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[2018] ZAGPJHC 724
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SJ v SE (2016/30298) [2018] ZAGPJHC 724 (24 April 2018)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2016/30298
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
24
APRIL 2018
In
the matter between:
SJ
Applicant
and
SE
Respondent
EAF
Amicus Curiae
J
U D G M E N T
MODIBA,
J
:
[1]
The respondent (“SE”)
seeks an order declaring that Rule 43 of the Uniform
Rules of Court
does not apply to parties married in terms of Islamic Law and in
circumstances where a
Talaq
[1]
has
been issued.
[2]
SE raised this issue as a point
in limine
when an application
in terms of Rule 43, brought by the applicant (“SJ”),
served before Carelse J in February 2017.
Carelse J postponed the
application
sine die,
to allow the
amicus curiae
(“
the
amicus
”), whom she had admitted by agreement between the
parties, to file a notice in terms of Uniform Rule 16A and a
supplementary
affidavit, and to allow the parties to file further
affidavits.
[3]
The facts between the parties are largely common cause. They were
married to each other
under Islamic Law on 6 April 2002. Two children
were born from the marriage in 2004 and 2006. On 27 April 2014, SE
entered into
a polygamous marriage with another woman (“CB”).
The latter marriage was also concluded under Islamic Law. On 5
January
2015, a child was born between SE and CB. SJ and CB
maintained separate matrimonial homes. SE resided interchangeably
between these
homes. On 24 June 2016, SJ vacated her matrimonial
home. The circumstances under which she did so are in dispute
.
However, that dispute is of no consequence to the issue under
consideration.
[4]
SJ alleges that since she left her matrimonial home in June 2016, she
has been without
maintenance. She was hitherto partially dependant on
SE. She only holds a matric and has no formal qualifications. She
worked as
a nursery school teacher at a school across the street from
her matrimonial home, half a day for five days per week, earning R5,
000 per month. When she left her matrimonial home, SE ordered her to
leave her car behind. She has not worked since because she
cannot get
to work. These are the circumstances that impelled her to launch the
Rule 43 application.
[5]
On 1 September 2016, SJ initiated the Rule 43 application. SE
subsequently filed opposing
papers. On 16 November 2016, SJ initiated
divorce proceedings against SE in terms of the
Divorce Act 70 of
1979
. On 22 February 2017 just under a week before the
Rule 43
application was heard, SE issued a
Talaq
against SJ.
PRELIMINARY POINTS
[6]
At the commencement of the present hearing, counsel for SJ requested
that two preliminary
points raised by SJ be dealt with upfront. These
are:
6.1 the
referral of the point
in limine
to the full court of this
division;
6.2
the stay of the current proceedings pending the handing
down of the judgment in a class action that was heard by
the full
court in the Western Cape division of the High Court in August 2017
where the applicants seek an order directing the Parliament
of the
Republic of South Africa (“Parliament”) to expedite the
processing of the Islamic Marriages Bill
[2]
.
[7]
Approximately a week before I heard argument, SJ’s attorneys of
record addressed
a letter to the Judge President of this division,
Judge President Mlambo, with the attorneys of record for SE and the
amicus
on copy, requesting him to refer this matter for
determination before the full court. SE’s attorneys of record
addressed
a reply to Judge President Mlambo opposing the request and
setting forth reasons for their opposition. In a letter dated 14
March
2018, Judge President Mlambo informed the parties that it was
too late to consider SJ’s request.
[8]
During preliminary discussions
with counsel in chambers prior to the present hearing, counsel
for SJ
informed me that she is persisting with the request to have the
matter heard by the full court in due course, contending
that Judge
President Mlambo has not declined SJ’s request. She enjoined me
to exercise a discretion which I singularly enjoy
as the presiding
judge, by referring the matter to the full court. This prompted me to
consult with Judge President Mlambo prior
to hearing argument in
court, as I ought to in terms of section 14 of the Superior Courts
Act.
[3]
[9]
The reasons advanced for SJ for this request are as follows:
9.1 the
issue for determination in these proceedings is being considered for
the first time in this division;
9.2 the
issue is of great importance to the Islamic community;
9.3 several
decisions on the same issue have been handed down by single judges in
other divisions of the High Court;
9.4 given
the judgment reserved by the full court in the Western Cape division,
it will be undesirable for this court
to hand down a decision that
conflicts with that decision when it is ultimately handed down;
9.5 having
the issue determined by the full court in this division will yield
greater legal certainty.
