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[2018] ZAWCHC 61
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Y.O v Z.W (21412/17) [2018] ZAWCHC 61 (25 May 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
Case No: 21412/17
In
the matter between:
Y.
O.
APPLICANT
and
Z.
W.
RESPONDENT
JUDGMENT:
25 MAY 2018
HENNEY
J
Introduction:
[1]
The
applicant and the respondent, on 23 April 2009, married to each other
according to Muslim rites in accordance with Islamic law.
The
applicant at that stage was 19 years old and the respondent was 37
years old. Two children were born from the marriage. The
marriage
between the applicant and the respondent has broken down
irretrievably. On 30 January 2016, the respondent terminated
their
marriage in terms of Islamic law by the issue of a
Talaq
.
This was confirmed by the Muslim Judicial Council, by means of a
divorce certificate issued on 22 August 2017.
[2]
On 1
November 2017, the applicant issued a summons out of this court under
case number 19955/17 in which she inter alia seeks declaratory
relief
in the following terms: that until legislation providing for the
recognition of Muslim marriages and regulating the consequences
of
such recognition is enacted and comes into force, the de facto
monogamous marriage concluded between the parties in terms of
Muslim
rites shall be regarded as valid for the following purposes:
a)
The
Matrimonial Property Act 88 of 1984
, and such a marriage shall be
regarded as being one in community of property;
b)
the common
law duty of support with spouses owe of each other upon divorce; and
c)
sections
7(7)
and
7
(8) of the
Divorce Act 70 of 1979
, except that the,
issuance of a Talaq by the defendant shall be considered a decree of
divorce for the purposes of the application
of those sections.
[3]
Pending
the determination of this action, the applicant has instituted an
application for relief in terms of Rule 43 of the Uniform
Rules of
Court. The relief the applicant is seeking pending the outcome of the
above-mentioned dispute was broadly speaking for
an order regulating
the care, contact and custody arrangements of the minor children; an
order for maintenance in respect of herself
and the minor children
and an order directing the respondent to contribute an amount of R90
000 towards the applicant’s costs
in the pending matrimonial
action, which amount shall be paid within 10 calendar days of the
granting of the order.
[4]
It
would be appropriate to once again have regard to the provisions of
rule 43 which states that:
“
(
1
)
This rule shall apply whenever a spouse seeks relief from the court
in respect of one or more of the following matters:
(a) Maintenance
pendente lite;
(b) a
contribution towards the costs of a pending matrimonial action;
(c) interim
custody of any child;
(d) interim
access to any child ”.
[5]
At
issue in these proceedings is whether the applicant in the
circumstances of this case can rely on the provisions of rule 43,
especially due to the fact that the parties in terms of Islamic law
on the pronouncement of the talaq and the subsequent certificate
issued by the Muslim Judicial Council are considered to be divorced.
It was agreed that the court as the upper guardian of all
children in
this division has inherent jurisdiction to deal with any matter
involving children, especially with regards to the
custody and access
of any child. Similarly, that in terms of the Children’s Act 38
of 2005, this court has powers to deal
with such matters, without
having to resort to the provisions of rule 43. It was therefore
agreed that the court without the application
of rule 43 can also
deal with any maintenance issue, in respect of the applicant as well
as the minor children.
[6]
As a
result of this, the parties agreed to an order given by this court on
15 May 2018, that the respondent pay maintenance in respect
of the
applicant and the minor children. This order also regulates the
interim access and custody arrangements of the children,
pending the
finalisation of an investigation by the family advocate.
[7]
After
the matter has been largely settled, pertaining to the question of
maintenance and interim access and custody of the children,
by not
having resort of the provisions of rule 43, the only issue for
adjudication would be whether it would be competent in these
proceedings in terms of the provisions of rule 43, for this court to
make an order that the respondent make a contribution towards
the
applicant’s costs, pending the matrimonial action.
Given
the findings and conclusions which I will come to later in this
judgment, it would have been permissible for this court also
to have
made an order relating to the maintenance in respect of the applicant
and the minor children, as well as an order for the
interim access
and custody arrangements of the children, in terms of the provisions
of rule 43.
