belated discovery of evidence.
Rule 42(1)(b) does not allow a litigant to revisit a Rule 43 decision simply because they wish to introduce additional financial or factual material that was always in their possession. It is limited to genuinely manifest, court-made errors in the final order itself.
Key Differences Between Rule 43(6) and Rule 42
Nature of the Variation:
- Rule 43(6): Permits variation of an interim maintenance order based on new facts or material changes in circumstances after the Rule 43 order.
- Rule 42(1)(b): Aimed at rescinding or varying judgments where there is a patent error or omission in the court's order, or the order was granted erroneously in the absence of a party.
Scope of Inquiry:
- Rule 43(6): Focuses on whether circumstances (financial or personal) have altered sufficiently to justify an amendment.
- Rule 42(1)(b): Only corrects or clarifies an existing court error evident on the face of the order. It does not permit new evidence or a re-run of the initial hearing.
Burden of Proof:
- Rule 43(6): Applicant must show bona fide new circumstances or facts, not previously available.
- Rule 42(1)(b): Applicant must show a clear, patent mistake by the judge in the order itself (e.g., a miscalculation obviously contrary to what the judge intended).
South African courts have interpreted Rule 42 narrowly when dealing with Rule 43 orders. They are wary of turning interim maintenance orders – intended to be swift and final for the interim period – into protracted litigation. As seen in Etheridge v Etheridge, if the "error" is really a party's newfound disagreement with the court's conclusion or newly commissioned forensic reports, then the correct approach is via Rule 43(6) (if, and only if, those reports truly reveal changed or newly discovered facts). Otherwise, the principle of finality in interim orders stands.
Best Legal Approach to Amending a Rule 43 Order Without Unnecessary Delays
1. Determine First Whether Circumstances Have Genuinely Changed
If a party's financial circumstances (employment status, salary, living expenses) or other material facts have shifted since the original hearing, bring a Rule 43(6) application on the same papers, supplemented by new affidavits showing the changes.
2. Avoid Re-Arguing the Same Points
Courts typically dismiss attempts to re-litigate the same issues aired in the initial Rule 43. If the new facts were available from the outset, the court is unlikely to entertain a variation.
3. Check Carefully for True Court Errors
If the original order contains a clear typographical or mathematical error (e.g., the figure in the order differs from what the court orally pronounced), Rule 42(1)(b) might apply.
If in doubt, read the order closely and compare the wording to the transcript or judge's reasons. An application under Rule 42(1)(b) should precisely identify the error that is said to be "patent" or "clerical."
4. Present a Concise, Fact-Specific Affidavit
Rule 43 is designed to be quick. Keep supplementary affidavits short, relevant, and clearly focused on new developments—whether under Rule 43(6) or, in exceptional cases, Rule 42(1)(b).
5. File Timeously
If an urgent change arises (e.g., job loss), file promptly to avoid falling into arrears or contempt. Courts may be more sympathetic to a well-founded urgent application if it is truly time-sensitive.
Varying a Rule 43 interim order is narrowly circumscribed. The primary mechanism is Rule 43(6), which requires the applicant to prove a genuine, material change in circumstances or newly discovered facts that were not available during the initial hearing. Rule 42(1)(b) is rarely successful for reconfiguring a maintenance order because it requires a demonstrable, patent error by the court – not simply a failure of a litigant to present complete evidence the first time around.
In Etheridge v Etheridge, for example, the High Court in Johannesburg clearly distinguished between permissible grounds for variation under Rule 43(6) and the limited scope of Rule 42(1)(b). The judgment underscores that dissatisfaction with an interim order or newly obtained financial reports – if such information was previously available – does not constitute a "patent error" or "changed circumstances." Therefore, any party considering an application to amend a Rule 43 order should carefully assess whether their complaint truly involves new facts or a genuine court-made slip. If not, the principle of finality will likely prevail.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