[10] A
vigorous opposition to the request was persisted with on behalf of SE
citing:
10.1 the delay in
bringing the request;
10.2 prejudice to
SE should the request be granted;
10.3 that the
decision of this court by a single judge will not disturb the
doctrine of
stare decisis;
and
10.4 that the link
between the Western Cape matter and this application has not been
established.
[11]
The proposition that as the presiding judge I have
the discretion to refer the matter to the full court
is incorrect.
This was the position in terms the Supreme Court Act,
[4]
the precursor to the current Superior Courts Act. In terms of section
13 (1) (b) of the Supreme Court Act, a single judge presiding
over a
matter could at any time discontinue the hearing of a matter and
refer it for hearing before a full court of the relevant
division.
This has since changed by the unambiguous wording of section 14 of
the Superior Courts Act.
[5]
It
follows that judgments delivered prior to the enactment of the
Superior Courts Act as well as the relevant commentary no longer
hold
authority on this subject.
[6]
[12]
Section 14 envisages two scenarios in which the full court is
constituted. The Judge President,
in his absence the Deputy Judge
President or in their absence the most senior judge in the division
may singularly constitute the
full court or the presiding judge in a
matter may do so. In the latter case, the presiding judge makes the
decision
in
consultation with
the
Judge President, in his absence the Deputy Judge President or in
their absence the most senior judge in the division. The words
‘in
consultation with’ require a decision referring a matter to the
full court to be taken by the presiding judge with
the concurrence of
the aforesaid functionaries in the stated ranking order.
[7]
(Emphasis added)
[13]
The formulation in section 14 is one that promotes effective justice
administration. While a
presiding judge may believe that a matter
ought to be heard by the full court, it is not desirable for him or
her to impose such
a decision on the Judge President because it is
beyond the powers of the presiding judge to designate judges to
preside in the
full court. This power lies with the Judge President
who normally designates judges by publishing a duty roster before the
commencement
of a new term. It would not assist the presiding judge
to hold a discretion to refer a matter to the full court when he or
she
lacks the powers to constitute one.
[14]
I am therefore required to make such a decision in concurrence with
any of the aforesaid functionaries.
[15]
Unlike its predecessor, the Superior Courts Act is silent on who
initiates the request for the
referral of a matter to the full court.
The legislature probably omitted this because it considered it
immaterial who initiates
the request. There is no statutory
preclusion to a request being made by any of the parties as happened
in
casu
. Section 14 applies whether the referral is initiated
mero motu
by any of the aforesaid functionaries or the
presiding judge in consultation with any of the aforesaid
functionaries or on request
by any of the parties.
[16]
Further, the Superior Courts Act does not prescribe the criteria for
the allocation of a matter
before the full court. Erasmus suggests
that cue may be taken from section 13 which prescribes the number of
appeal judges who
preside in a matter in the Supreme Court of Appeal
(“the SCA”). In terms of section 13, SCA proceedings are
ordinarily
heard by five judges of appeal. However, the President of
the SCA may direct that a matter be heard by 3 judges of appeal or by
a larger number of judges of appeal where the
importance
of a matter so requires. (
Emphasis
added
).
[17]
The term ‘
importance
’
is
not defined in the Act. Erasmus further suggests that the term
includes cases where the issue to be determined is
res
nova
,
where it is of great significance to a particular group, such as the
members of a profession or a sector of the commercial community,
or
where there are conflicting decisions of the different divisions of
the High Court or of the SCA.
[8]
(
Emphasis
added
).
[18]
For the reasons set out below, Judge President Mlambo and I
unanimously rejected the request:
18.1 The request is made
late. No cogent reason for its lateness has been advanced. SE’s
attorneys of record wrote to the
Deputy Judge President on 9 October
2017, requesting a special allocation of the matter in terms of
Directive 26.2 of the Practice
Directives. SJ’s attorneys were
copied in the letter. The letter contained no request that the matter
be heard by the full
court. The attorneys for the parties complied
with the requirements of the Practice Directives in respect of
special allocations.