[8]
It
is well established that, the current law as it stands, presently
does not recognise the rights of parties to marriages contracted
in
terms of Islamic law. The applicant submits that, notwithstanding the
fact that in terms of Islamic law, a marriage had been
terminated by
means of a talaq, there still exists a pending patrimonial dispute
between her and the respondent on the basis of
the summons she issued
under case 19955/17 and the relief that she seeking as referred to
above.
[9]
It is common cause that the respondent raised an exception to the
applicant’s particulars of claim and to overcome this
exception, the applicant will have to amend her particulars of claim
to properly plead the constitutional challenge to the non-recognition
of Muslim marriages. The applicant will also have to join the
President of the Republic of South Africa, the Cabinet and relevant
ministers to the pending proceedings. It is also well-known fact that
such a constitutional challenge to the non-recognition of
Muslim
marriages is the subject of a pending action in this division before
Desai J,
Boqwana J
and
Salie-
Hlophe J
in the
matter
Women’s Legal Centre v President of the RSA, case number
22841/2014
;
Faro v
Bingham case number 4466/2013; Esau v Esau case number 13877/2013
.
[10]
According to the applicant, it has been made clear to her that the
respondent intends to pursue the litigation and that she
will be
obliged to effect the amendments to join the above parties to the
action. It is for this reason that she requests a contribution
towards her legal costs. She cannot afford to do so and to litigate,
on the same scale as the respondent. In this regard, Ms Venter
who
appeared for the applicant referred this court to the case of
AM
v RM
2010 (2) SA 223
ECP
as well as the decision of
TM
v ZJ 2016 (1) 71 (KZD)
.
The court will refer to these cases
later
on in this judgment.
[11]
The
respondent in opposing the application submitted that on the
applicant’s own version she failed to prove that there is
a
valid subsisting marriage. In this regard, Mr De Villiers –
Jansen relied on the case of
Zaphiriou
v Zaphiriou 1967(1)
342 (W) at 344 para D-T where
Trollip
J
held
… “
One
of these issues might well be whether they contracted a
valid marriage, or, if they had, whether it still
subsists, and there
seems in principle to be no reason why, if the applicant shows
on the papers with the requisite
degree of proof that there was
a valid marriage and that it still subsists, he or she should not be
afforded the appropriate
interim relief notwithstanding the
fact that the marriage or its subsistence is being disputed.”
[12]
Furthermore,
he argues the applicant, proceeds from the premises that there is no
legislation which recognises Muslim marriages,
but has failed to join
the relevant Minister and compel the Minister to pass the necessary
legislation. In this regard, he argued
that the cases of
TM
v ZJ
and
AM v
RM
(supra) on which the applicant relies is distinguishable from the
present one, in that the constitutional validity of the
non-recognition
of Muslim marriages is specifically pleaded.
[13]
He
also argued that inasmuch as the
Matrimonial Property Act and
the
Divorce Act, do
not recognise Muslim marriages, the applicant does
not challenge the constitutionality of any of the provisions of
either of these
acts, nor does she contend that either of these laws
can be construed in a manner which recognises a former Muslim
marriage to
the respondent.
[14]
According
to the respondent, if the applicant recognises that the talaq issued
by him should be considered a decree of divorce,
there can be no
subsisting marriage
in
the circumstances.
Evaluation:
[15]
I do
not agree with any of the submissions of the respondent for the
following reasons: firstly, it is irrelevant for a dispute
to be
regarded as a pending matrimonial dispute, as required in terms of
rule 43
, for an applicant in
rule 43
proceedings to show that he or
she would be successful in the main action against the respondent. It
is and remains a matrimonial
dispute. It is a well-known fact that
even after a bitterly contested
rule 43
application, parties more
often than not, settle the main dispute. The mere fact that an
exception was raised to the applicant’s
particulars of claim in
the main action does not disqualify it from being regarded as a
matrimonial dispute. The exception that
was raised is merely
interlocutory in nature and may not be upheld by the court that will
deal with such an application.
[16]
Secondly,
it has always been recognised in our law, that the mere fact that the
validity of a marriage is disputed, that, that cannot
be a bar for a
party to rely on the provisions
rule 43.
