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[2021] ZAGPJHC 119
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F.I v A.P (2021/13610) [2021] ZAGPJHC 119 (5 August 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED.
DATE:
5 August 2021
Case No: 2021/13610
In
the matter between:
F[....]
I[....]
Applicant
and
A[....]
P[....]
Respondent
REASONS FOR ORDER DATED 4
AUGUST 2021
WILSON
AJ
:
1
This application under Rule 43 for maintenance
pendente
lite
, a contribution to costs and an order regulating custody of,
and access to, the parties’ minor child came before me on 4
August 2021. I decided a number of preliminary points. Based on my
disposition of those points, the parties agreed that the matter
should postpone
sine die
on the terms set out at the end of
these reasons.
2
The preliminary points were as follows –
2.1
whether the applicant (“Ms. I[....]”)
had ensured that
the respondent (“Mr. P[....]”) had been given ten days’
notice of the hearing of the matter,
as required in terms of Rule 43
(4);
2.2
whether a supplementary affidavit sought to be
introduced by Ms.
I[....] should be admitted;
2.3
whether Rule 43 applies to the parties at all,
given that, so it was
contended for Mr. P[....], the parties are not “spouses”,
because their marriage, concluded in
terms of Islamic law, had been
dissolved before the decision of the Supreme Court of Appeal in
President of the Republic of South Africa v Women’s Legal
Centre Trust
2021 (2) SA 381
(SCA) (“
Women’s Legal
Centre Trust
”), and the main action had not been instituted
until after that decision was handed down; and
2.4
whether the respondent ought to be ordered to make
financial
disclosure in terms of the decision of this court in
E v E
2019 (5) SA 566
(GJ) (“
E v E
”).
3
I address each of these points in turn.
Non-compliance
with Rule 43 (4)
4
Rule 43 (4) requires that a respondent be afforded ten days’
notice of any hearing of an application in terms of Rule 43 (1).
In
this case, the respondent was given notice of the enrolment of the
application on 23 July 2021. The matter was enrolled for
3 August
2021, three court days less than required by Rule 43 (4). Ms.
Ternent, who appeared for Ms. I[....], conceded the short
notice, but
submitted that there had been no prejudice to Mr. P[....]. Ms. Segal,
who appeared for Mr. P[....], conceded that there
had been no
prejudice, and accepted that I had the discretion to condone the
non-compliance with Rule 43 (4).
5
Given the slightness of the short notice, and the absence of
prejudice, I condoned the non-compliance with Rule 43 (4).
The
supplementary affidavit
6
Ms. Ternent sought leave to introduce a supplementary
affidavit on Ms. I[....]’s behalf. The content of the affidavit
was
mostly a commentary on some of the allegations in Mr. P[....]’s
sworn replying statement, and some legal submissions. The
only new
fact was an allegation about the termination of a cell phone
contract, the relevance of which I struggled to ascertain.
While I
accept Ms. Ternent’s submission that there may be circumstances
in which a further affidavit, beyond those permitted
in terms of Rule
43 (2) and (3), ought to be received, I did not agree that those
circumstances were present in this case.
7
Ms. Ternent’s submissions that a supplementary affidavit
ought to be allowed to enable an applicant to deal with misleading
or
inadequate financial disclosure in the sworn replying statement
carried some weight. But the problem in this case is that Mr.
P[....]
has not yet made the disclosures required by the Rule, read with the
E v E
decision. If, in light of those disclosures, when they
are made, Ms. I[....] is advised to seek leave to file a
supplementary affidavit,
the court hearing the merits of the
application will be free, if it chooses, to admit that affidavit.
8
Accordingly, the effect of my refusal to admit the
supplementary affidavit tendered before me is not, as Ms. Segal
submitted, to
disbar Ms. I[....] from seeking leave to file a
supplementary affidavit at a later stage. Whether such an application
will be made,
and what its merits will be, are issues for another
court to decide.
Does
Rule 43 apply?
9
The parties were married in terms of Islamic law. The marriage
subsisted for almost 24 years. It was entered into by way of a
“nikah”,
which is a written agreement commencing a
marriage known to Islamic law, on 1 June 1996. It was dissolved
on 19 January 2020,
by way of a “khula”, which is
effectively an annulment agreement in terms of Islamic law. Ms.
I[....] instituted an
action in terms of the
Divorce Act 70 of 1979
on 17 March 2021.
10
Ms. Segal submitted that, because the marriage did not subsist
at the time the action in terms of the
Divorce Act was
instituted,
the parties were not “spouses” for the purposes of
Rule
43
, and
Rule 43
accordingly does not apply.
11
Ms. Segal amplified her submission by reference to the
decision of the Supreme Court of Appeal in
Women’s Legal
Centre Trust
. In that matter, the Supreme Court of Appeal
declared various sections of the
Divorce Act unconstitutional
because
the Act fails to provide recognition to marriages concluded under
Islamic law. It suspended its declaration of invalidity,
and granted
interim relief requiring the
Divorce Act to
be read to apply to “a
union, validly concluded as a marriage in terms of Sharia law and
subsisting at the date of this order,
or, which has been terminated
in terms of Sharia law, but in respect of which legal proceedings
have been instituted and which
proceedings have not been finally
determined as at the date of this order”. This interim
arrangement is intended to last
until the Divorce Act is amended by
Parliament.
12
Women’s Legal Centre Trust
was decided on 18
December 2020. Ms. Segal submitted that, because the interim relief
provided for in Women’s Legal Centre
Trust does not, on its
face, permit the parties’ Islamic marriage to be dealt with in
terms of the
Divorce Act, the
main action is not a divorce action,
and Ms. I[....] is not a “spouse” seeking matrimonial
relief for the purposes
of
Rule 43
(1).