On 19 October 2017, the Deputy Judge President
informed the attorneys that the matter has been specially allocated
for hearing
on 19 March 2018. That letter makes no reference to a
full court. A single set of papers was prepared for the presiding
judge as
opposed to three set of papers for the full court. In the
circumstances, the contention by SJ’s counsel that she only
became
aware that the matter has been allocated before a single judge
a week before the matter served before me does not justify the late
request. For reasons stated above, it does not make sense that SJ’s
legal team only became aware a week before the hearing
that the
matter will be heard before a single judge.
18.2 There is no doubt
about the importance of the point
in limine
for the Islamic
community. However, the issue under consideration is not
res nova
.
As I demonstrate below, related issues in respect of Islamic
Marriages have been considered by the Constitutional Court, the SCA
and other divisions of the High Court. Further, the point
in
limine
has been considered by other divisions of the High Court.
18.3 Judgments on this
issue by other divisions of the High Court are not conflicting.
18.4
Concerns raised on behalf of SJ regarding the need for authority in
this division on the issue under consideration are
addressed by the
stare
decisis
doctrine.
[9]
This doctrine has numerous nuanced permutations which are not
necessary to consider for the purpose of this judgment. Generally,
judgments handed down in the Constitutional Court and the Supreme
Court of appeal are binding on this division while judgments
of other
divisions are only persuasive. A judgment by a single judge of this
division will become authority in this division and
may be departed
from by another single judge where the facts are distinguishable or
where he or she is of the view that the previous
judge has erred. I
therefore disagree that having the point in limine heard by a single
judge will disturb the
stare
decisis
doctrine.
18.5
The link between this matter and the matter in which judgment is
reserved in the Western Cape division has not been established.
It is
unclear what the issues for determination in that matter are. Based
on submissions by SJ, the order sought in that matter
has no direct
bearing on this matter. That matter, if decided in favour of the
class will yield a directive to Parliament to expedite
the processing
of the Islamic Marriages Bill. This does not justify referral to the
full court in this division or even a stay
of these proceedings until
the Western Cape judgment is handed down. Such a stay would not
benefit the parties in this matter.
Effectively, SJ seeks a stay of
this matter until the law on Islamic marriages is reformed. On that
argument, this court would
not consider any similar cases until the
Bill is enacted. That would lead to an untenable situation. The
process for getting the
Islamic Marriages Bill took almost two
decades.
[10]
It is unclear how
long it will take before the Bill is enacted into law if it ever will
be. This matter as well as any other similar
matter that is enrolled
for hearing prior to the enactment of the Bill stand to be determined
on the law as it is.
THE PROCEEDINGS BEFORE
CARELSE J
[19]
When the matter served before Carelse J, she granted the following
order by agreement between the parties:
“
1.
The
point in limine as to whether it is competent for the above
Honourable Court to award maintenance pendente lite to the applicant
in terms of the provisions of Rule 43(1) of the Uniform Rules of
Court (“the rules”), is postponed sine die.
...
4.
EAF is admitted as amicus curiae to the
proceedings in terms of the provisions Rule 16A
(sic)
of
the rules (“the amicus”).
5.
The amicus shall deliver:
5.1
Notice of the constitutional issue raised by him in terms of Rule
16(1) (a); and
5.2 File
his supplementary affidavit by no later than 15 March 2017.
6.
…”
THE
AMICUS
[20]
The
amicus
is a Moulana. He describes himself as an Islamic
Scholar. As already alluded to and as apparent from the above order,
he was admitted
into these proceedings as an
amicus
by
agreement between the parties. As it has turned out, his role as well
as the value he stands to add in these proceedings is
questionable.
[21]
He sought to be admitted as an
amicus
in order to raise a
constitutional issue
.
The issue he sought to raise was yet to
be articulated as he was yet to file his notice in terms of Uniform
Rule 16A. In his application
for admission filed on 24 February 2017,
he set out the following reasons for seeking admission:
21.1 the marriage between
the parties has been terminated by the issuing of a
Talaq
;
21.2 the issues that
arise between the parties in the Rule 43 application have a bearing
on the exercise by the parties of their
religious and cultural rights
in terms of sections 14 and 31 of the Constitution. If granted, the
Rule 43 order will violate the
aforesaid rights of the parties’;
21.3 this court no
longer has jurisdiction in respect of the Rule 43 application as the
marriage between the parties has been
dissolved;
21.4 patrimonial
consequences of the parties’ marriage are determined in terms
of Islamic Law.