In
Zaphiriou
v Zaphiriou
(supra),
the court after having regard to the common-law at page 345 para E-H
held that “
There
is, therefore, good authority that in the common law, even though the
validity of the marriage was being disputed, nevertheless,
the court
had jurisdiction in preliminary application proceedings to
maintenance and a contribution towards costs pending an action
to
determine the fundamental dispute. And I have no doubt that that
applies equally, if not a fortiori where, although the validity
of
the marriage is admitted, its continued subsistence is disputed, as
in the present case.
Rule 43
was merely designed to provide a
streamlined and inexpensive procedure for procuring the same
interim relief in matrimonial
actions as was previously unavailable,
under the common law in regard to maintenance and costs, and I
think, therefore, that
Rule 43
must be construed accordingly; in
other words, that “spouse” in sub-rule (1) must be
interpreted as including not only
a person admitted to be a spouse
but also one who alleges that he or she is a spouse, and that
allegation is denied. In other words,
the rule also applies where the
validity of the marriage or its subsistence is disputed.”
[17]
Finally,
this court is in respectful agreement with
Revelas
J
in
AM
v RM
,
where she held on page 227 at para [10] …. “
The
fact of a pending divorce action brings the situation within the
ambit of ‘matrimonial matters ‘and a ’matrimonial
action ‘as envisaged in
rule 43.
The fact that a Muslim divorce
has been concluded is no obstacle for the divorce trial, and the
constitutional challenge raised
therein, to proceed. Once there is a
constitutional challenge in the context of relief sought under the
Divorce Act, not only
the status and effect of the nikkah, but also
that the status and effect of the talaq, will be under scrutiny. The
constitutional
challenge pending in the trial court, clearly
encompasses a challenge to the legal effect of a talaq. By virtue of
the main action
for divorce, it’s effect is suspended for all
practical purposes. Therefore, when a court has to decide whether or
not to
grant maintenance pending the outcome of the divorce action,
where there is a constitutional challenge to the status of the
marriage,
it does not matter whether or not the parties were divorced
in accordance with Muslim rites or not.”
[18]
The court in the matter of
TM
v ZJ
(supra) in dealing with a similar case where a muslim woman had been
divorced in terms of muslim law and made a claim for a contribution
to her legal costs said the following at p77 para 17: “
Therefore,
I find it to be unnecessary for the applicant in a
rule 43
application to prove prima facie the validity of the marriage.
In my view the entitlement to maintenance pendente lite arises
from a
general duty of a husband to support his wife and children. If
the enforcement of these rights entails pursuing them
in court, then
the same considerations that applied in Zaphiriou should apply to
whether the court can make an order for an interim
contribution
towards costs
.”
I
also respectfully agree with the sentiments, and endorse what the
learned judges in these two matters said and find that it is
no
different to what the Applicant is requesting in this case.
[19]
It is well established that muslim marriages had been recognised for
purposes of a muslim widow’s claim for loss of support
following the death of her husband, where such duty arose from a
solemn marriage in accordance with the tenets of a recognised
and
accepted faith, such as Islam. See
Amod v Multilateral Motor
Vehicle Accidents Fund
(Commission of Gender Equality
Intervening)
1999 (4) SA 1319
(SCA)
[1999] 4 All SA 421.
[20]
In my view, if there was a
de
facto
marriage where the parties and the outside would regard it as such,
the validity of which is still to be determined in the main
action,
the provisions of
rule 43
in my view, finds application and can be
relied upon by a party to such
de
facto
marriage.
[21]
Coming back to this matter,
where
the applicant intends and is in the process of launching a
constitutional challenge to the status of the marriage as well
as the
legal effect of the talaq, she is therefore perfectly entitled to
rely on the provisions of
rule 43
in as far as it seeks an order that
the respondent make a contribution to her costs.
[22]
Therefore,
in addition to the order that this court made on 16 May 2018, I make
the following order:
22.1
That the respondent is directed to contribute an amount of R90 000
towards the applicant’s costs in
the pending matrimonial
action, which amount shall be paid within 10 calendar days of the
granting of this order.
22.2
That the
respondent is to pay the cost of this application.
___________________
HENNEY, J
Judge
of the High Court