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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2019] ZAKZPHC 68
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Dawood v Rahman (6578/2019) [2019] ZAKZPHC 68 (28 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case No. 6578/2019
In
the matter between
AMINA
DAWOOD
Applicant
and
SULEMAN
RAHAMAN
Respondent
JUDGMENT
BEZUIDENHOUT J
[1]
Applicant in terms of Rule 43 of the Rules of this court brought an
application against respondent
claiming pendente
lite
maintenance for herself, maintenance for two minor children, a
contribution to costs and that the primary residence of the minor
children be with her and access. She sets out in paragraph 6 of the
founding affidavit:
“
I have
issued, alternatively am in the process of issuing, divorce summons
against the respondent. A copy of such summons shall
be available at
the hearing of this application.”
[2]
Respondent in his opposing affidavit raised a point
in limine
that
Rule 43 applications are pending relief claimed between the parties.
It contends that the issue of maintenance between the
parties had
been resolved during October 2018 after the parties were divorced
during August 2018 in terms of Islamic Law. As applicant
abandoned
the matrimonial home she was not entitled to any further maintenance.
[3]
A second point
in limine
was raised that it is stated in the
founding affidavit that the marriage was not registered in terms of
any statutory provisions.
It was submitted as there was no recognised
marriage that there was thus no legal proceedings pending and
accordingly that Rule
43 does not apply. The issues raised
in
limine
were dealt with firstly on its own. Mr Vawda appearing on
behalf of applicant submitted that similar orders have been granted
in
other divisions where the parties had been married by Islamic
Rights. He referred me to the decision in Tasneem Mahomed v Zaki
Jasat 2195/2015 a KZN Durban decision by Mokgohloa J wherein such
relief was granted, even though the parties were married in terms
of
Islamic Rights and divorced in terms thereof. I was also referred to
the case of AM v REM 2154/08 ZA CPEHC 31 where similar
relief was
granted in terms of Rule 43 and also YO v ZW
(2018) ZAWCHC 61
, which
was decided on 25 May 2018. In all of these cases that I have been
referred to the parties sought a declarator that the
marriage be
declared to be valid or that subject to a constitutional challenge of
the validity of Islamic marriages the relief
in terms of Rule 43 be
granted. Especially in the case of YO v ZW the relief sought was a
declarator until legislation provided
for recognition of Islamic
marriages. In all of these cases, there was relief sought by way of a
declarator of some sort and the
relief in terms of Rule 43 pending
finalisation of such litigation. It was thus
pendente lite
.
[4]
In Woman’s Legal Centre Trust v The president of the Republic
of South Africa
2018 (6) SA 598
(WCHC). The court refused to grant
any interim relief. It ordered that the legislature be granted
twenty-four months to legislate
as to the recognition of marriages in
accordance with the tenants of Shanya Law (Islamic Marriages) as
valid marriages. In Khan
v Khan
2005 (2) SA 272
(TPD) it was held
that parties, married in accordance with Islamic Rights were entitled
to maintenance and therefore it fell within
the ambit of the
Maintenance Act 99 of 1998
. The particulars of claim were not
provided to me at the hearing by applicant but respondents’
counsel handed in a copy of
the particulars of claim which indicate
that applicant in paragraph 4 thereof avers that she and respondent
were married to each
other on the 7 June 2001 by Islamic Rights that
was not registered in terms of the marriage Act.
[5]
In the order of the particulars of claim she seeks a decree of
divorce. It is apparent from what
I have set out above that due to
the legislative process not having been finalised, Islamic Marriages
are presently not yet recognised
as valid marriages in terms of the
Marriage Act and that a decree of divorce can therefore not be
granted.
[6]
The provisions of Rule 43 have to be
pendente lite
thus
pending the hearing or finalisation of some matter. As was correctly
pointed out by Mr Moosa there is no such in this case.
It cannot be
pending the divorce as there cannot be a divorce in the present
circumstances. The only option would therefore be
for applicant to
seek declaratory relief pending the recognition of Islamic Marriages.
Applicant can proceed with a claim for maintenance
in the maintenance
court and in respect of arrears or primary residence of the minor
children in the Children’s Court.
[7]
If applicant’s papers are amended as set out above, applicant
can seek relief
pendente lite
, but not as the papers stand at
present.
Order
:
The
application is adjourned sine die and applicant is granted leave to
amend her papers and file a supplementary affidavit. Costs
are
reserved.
BEZUIDENHOUT
J
DATE
OF HEARING :
16
October
2019
DATE
OF JUDGMENT :
28
October
2019
FOR
THE APPLICANT :
Mr
E J Vawda
F Osman and
Assoc.
Applicants
Attorney
483 Currie
Road
DURBAN, 4091
Tel:
0727995892
FOR
THE RESPONDENT:
Mr
N Moosa
Respondents
Attorney
Suleman
Rehaman
81 Baringo,
722 Leeukop
Road, Sunninghill
JOHANNESBURG,
2191