[22]
The
amicus
filed the said notice on 15 March 2017. There he
articulates the issue he seeks to raise as follows:
“
Whether the
application of the provisions of Rule 43 as between the parties, who
were previously married to each other accordingly
(sic) to Islamic
rites and whose marriage has been dissolved by the issue of a Talaq
by the Respondent to the Applicant, amounts
to a violation of the
parties’ alternatively, the Respondent’s rights in terms
of Section 14 and Section 31 of Chapter
3 of the Constitution of the
Republic of South Africa Act No. 108 of 1996 (as amended) (sic) and
is unconstitutional
.”
[23]
Rule 16A regulates the admission of
amici
in the High Court.
It provides for two grounds for admission. An
amicus
is
admitted by agreement between the parties, or where an application
for admission as an
amicus
is opposed, by order of court. I
quote the rule below:
“
16A Submissions
by an amicus curiae
...
(2)
Subject to the provisions of national legislation
enacted in accordance with section 171 of the Constitution
of the
Republic of South Africa, 1996 (Act 108 of 1996), and these Rules,
any interested party in a constitutional issue raised
in proceedings before a court may, with the written consent of all
the parties
to the proceedings
,
given not later than 20 days after the filing of the affidavit or
pleading in which the constitutional issue was first raised,
be
admitted therein as amicus curiae upon such terms and conditions as
may be agreed upon in writing by the parties.
(
Emphasis
added
).
…
(9)
The court may dispense with any of the
requirements of this rule if it is in the interests of justice to
do
so.
”
[24]
Although the
amicus’
s admission was achieved by
agreement between the parties, it fails to accord with Rule 16A in
several respects. Firstly, neither
of the parties has raised a
constitutional issue in which the
amicus
has an interest. The
amicus
has raised the constitutional issue
mero motu
.
This is contrary to the unambiguous language used in Rule 16A.
[25]
The
amicus’s
interest
in the outcome of the Rule 43 application is the constitutional
rights of the parties. This too is contrary to the unambiguous
language used in Rule 16A. The
amicus
has
not expressed an interest as a Moulana in the constitutional issue he
seeks determined. I would hold a different view on his
involvement in
these proceedings if his complaint related to how the order would
impact the Islamic community. The following remarks
by Ngcobo J (as
he then was) in
Hoffmann
v South African Airways,
[11]
expressed
in consideration of the
amicus’s
entitlement
to legal costs are worth referring to:
“
...
An
amicus
curiae
assists
the court by furnishing information or argument regarding questions
of law or fact. An amicus is not a party to litigation,
but believes
that the Court’s decision may affect its interest. The
amicus
differs
from an intervening party, who has a direct interest in the outcome
of the litigation and is therefore permitted to participate
as a
party to the matter. An
amicus
joins
proceedings, as the name suggests, as a friend of the Court. It is
unlike a party to litigation who is forced into the litigation
and
this compelled to incur costs. It joins the proceedings to assist the
court because of its expertise or interest in the matter
before the
Court. It chooses the side it wishes to join, unless requested by the
court to urge a particular position. An
amicus
,
regardless of the side it joins, is neither a loser nor a winner and
is generally not entitled to be awarded costs”.
(At
paragraph 63).
[26]
More problematic is his personal involvement in this matter. He was
approached by SE for assistance with
issuing a
Talaq
certificate confirming the
Talaq
SE issued to SJ. SE sent the
amicus
a WhatsApp voice note, recording the issuing of the
Talaq
. The
amicus
then issued a
Talaq
certificate confirming that SE has issued a
Talaq
to SJ.
Subsequently – but before he was admitted as an
amicus
in these proceedings - the
amicus
deposed to a confirmatory
affidavit attesting to the truthfulness of these events, which SE
narrated in a supplementary affidavit
filed a few days before the
Rule 43 application was heard by Carelse J. To that extent the
amicus
is SE’s witness in these proceedings.
[27]
Relying on
Hoffmann,
Counsel for SE submitted that there is no
legal requirement that an
amicus
ought to be neutral. In
Hoffmann
, the Constitutional Court ruled that an
amicus
may align him or herself to the case of a particular party and that
he may lead evidence to support the submissions he intends
making.
The AIDS Law Project (“
AL
P”) was admitted as an
amicus
by agreement between the parties and was permitted to
place before the court certain expert evidence. The evidence included
the
unanimous views of the parties’ experts on these issues.
