AM v RM (2154/08) [2009] ZAECPEHC 31 (29 May 2009)

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[2009] ZAECPEHC 31
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AM v RM (2154/08) [2009] ZAECPEHC 31 (29 May 2009)

FORM A
FILING SHEET FOR SOUTH EASTERN
CAPE LOCAL DIVISION JUDGMENT
PARTIES
:
A M v R E M
Case
Number: 2154/08
High
Court: Eastern Cape – Port Elizabeth
Date
Heard: 26 May 2009
Date
Delivered: 29 May 2009
JUDGE(S):
REVELAS J
LEGAL
REPRESENTATIVES –
Appearances:
for
the Applicant(s): Adv P Scott
for
the Respondent(s): Adv A Beyleveld
Instructing
attorneys:
Applicant(s):
CR Knoesen Attorneys
Respondent(s):
Jozelle Attorneys
CASE
INFORMATION – Motion Court
Nature
of proceedings
:
Opposed Application (Rule 43)
Topic
:
Key
Words
:
Reportable
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE – PORT ELIZABETH
Case
No: 2154/08
Date
Heard: 26/05/09
Date Delivered 29/05/09
In the matter between
A M
Applicant
and
R A
M
Respondent
J U D G M E N T
REVELAS J
[1] This is an
application in terms of Rule 43 of the Uniform Rules of Court. The
applicant seeks maintenance for herself and her
minor
daughter,
pendente
lite
and
a contribution towards her legal costs in the divorce action she has
instituted against the respondent. The applicant married
the
respondent on 16 July 1998 in Durban in accordance with the Islamic
Law and Sunni custom. Their daughter was born in 1999.
[2]
In
limine
,
the respondent argued that no marriage existed between the parties,
and accordingly, that Rule 43 which pertains to
matrimonial
matters,
had
no application. The respondent’s challenge to the existence of the
marriage is twofold. Firstly he contends that the parties
were
already divorced in terms of Muslim Law. The applicant disputes this.
A divorce, in terms of Muslim Law, comes into effect
after the
notification by the husband to the wife of the divorce (
talaq
)
three times. Islamic scholars disagree about whether three
talaqs
uttered
in one sitting is equal to one
talaq
or
three separate ones. Fortunately (and I believe no doubt to the great
relief of Muslim scholars), I am not required to solve
the issue. For
reasons that will appear in this judgment, I also do not find it
necessary to determine the factual correctness
of the assertion by
the respondent that he and the applicant are divorced in terms of
Muslim Law. The respondent’s second contention
is that a marriage
according to Islamic Law is not a marriage in terms of the Marriage
Act 25 of 1961 (the Marriage Act). The
respondent also submitted
that this matter is to be distinguished from situations where, for
instance, a spouse who is married
in terms of customary law before
the commencement of the Recognition of Customary Marriages Act, Act
12 of 1998 (the Marriages
Act), and whose marriage is registered with
a registering officer, is entitled to interim relief in terms of Rule
43, pending the
action for a dissolution of such marriage.
[3] In the
divorce action pending between the parties apart from a decree of
divorce and certain ancillary relief relating thereto
(which includes
two maintenance orders), the applicant further seeks a declarator to
the effect that on an interpretation in the
light of the
Constitution, the provisions of the Marriage Act countenance and
recognize the solemnisation and legal validity of
marriages concluded
under the tenets of religion or, alternatively, do not preclude the
recognition of the solemnisation and legal
validity of such
marriages. In the alternative, she seeks an order declaring that
Section 11 (3) of the Marriages Act is unconstitutional,
and an order
declaring the marriage concluded and solemnized between the parties,
according to the tenets of the Islamic religion,
to be a legally
valid marriage in law. Further, alternatively, the applicant seeks an
order declaring that, on a constitutional
interpretation of the
Divorce Act, No 70 of 1979 (the
Divorce Act), the
word
marriage
as it is used in that Act, includes marriages concluded and
solemnized in accordance with the tenets of a religion, and an order

declaring the marriage concluded and solemnized between the parties,
according to the tenets of the Islam religion, to be a marriage
for
purposes of the
Divorce Act.
[4
]
Rule 43
(1)
provides that
Rule 43
shall apply to whenever a spouse seeks relief
from the court in respect of maintenance
pendente
lite,
a
contribution towards the costs of a
pending
matrimonial action,
and
interim custody of or access to any child. The issue for
determination in this matter is whether the present proceedings
constitute
a
pending
matrimonial action
.
[5] At first
blush, the obvious answer seems to be, that before the trial court
decides the issue whether the marriage between the
parties is valid
and the
Divorce Act is
applicable, there can be no relief under
Rule
43
because the marriage is illegal. However, in our courts an
increasing tendency has developed to enforce maintenance and other
rights
to spouses married in terms of Islamic Law, even thought both
the courts and the legislature do not legally recognize an Islamic

marriage (nikkah) as
a
marriage
in terms of the Marriage Act. The draft Muslim Marriage Bill,
published by the South African Law Reform Commission in Project 59

