- The High Court in Johannesburg has overturned a R2.2 million legal costs contribution order made during divorce proceedings, ruling it was both unjust and legally flawed.
- The court found that exceptional circumstances justified intervention under Section 173 of the Constitution, as there was no right of appeal and no remedy available under Rule 43(6).
- Following the court’s ruling, a contempt application and related proceedings were also dismissed.
The High Court in Johannesburg has set aside a R2.2 million order requiring a husband to contribute to his wife’s legal costs in ongoing divorce proceedings, after concluding that the order was unjust and fundamentally erroneous.
The matter arose from drawn-out and complex litigation between spouses married out of community of property with the accrual system. The divorce, initiated in 2019, has involved multiple interim disputes, including applications relating to discovery, contempt of court, and interim financial arrangements before trial.
Judge BC Wanless was asked to decide four interconnected interlocutory applications. These included a Section 173 application by the husband seeking to overturn an earlier order by Judge M Noko, a contempt application brought by the wife, and an associated application to stay enforcement of the disputed order.
The disputed costs order
Judge Noko had ordered the husband to pay R2.2 million in three instalments, starting within 10 days of the ruling. The order was made in terms of Rule 43(6) of the Uniform Rules of Court, which permits courts to vary interim matrimonial orders if there is a material change in circumstances.
However, the husband argued that the order was fundamentally defective and that he lacked any ordinary legal remedy to challenge it.
He contended that the contribution order was “patently and manifestly unjust and/or erroneous,” and that Rule 43(6) could not assist him as there had been no material change in circumstances. In addition, the Superior Courts Act prohibits appeals against contribution orders in matrimonial matters.
With no conventional route available, his legal team turned to Section 173 of the Constitution, which gives the High Court inherent powers to regulate its own procedures and develop the common law where needed to serve the interests of justice.
When can Section 173 be used?
Judge Wanless confirmed that the Constitution allows courts to intervene in exceptional situations where following procedural rules to the letter would result in injustice.
Citing the Constitutional Court judgment in S v S, the judge noted that courts may act when there is “a need to remedy a patently unjust and erroneous order” and no other procedural remedy exists.
He explained that Section 173 is a limited safety valve, not a disguised appeal process: “The High Court may, in exceptional circumstances, exercise its inherent power under Section 173 of the Constitution to set aside a subrule 43(6) order that is patently unjust and erroneous,” the judgment reads.
Judge Wanless emphasised that this power exists to address gaps in procedural rules that could otherwise lead to unfair outcomes. “A court is entitled to fashion a remedy to enable it to do justice between the parties,” he wrote.
Findings: the earlier order was flawed
After reviewing the earlier ruling and the litigation history, the court found that the R2.2 million contribution order was indeed unjust and erroneous.
The judgment held that the earlier court had failed to consider properly the scope of the issues scheduled for trial, and had allowed costs unrelated to those issues to be factored into the contribution.
Judge Wanless pointed out that the order improperly included legal costs linked to disputes about a separate trust structure, which was not directly part of the divorce. He also found that the earlier ruling appeared to accept legal fees exceeding what could be reasonably recovered.
“These misunderstandings and reliance upon an incorrect premise are fatal flaws,” Judge Wanless said in response to arguments opposing the application.
Exceptional circumstances justified intervention
The judge concluded that several factors combined to create exceptional circumstances: the order was unjust and erroneous; the husband had no available legal remedy, as the order was not appealable and there was no change in circumstances to trigger Rule 43(6); and the amount involved was substantial.
Judge Wanless said this was precisely the kind of procedural gap Section 173 was intended to address: “In the present matter, there is no mechanism to deal with an unjust and erroneous Rule 43 order,” he wrote.
“In the premises, this Court is entitled to intervene, in terms of Section 173 of the Constitution, acting in the interests of justice.” The court therefore set aside the earlier order in its entirety.
Contempt application collapses
With the contribution order invalidated, the wife’s contempt application also fell away. She had sought to have her husband declared in contempt of court and jailed for failing to comply with the previous order, and asked that his attorneys be held personally liable for the legal costs of the contempt proceedings.
The court rejected these claims, with Judge Wanless finding that the husband’s lawyers acted properly by advising him to challenge the order and oppose the contempt application. “If this included advice not to comply with the Noko order, the husband’s attorneys cannot be criticised, therefore,” he said.
Court warns against abuse of Section 173
While granting relief in this case, the court stressed that Section 173 should not become a routine tool for dissatisfied litigants seeking to challenge interim matrimonial orders.
Judge Wanless emphasised that litigants must show they have no other remedy and must prove that the order in question is both unjust and erroneous.
“Section 173 of the Constitution is not to be construed as a manner by which a litigant may circumvent the fact that there is no right of appeal,” he cautioned.
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