The
amicus
in
Hoffmann
did not participate in that case
as a witness. These factors render the facts in
Hoffmann
distinguishable from the facts in
casu
. Therefore Hoffman is
not authority for the proposition that an
amicus
may play a
dual role as an
amicus
and as a witness for one of the
parties.
[28]
Amici
play a very important role in the South African
judicial system and are of great assistance to the courts because
they present
evidence and/ or legal argument not presented by the
parties, thus equipping courts to consider a different perspective on
the
issue under consideration not brought by any of the parties.
Allowing the
amicus
to play a dual role as an
amicus
and
as a witness for one of the parties not only has the potential to
muddy the important role
amici
play in our courts, there is a
potential that they may present the same evidence both as an
amicus
and as a witness, rendering their role as an
amicus
redundant.
In casu, apart from the constitutional argument that the
amicus
advanced – which as already stated, has no place in these
proceedings as it has not been raised by any of the parties - his
factual evidence overlaps with that he confirmed in a confirmatory
affidavit filed on behalf of SE.
[29]
Regrettably, in the present circumstances, for the reasons advanced
above, I find that
amicus
dual role as a witness for SE on the
one hand, and as an
amicus
on the other hand is inappropriate.
I also find that the evidence advanced by the
amicus
in his
capacity as an
amicus
as well as the legal submissions made on
his behalf adds no value to these proceedings.
THE POINT
IN LIMINE
[30]
As already stated, the main issue for determination in these
proceedings is a point
in limine
whether Rule 43 applies to
parties married in terms of Islamic Law and in circumstances where a
Talaq
has been issued. SJ contends that it does. SE contends
that it does not.
[31]
As alluded to in
AM
v RM,
[12]
there
are three different types of a
Talaq,
determined
by the procedure followed by the husband when issuing it
.
It
is not necessary to examine each type for the purpose of this
application because SJ takes no issue with the procedure followed
by
SE when he issued the
Talaq
.
[32]
SE contends that the parties’ marriage has been dissolved –
by the issuing of the
Talaq -
and that the Rule 43 procedure
is incompetent because the parties are no longer married. SE further
contends that once divorced,
in terms of Islamic Law, SJ is only
entitled to maintenance from him for a period equivalent to three
menstrual cycles, primarily
because during this period, SJ may not
enter into another marriage. On the authority in
Khan v Khan
,
it was also contended on behalf of SE that SJ may pursue the latter
claim in the maintenance court. SJ questions SE’s
bona fides
for issuing the
Talaq
on the eve of the hearing of the Rule 43
application.
[33]
It is a settled rule in our law that Islamic marriages lack legal
recognition. As a result, legal
consequences do not flow from Islamic
marriages. This has presented various difficulties for parties in
these marriages. Firstly,
the position of parties in these marriages
is different to that of parties whose marriages are legally
recognised, religion being
the only differentiating factor. Secondly,
third parties would refuse to give effect to the wishes of parties to
an Islamic marriage,
denying them legal protection. Thirdly, in the
event of a dispute between the parties, as is the case in
casu
,
one party to the marriage would seek resolution in terms of Islamic
Law and another would contend for a remedy generally available
to
parties married in terms of civil law where the latter provides
better legal protection party.
[34]
Even before the advent of constitutional democracy in South Africa,
from time to time courts
have attached some legal consequence to
Islamic Marriages were they met the requirements of a putative
marriage.
[13]
The rational for
this approach was to extend legal consequences to Islamic marriages
to give effect to their
de
facto
existence.
Since the enactment of the 1996 Constitution, courts have also
extended legal consequences to Islamic marriages to give
effect to
constitutional rights.
[35]
In
Amod
v Multilateral Motor Vehicle Accidents Fund (Commission for Gender
Equality Intervening
),
[14]
on the basis of the husband’s legal duty to maintain his wife
in terms of Islamic Law, the court recognised a widow’s
claim
for loss of support against the Multilateral Motor Vehicle Accidents
Fund following a fatal motor vehicle accident involving
her husband.
[36]
In
Ryland
v Edros,
[15]
the
Constitutional Court held that an Islamic marriage is a contract from
which certain proprietary obligations flow. This provides
an adequate
reason to impose some of the consequences of a civil marriage on an
Islamic marriage, chiefly, the obligation of maintenance.
In
Daniels
v Campbell NO
and
Others,
[16]
the Constitutional
Court held that an Islamic spouse in a monogamous Islamic marriage
had the right to inherit and to claim maintenance
from their deceased
spouse in terms of the Intestate Succession Act,
[17]
and in terms of the Maintenance of Surviving Spouses Act.