Islamic Marriages and Related Matters Report (July 2003), aimed at
legal recognition of Islamic marriages and other general regulation

of Muslim marital issues, is currently serving before the
Constitutional Court which may result in its expedited promulgation,

which hopefully will create certainty as to the position of Muslim
spouses.
[6] In
Amod
(born Peer) v Multilateral Motor Vehicle Accidents Fund (Commissioner
for Gender Equality Intervening)
1999
(4) SA 1319
(SCA) a claim for loss of support against the Fund was
recognized where the appellant (plaintiff) was a Muslim widow. The
decision
was based on the legal duty of the (deceased) husband to
maintain his wife during their marriage in terms of Islamic Law. In
Khan
v Khan
2005
(2) SA 272
(T)
the
court held that a wife married in accordance with Muslim rites,
whether monogamous or polygamous, was entitled to maintenance
during
their marriage and as such it fell within the ambit of the
Maintenance Act. It is significant that the enforcement of
maintenance
rights was in terms of the provisions of a statute. In
Daniels
v Campbell
[2004] ZACC 14
;
(2004
(7) BCLR 735
(CC)
,
the Constitutional Court interpreted the concept
spouse
and
survivor
in the
Intestate Succession Act, 1987
and the Maintenance of
Surviving Spouses Act, 1990 to include spouses married in terms of
Islamic Law (see also Rautenbach and
Goolam:
The
Legal Status of a Muslim Wife Under the Law of Succession: Is She
Still a Whore in Terms of the South African Law?
(
2004
15 (2) Stell LR
369).
[7
] The
duty of a husband to support and maintain his wife appears to be
recognised in Rule 43 applications where in the pending a
divorce
action, the legality of the marriage is challenged. There are two
unreported decisions on this issue:
Cassim
v Cassim (Part A) (TPD)
(Unreported
2006-12-15; Case Number 3954/06)
and
Jamalodeen
v Moola (NPD)
(Unreported
in Case Number 1835/06). As in the present matter, both these cases
were decided in the face of constitutional challenges
that were
pending (See:
Enforcement
of the Maintenance Rights of a Spouse, Married in Terms of Islamic
Law, in the South African Courts, OBITER 2007 28
(2) 340
)
.
[8
] In
Cassim
v Cassim
it
was held that there was a duty on the husband to maintain his spouse,
to whom he is married in terms of Muslim Law, in accordance
with a
general standard of living by providing for her reasonable needs in
terms of the Maintenance Act, and on that basis the
relief in terms
of Rule 43 was granted.
[9
] In
Jamalodeen
v Moola
the
question for decision was whether a woman who had been married in
terms of Islamic Law, but also divorced in accordance with
Muslim
rites (as alleged by the respondent,
in
casu
)
was entitled to maintenance in terms of Rule 43, pending the final
determination of her constitutional challenge and divorce action.

Levinson J
ordered
pendente
lite
maintenance in terms of Rule 43, but made it subject to the following
two conditions:
1.
In the event of the trial court finding that the ex-husband was not
obliged to pay her maintenance, she would be obliged to repay
her
husband all the amounts paid to her.
2.
She
had to enter into good and sufficient security de restituendo, to the
satisfaction of the Registrar of the Court.
A further
provision was added to the effect that the failure to provide
security would result in the automatic lapse of the obligation
to pay
maintenance. The more significant part of this order was that the
maintenance ordered was payable for a period beyond the
iddah
,
which is the period of three months after a Muslim divorce, during
which the husband remains obliged to pay maintenance in terms
of
Islamic or
Shari-ah
Law.
[10
] By
imposing restitutionary conditions as was done in
Jamalodeen
,
relief granted in terms of Rule 43 would be of no value to a wife who
has approached the court precisely because of her inability
to
maintain herself and children, pending the divorce action. In my
view, the consideration of the trial court eventually deciding
the
constitutional challenge in favour of a Muslim husband in Rule 43
proceedings does not require the
pendente
lite
maintenance order to be made subject to restitutionary provisions.
In ordinary divorce proceedings, an applicant granted maintenance
in
terms of Rule 43 (1), is never required to make repayment thereof if
she ultimately is unsuccessful in obtaining a final order
of divorce.
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
challenged 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
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, its 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.
[11
] In
Zaphiriou
v Zaphiriou
1967
(1) SA 342
(W)
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).
[12
] 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 a court,
then the same considerations applied above in
Zaphiriou
should apply to whether the court can make an order for an interim
contribution towards costs.
[13] Accordingly
,
I find that the applicant is not precluded from obtaining relief in
terms of
Rule 43
(1) by virtue of her Muslim marriage, irrespective
of whether the respondent uttered three
talaqs
or not.
[14] The point in
limine
is
accordingly dismissed with costs.
[15] In respect
of the
Rule 43
application I make the following order,
pendente
lite
:
The respondent
is ordered to pay maintenance
to the applicant in the amount of R2500.00 per month.
The respondent
is
ordered
to pay to the applicant maintenance for their minor daughter Aaliyah
in the amount of R3000.00 per month.
The respondent
is ordered to pay
a
contribution of R15 000.00 towards the applicant’s legal costs.
The costs of
this application
are to be costs in the Divorce action.
_______
______________
E REVELAS
JUDGE OF THE
HIGH COURT