In June 2019 – in S v S and Another – the Constitutional Court confirmed the constitutionality of section 16(3) of the Superior Courts Act. This section states that spouses cannot appeal maintenance pending litigation, costs of pending matrimonial actions, interim custody of a child, or interim access to a child. The court also held that Rule 43 of the Uniform Rules of Court – regarding spousal relief for maintenance pending litigation, costs of matrimonial action, interim custody of child, and interim access to child – can be read expansively in light of section 16(3) of the Act. The Centre for Constitutional Rights’ Myra Sivaloganathan argues that through an emphasis on expeditious and inexpensive justice, Nicholls AJ looked beyond the immediate context of spousal relief in affluent households to potential impacts upon low-income women, vulnerable children, and the legal system as a whole. In an analysis on the centre’s website, Sivaloganathan notes in this case, the Constitutional Court granted leave to appeal due to the broad impact of Rule 43 applications on litigants in divorce proceedings. In a unanimous judgment, it held that the appeal process was expensive and would disproportionately impact financially-vulnerable spouses – which leads to delays in justice and suspension of orders, which infringe upon the best interests of the child. ‘Ultimately, an appeal process would unduly advantage the more financially-resourced spouse, and disadvantage vulnerable spouses and children.’ Regarding a litigant’s right to equality – and the fact that litigants in Rule 43 proceedings are differentiated from litigants with the right to appeal – the court held that distinction and differentiation are necessary to effective governance. Says Sivaloganathan: ‘Of issue is whether the distinction is rational or irrational. The Constitutional Court found that a rational connection exists between section 16(3) and governmental interests in preventing delays to justice and additional incurrence of costs.’ Regarding the constitutional right of access to court, not all litigants have the right to appeal. ‘The absence of a right to appeal interlocutory orders has long been held constitutional.’ Furthermore, litigants in Rule 43 applications can approach the court in terms of Rule 43(6). If a change in material circumstance exists, litigants can vary their court orders. As such, litigants maintain access to courts and their constitutional rights have not been denied. The court denied each of the father’s claims regarding the unconstitutionality of section 16(3) and dismissed the appeal with costs. It noted that the majority of incorrect maintenance orders can be rectified by Rule 43(6) applications. ‘Ultimately, High Courts should interpret Rule 43 expansively in light of section 16(3) of the Act.’