[18]
[37]
In
Khan
v Kahn
[19]
it was held that partners in Islamic marriages owe each other the
duty of support, just as in civil marriages and therefore, have
the
right to claim maintenance from one another in terms of the
Maintenance Act.
[20]
[38]
In
Hassam
v Jacobs NO and Others
,
[21]
the Constitutional Court extended the right to maintenance of a woman
married under Islamic Law to a woman who is party to a polygamous
Islamic marriage. In
AM
v RM,
[22]
a
woman married in terms of Islamic Law successfully claimed interim
maintenance from her husband for herself and her minor daughter
pending a divorce action that she instituted in terms of the
Divorce
Act,
[23
]
and in circumstances
were a
Talaq
has
been issued.
[39]
The above account is by no means exhaustive. Notably, different
courts have been consistent in
extending legal consequences to women
and children subject to Islamic marriages, despite the continued lack
of recognition of these
marriages. In particular courts have been
consistent in giving effect to parties’ reciprocal duty of
support in different
contexts where they sought to enforce this duty,
including in a
Rule 43
application.
[40]
In
casu
,
no compelling argument has been advanced why I should depart from the
legal foundation laid in the above cases. Relying mainly
on
AM
v RM
, counsel for SJ
urged me to find for SJ and dismiss the point
in
limine
.
[41]
Counsel for SE argued that this case is distinguishable from
AM v
RM
and for that reason, I should find that the principle in that
case is not applicable here and uphold the point
in limine
. He
argued that in
AM v RM
, unlike in this case, the wife
challenged the validity of the
Talaq
. In
casu
SJ does
not challenge the validity of the
Talaq
. Therefore the
Talaq
is valid. Counsel for SE further contended that by accepting the
validity of the
Talaq
, SJ accepts that she has been divorced.
Therefore she is no longer a spouse as envisaged in
Rule 43
and the
remedy provided for in that Rule is no longer available to her.
Relying on
Khan v Khan
, SE’s counsel also contended that
the only remedy available to SJ is spousal maintenance in terms of
the
Maintenance Act 99 of 1998
. In his answering affidavit, SE
asserts that under Islamic Law, such maintenance is only limited to
three months.
[42]
Counsel for SJ explained what is meant by the words used in heads of
argument filed for SJ ‘accepting
the validity of the
Talaq
but disputing its effect’. She explained that under Islamic
Law, there are three prescribed procedures a husband ought to
comply
with when issuing a
Talaq.
Once a
Talaq
is issued and
unless the wife takes issue with the procedure followed, the wife has
no option but to accept the
Talaq
. In this instance, SJ takes
no issue with the procedure followed. However, since there is a
pending divorce action which was initiated
before the
Talaq
was issued, whether the
Talaq
is of any effect given the
circumstances under which it was issued is an issue for determination
in the divorce action and not
in these proceedings.
[43]
The submission on behalf of SE that the applicant’s reliance on
AM v RM
is misplaced because it is factually distinguishable
lacks merit. In
AM v RM,
the respondent raised a point
in
limine
in a
Rule 43
application brought by the applicant pending
the determination of a divorce action in which the applicant sought
an order declaring
that her Islamic marriage to the respondent is
valid. The respondent objected
in limine
that no marriage
exists and that
Rule 43
does not apply to the parties’
marriage. He relied on two reasons for this contention. Firstly, that
the parties were already
divorced in terms of Islamic Law. Secondly,
that a marriage in terms of Islamic Law is not a marriage in terms of
the Marriage
Act.
[44]
Although indeed in
AM v RM
, the applicant disputed the
validity of the
Talaq
which is not the case in
casu
;
there the court did not deem it necessary to resolve that dispute.
(See para 2 of that judgment). Therefore the status of a
Talaq
- whether it is valid or effective - did not inform the court’s
decision. Rather there are similarities in the facts of the
two cases
that informed the court’s decision; namely the fact that there
is a pending divorce action between the parties
and that despite the
pending divorce action, the respondent sought to oust the
jurisdiction of the court in respect of the Rule
43 application on
the basis that he has issued a
Talaq
dissolving the parties’
Islamic marriage. This places this case on all fours with
AM v RM
.
