- Judge M Pangarker dismissed the application for leave to appeal.
- Theron and Partners must personally pay the costs on an attorney-and-client scale.
- The court warned that lawyers who persist with hopeless Rule 43 appeals risk personal costs orders.
A Stellenbosch law firm has been ordered to pay legal costs from its own pockets after the High Court in Cape Town found it pursued a hopeless appeal despite repeated warnings that the law barred it.
Judge M Pangarker dismissed the husband’s application for leave to appeal and made the exceptional order against Theron and Partners on an attorney-and-client scale de bonis propriis. The order means the firm’s legal representatives, rather than their client, must pay the costs, including the costs of senior counsel.
The judgment arose from interim Rule 43 proceedings in a defended divorce between a husband and wife who have been married since 1979.
A vulnerable wife under curatorship
The wife is under curatorship after years of serious physical and neurological illness. The court heard that she was diagnosed with stage three breast cancer in 2000, before later developing osmotic demyelination syndrome, temporal lobe epilepsy and mild dysexecutive disorder.
She also suffers from chronic obstructive pulmonary disease and now lives in assisted care after a fall left her with a pelvic fracture. In July 2025, she survived a suicide attempt after jumping from the balcony of an eighth-floor building and later underwent psychiatric treatment.
Senior advocate Tracey Dicker was appointed as her curator ad litem before the Rule 43 application was launched.
The husband sought a last-minute postponement
The Rule 43 application came before Judge Pangarker on 9 March 2026. Although the husband had made a tender relating to interim maintenance, accommodation, medical expenses and other support, he failed to file an answering affidavit within the prescribed period and was automatically barred from opposing the application.
Just after 5pm on the Sunday before the hearing, his attorneys served a formal postponement application, asking for more time to prepare a condonation application and opposing papers.
Judge Pangarker refused the postponement after finding that the prejudice to the wife outweighed any prejudice to the husband.
The following day, the court granted interim maintenance, accommodation, medical expenses, ancillary relief and a costs contribution of R1 million payable in instalments, together with future legal costs.
Three warnings were ignored
Instead of accepting the interim order, Theron and Partners launched an application for leave to appeal.
The wife’s attorneys repeatedly warned the firm that Section 16 of the Superior Courts Act creates a complete legal bar against appeals arising from Rule 43 proceedings and urged them to withdraw the application. The warnings were ignored.
Judge Pangarker said the law was unequivocal, writing that “no appeal lies from any judgment or order in proceedings in connection with” a Rule 43 application.
The court also rejected the argument that the refusal of the postponement could be appealed separately, because it formed part of the Rule 43 proceedings.
Judge Pangarker held, “The order refusing the postponement was an order in the proceedings in connection with the Rule 43 application and was therefore not appealable.”
Judge Pangarker rebukes the attorneys
The judgment contains unusually strong criticism of Theron and Partners. Judge Pangarker found that the firm attempted to introduce a confirmatory affidavit after the postponement had already been refused and after the Rule 43 matter had been argued.
The court also found that the attorneys ignored practice directives, delayed delivering the court file for months, and persisted with an appeal despite clear Constitutional Court and Supreme Court of Appeal authority.
When new counsel was briefed for the appeal hearing, the attorneys failed to provide him with the transcript of the earlier judgment, causing embarrassment in open court when he discovered for the first time that an ex tempore judgment had already been delivered.
Judge Pangarker described the firm’s conduct as “reckless litigation” and said it showed “a lack of care, unreasonable conduct toward the applicant, her legal representatives and the court.”
The judge added that advising the husband that the Rule 43 orders could be appealed was simply “bad legal advice.”
A warning to the legal profession
Judge Pangarker said Rule 43 exists to provide speedy interim relief in matrimonial disputes and warned that allowing appeals would defeat that purpose by delaying maintenance and costs orders for months or even years.
The judge concluded that lawyers who insist on pursuing appeals barred by law may face personal costs orders in future and said the conduct of Theron and Partners was “egregious and strongly deprecated.”
The application for leave to appeal was dismissed, and Theron and Partners was ordered to personally pay the costs of the proceedings.
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