1.
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13
There was some debate about whether the interim relief granted
in
Women’s Legal Centre Trust
does in fact exclude the
parties’ Islamic marriage from its ambit. But that is not an
issue that I need to decide.
14
Ms. Segal’s submission loses sight of the plain text of
section 167 (5) of the Constitution, 1996. Section 167 (5) states
that “[t]he Constitutional Court makes the final decision
whether an Act of Parliament, a provincial Act or conduct of the
President is constitutional, and must confirm any order of invalidity
made by the Supreme Court of Appeal, the High Court of South
Africa,
or a court of similar status, before that order has any force”.
15
The Supreme Court of Appeal’s decision in
Women’s
Legal Centre Trust
has been referred to the Constitutional Court,
which is yet to pronounce on the matter. Unless and until it does so,
the Supreme
Court of Appeal’s order of invalidity, of which the
interim relief is a mere incident, has no force or effect.
16
Ms. Segal submitted that the mere fact that the matter is
before the Constitutional Court makes no difference to the inquiry. I
must determine the matter on the Supreme Court of Appeal’s
decision, because that is the decision that is currently in force.
In
light of section 167 (5) of the Constitution, 1996, that submission
cannot be sustained. The situation is quite the reverse.
The Supreme
Court of Appeal’s order has no force unless and until the
Constitutional Court says so. It is, furthermore, very
common for the
Constitutional Court to vary the scope of declarations of invalidity
made by the High Court and the Supreme Court
of Appeal. It is even
more common for the Constitutional Court to interfere with, and even
completely expunge, interim orders regulating
the retrospectivity of
declarations of invalidity that lower courts make. I do not know what
the Constitutional Court will do,
and how it will affect the parties
in this case.
17
It follows that the decision in
Women’s Legal Centre
Trust
constitutes no obstacle to this application.
18
Moreover, the validity of the parties’ Islamic marriage,
its consequences in South African matrimonial law, the availability
of remedies under the
Divorce Act, and
any other issue bearing on the
merits of the divorce action are matters for the trial court. They
are beyond the scope of a
Rule 43
application.
19
Ms. Ternent very fairly conceded that I must at least be
satisfied that there is a matrimonial
lis
between the parties
before entertaining the
Rule 43
application. But no-one was able to
tell me what more I needed to know, in this case, other than that Ms.
I[....] has instituted
an action in terms of the
Divorce Act. If
that
action is said to be bad in law, there are remedies available to the
parties, in the prosecution and defence of the main action,
to
ventilate those issues.
20
But it falls far beyond anything relevant to a
Rule 43
application. I would ordinarily be slow to decide any issue in a
Rule
43
application that might bear on the main action. I am even more
reluctant to make sweeping findings on the validity and effect of
the
parties’ Islamic marriage in circumstances where the issues are
far from clear and straightforward, and the status and
regulation of
those marriages is currently receiving the attention of the
Constitutional Court.
21
It is trite that the word “spouse” in
Rule 43
(1)
includes a person who claims to be a spouse, even if that is denied.
“In other words, the Rule also applies where the
validity of
the marriage or its subsistence is disputed” (
Zaphiriou v
Zaphiriou
1967 (1) SA 342
(W) at 346G-H). Ms. I[....] clearly
claims to be a spouse (there would be no
Rule 43
application
otherwise), and there is an action in terms of the
Divorce Act
pending
.
Rule 43
plainly applies.
Financial
disclosure
22
That being so, Mr. P[....] is required to make the financial
disclosures required in terms of the decision of this court in
E v
E.
I asked Ms. Ternent whether Ms. I[....] wished to proceed in
the absence of those disclosures. In that event, I would have had to
have made an order on the merits of the
Rule 43
application based on
whatever inferences it was appropriate to draw from Mr. P[....]’s
failure to make such disclosure.
23
Ms. Ternent submitted, however, that Ms. I[....] was entitled
to the disclosures, and did not wish to proceed with the
Rule 43
application without them. Ms. Segal, too, submitted that the matter
should postpone for those disclosures to be made.
24
It was for these reasons that I condoned the non-compliance
with
Rule 43
(4), refused Ms. I[....] leave to file her supplementary
affidavit, dismissed Mr. P[....]’s point
in limine
relating to the application of
Rule 43
, directed Mr. P[....] to make
the appropriate financial disclosures and postponed the
Rule 43
application
sine die
.
25
In the result, I made the following order –
25.1
The respondent’s point
in limine
is dismissed.
25.2
The application is postponed
sine die
.
25.3
The respondent is directed to file his Financial Disclosure Form
within 10 days from the date of this order, as required by the
decision of this Court in the matter in
E v E
2019 (5) SA 566
(GJ) and the relevant practice directives of this division.
25.4
The costs of the application are reserved.
S
D J WILSON
Acting
Judge of the High Court
These
reasons were prepared and authored by Acting Judge Wilson. They are
handed down electronically by circulation to the parties
or their
legal representatives by email and by uploading them to the
electronic file of this matter on Caselines. The date for
hand-down
is deemed to be 5 August 2021.
HEARD
ON:
4 August
2021
DATE
OF ORDER:
4 August 2021
DATE
OF REASONS: 5 August
2021
For
the Applicant:
PV Ternent
Instructed
by Shaheed Dolie Inc
For
the Respondent:
L Segal SC
Instructed by Deanne Kahn
Attorneys