Therefore the contention on behalf SE that
AM v RM
finds no
application in
casu
stands to be rejected.
[45]
The contention by counsel for SE that SJ ought to have pleaded that
the
Talaq
is of no consequence due to the pending divorce
action lacks merit. There is no dispute that a divorce action in
which SJ seeks
her marriage dissolved in term of the
Divorce Act is
pending and that the divorce action pre-dates the issuing of the
Talaq
. I am persuaded by the approach adopted in
AM v RM.
I find that the dispute regarding the status of the
Talaq
is
irrelevant to the question whether a woman is entitled to relief in
terms of
Rule 43.
Treating the Islamic marriage in these proceedings
as dissolved by the issuing of the
Talaq
as contended for by
SE will result in a grave injustice as it will deny SJ the interim
remedy that
Rule 43
provides for pending the determination of the
divorce action where she seeks to raise constitutional issues.
[46]
The remedy provided for in
Rule 43
plays a vital role in matrimonial
proceedings. It is at the disposal of a party who seeks interim
maintenance and other ancillary
relief to alleviate the hardships
that flow from a marriage in the process of being terminated by
divorce or annulment. It is immaterial
that there is an allegation
that the marriage is invalid or that the claimant is not a spouse.
(See
Zaphiriou
v Zaphiriou).
[24]
[47] I
therefore determine the point
in limine
, guided by the
following legal principles, extrapolated from the cases discussed in
paragraphs 35 to 38 above:
47.1 although
Islamic marriages are not legally recognised because they are not
solemnized in terms of the Marriage Act and
therefore not valid under
South African Law,
de facto
the parties are married
;
47.2 parties to an
Islamic marriage owe each other the reciprocal legal duty of support
regardless whether they are in a monogamous
or polygamous marriage;
47.3 Rule 43 is a
procedural mechanism to give effect to the reciprocal legal duty of
support of parties to a marriage pendente
lite, even where the
validity of the marriage is in dispute;
47.4 reference to the
word ‘spouse’ in Rule 43 includes a spouse to a marriage
concluded in terms of Islamic Law. Therefore
Rule 43 is applicable to
marriages concluded in terms of Islamic Law;
47.5 the issuing of a
Talaq
does not preclude a divorce action where a
constitutional challenge regarding the legal effect of the
Talaq
is in dispute;
[48]
SE and SJ owe each other the reciprocal duty of support arising from
their Islamic marriage. The question regarding
the legal effect of
the
Talaq
is an issue in the
pending divorce action and therefore stands to be determined in that
action. Until that issue is determined,
there is a matrimonial
dispute between the parties that serves as the jurisdictional factor
for the Rule 43 application. I find
that despite the issuing of a
Talaq
,
due to the pending divorce action, this court has jurisdiction to
determine the Rule 43 application. Therefore SE’s point
in
limine
stands
to be dismissed.
LEGAL COSTS
[49]
It is common course that counsel for the parties
are acting
pro
bono
.
The applicant’s counsel seeks costs against SE in the event
that the point
in
limine
is
dismissed. SJ also seeks costs against the
amicus
.
SJ’s contention for the costs of counsel as well as costs
against the
amicus
is
misplaced and stands to be rejected. Firstly, the request for
counsel’s costs goes against the bar council rules because
counsel is acting
pro
bono
.
[25]
Secondly, the
amicus
was
admitted by agreement between the parties. It is inappropriate for SJ
in these circumstances to seek costs on the basis that
this court
found that the
amicus’s
involvement
was inappropriate and further that he had no value to add in these
proceedings. The latter is a finding by this court
after SJ consented
to the admission of the
amicus
.
Under these circumstances, I find no reason to depart from the
principle set out in
Hoffmann
in
relation to the
amicus’s
lack
of liability for costs.
[50]
In the premises, the following order is made:
ORDER
1.
The respondent’s point
in limine
is dismissed with
costs, which costs shall exclude the costs of counsel.
2.
No cost order is made against the
amicus curiae
.
________________________________________
MADAM
JUSTICE
L
T MODIBA
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEARANCES
Applicant’s
Counsel:
Adv Bezuidenhout
Adv Grobler
Adv Tshoma
Instructed
by:
Ayoob Kaka Attorneys
Respondent’s
Counsel: Adv Bester
Instructed
by:
ST Attorneys
For
the
Amicus Curiae
:
Adv E Venter
Instructed
by:
JHS Attorneys
Date
heard:
19 March 2018
Date
delivered:
24 April 2018
[1]
A
Talaq
is
a unilateral divorce process available to a man wishing to terminate
his Islamic marriage. He does so fundamentally by pronouncing
Talaq
thrice
either verbally, in writing or in recent times even electronically
by SMS, WhatsApp or social media platforms. See AM v
RM
2010 (2) SA
223
(ECP) at paragraph 2. See also
https://en.oxforddictionaries.com/definition/talaq
and
https://en.wikipedia.org/wiki/Divorce_in_Islam
.
[2]
The
Bill was published for public comment under Notice No 37 of 2011 in
Government Gazette No 33964 on 21 January 2011.
[3]
Act
10 of 2013.
[4]
Act
No. 59 of 1959.
[5]
I
interpreted this section guided by the trite principles set out in
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2014]
1 All SA 517
(SCA) at para 12 taking into account the language used
by the legislature, the context and purpose of this legislation.
[6]
See
Erasmus,
Superior Court Practice, Original Service 2015 Commentary in respect
of Subsection (1) (a):’Constituted before
a single judge’
A2-16 as well as
Arenstein
v Secretary for Justice
1970
(4) SA 273
(T), specifically 279C.
[7]
In
McDonald
v Minister of Mineral & Energy
2007
(5) SA 642
(C) at para 18, the court held that where the law
requires a functionary to act ‘
in
consultation with
’
another
functionary, that means
there
must be concurrence between the functionaries
.
The court distinguished this phase with the phrase ‘
after
consultation with
’
which
requires no more than that the ultimate decision be taken in good
faith, after consulting with and giving serious consideration
to the
views of the other functionary.
[8]
Erasmus,
A2-16.
[9]
This
is a common law legal principle in terms of which a rule or
principle established in a previous legal case is either binding
or
persuasive for a court in subsequent cases dealing with similar
issues or fact. Moseneke DCJ (as he then was), discusses this
principle in
Daniels
v Campbell NO and Others
[2004] ZACC 14
;
2004
(5) SA 331
from paragraph 94.
See
also LAWSA 2
nd
Ed
Vol 5 paragraph 170 as well as du Bois, Wille’s Principles of
South African Law, 9
th
Ed
(2007) pages 70-92.
[10]
The
Bill emanated from an investigation conducted by the South African
Law Reform Commission (SALRC). The investigation led to
the
publishing of the Issue Paper for public comment in May 2000 styled:
Islamic
Marriages and Related Matters, Issue Paper 15
under
ISBN: 0-621-30089-6. The investigation culminated in the publication
of the Bill under Notice No 37 of 2011. The closing
date for
comments was 31 July 2000. The Bill was only published almost a
decade after the Issue Paper was published.
[11]
2001 (1) SA 1
CC.
[12]
See citation in foot note 1. At paragraph 2 of the judgment.
[13]
Moola
and Others v Aulsebrook NO and Others 1983 (
1)
SA 687
(N) at 690A-B. See also
Hoossain
v Dangor
[2009]
JOL 24617
WCC
.
[14]
1999
(4) SA 1319 (SCA).
[15]
1997 (2) SA 690 (CC).
[16]
2004 (5) SA 331 (CC).
[17]
Act No. 81 of 1987.
[18]
Act No. 27 of 1990.
[19]
2005 (2) SA 272 (T).
[20]
Act No. 99 of 1998.
[21]
2009 (5) SA 572 (CC).
[22]
2010 (2) SA 223
(ECP).
[23]
Act
No. 70 of 1970.
[24]
1967 (1) SA 342
(W). Here the court said it was reiterated that Rule
43 was designed to provide a streamlined and inexpensive procedure
for procuring
the same interim relief in matrimonial actions as was
previously available under the common law in regard to maintenance
and
costs. The purpose of such relief was to regulate the position
between the parties until the court finally determined all the
issues between them, one of which might well be whether the parties
had contracted a valid marriage or not, or if they had, whether
it
still subsisted (344 D-E). It was held that Rule 43 was to be
interpreted accordingly, and spouse in Rule 43 (1) was held
to be
interpreted as including not only a person who is admitted to be a
spouse, but also a person who alleges that he or she
is a spouse,
and that allegation is denied (345 F-H).
[25]
General Council of the Bar of South Africa Uniform Rules of
Professional Conduct, Rule 7.3.1.