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[2015] ZAKZDHC 70
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T.M v Z.J (2195/2015) [2015] ZAKZDHC 70; 2016 (1) SA 71 (KZD) (2 September 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 2195/2015
DATE:
02 SEPTEMBER
In
the matter between
[T……]
[M…….]
.................................................................................................................
APPLICANT
And
Z…..]
[J….]
......................................................................................................................
RESPONDENT
REASONS
Date
delivered: 2 September 2015
MOKGOHLOA
J
[1]
‘
The fundamental shift that occurred
when South Africa became a constitutional democracy in 1994 heralded
changes in all areas of
the law. Significant changes were made, and
continue to be made in family law….The recognition of
Customary Marriages Act
120 of 1998 gave legal recognition to
marriages contracted in terms of African Customary laws, thereby
protecting the spouses of
these potentially polygamous unions.
…
Where
South African statutory law is still fundamentally lacking is in the
recognition of the rights of and protection of parties
to marriages
contracted in terms of Muslim law. For couples married in accordance
with civil law, marriages and divorces are dealt
with under the
relevant statutes, namely
the Marriage Act
25 of 1961, the Civil Union Act and the
Divorce Act 70 of 1979
. No
provision is, however, made in statutory law for the recognition of
marriages concluded in terms of Muslim Shariah law…
…
The
status of Muslim marriages has, since 1990, been the subject of
continuing investigation by the South African Law Reform Commission
(SALRC). Despite the efforts of the SALRC, as well as the draft
Muslim Marriages Bill, which was published as long ago as 2000,
there
has been no change to statutory law as its stands.’
[1]
[2]
With this prelude, I proceed to deal with the material terms.
[3]
The applicant brought an application in terms of rule 43 of the
Uniform Rules of Court.
She sought an order pendente lite granting her (a) primary residence
of her two minor children,
(b
)
maintenance
for herself and her minor children in the amount of R43 000, and
(c) contribution of R25 000 towards her legal
costs in the
divorce action she has instituted against the respondent. The
applicant married the respondent on 16 September 2000
in
Pietermaritzburg in accordance with Islamic law. Their marriage was
not registered according to the provisions of the Marriage
Act.
[2]
[4]
The respondent opposed the application and raised a point in
limine
.
Having heard argument from both counsel and having read the papers, I
made an order granting the applicant maintenance
pendent
lite
.
[5]
The parties have requested that I furnish reasons for my ruling on
the point in
limine
raised by the respondent. These are my reasons.
[6]
In limine
,
the respondent argued that no marriage existed between the parties,
and, accordingly, rule 43, which pertains to matrimonial matters,
had
no application. He based his argument on the fact that (i) he
terminated the marriage during November 2014 when he pronounced
a
single talaq (divorce) at the request of the applicant, and (ii) a
marriage according to Islamic law is not a marriage in terms
of the
Marriage Act.
[7]
In the divorce action pending between the parties, the applicant
seeks amongst others relief, a declarator to the effect that,
on a
constitutional interpretation, the provisions of the Marriage Act
countenance and recognise the solemnisation and legal validity
of
marriages concluded under the tenets of religion or, alternatively,
do not preclude the recognition of the solemnisation and
the legal
validity of such marriages. In the alternative, she seeks
an order declaring that s 11(3) of the Marriage
Act is
unconstitutional, and an order declaring the marriage concluded and
solemnised between the parties, according to the tenets
of Islamic
law, to be a valid marriage in law. Further, alternatively, the
applicant seeks an order declaring that, on a constitutional
interpretation of the
Divorce Act,
[3]
the word “marriage”, as it is used in that Act, includes
marriages concluded and solemnised in accordance with the
tenets of a
religion, and that therefore the marriage concluded and solemnised
between the parties, according to the tenets of
the Islamic religion,
to be a marriage for purposes of the
Divorce Act.
[8
]
According to Muslim law, a divorce comes into effect after the
notification by the husband to the wife of the divorce three times.
The question is how the divorce or talaq is pronounced. Some Muslim
scholars believe that the pronouncement of a talaq three times
at one
occasion is valid, whilst others believe that there shall be an
interval of one month between each talaq pronouncement.
For the
purpose of this application I am not required to determine the issue
of whether the parties are divorced or not as this
will be determined
by the court hearing the divorce action.
[9]
The issue for determination in this matter is whether the present
proceedings constitute “matrimonial action” as
contemplated in
rule 43(1).
Rule 43(1)
under the heading “Matrimonial
Affairs” provides:
‘
(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.’
[10].
Previously, Islamic personal law and other religious legal systems
were not officially recognised as part of South African
law. Neither
was a provision made in statutory law for the recognition of
marriages concluded in terms of Muslim law. This was
due to the
potentially polygamous nature of Muslim marriages. In fact the court
in
Ismail
v Ismail
[4]
held that a potentially polygamous marriage is inconsistent with
South African law since it is
contra
bonos mores
.
[11]
However, after the advent of democracy in 1994, the courts
started
changing their approach to Muslim marriages. The change in attitude
and approach manifested in cases such as
Amod
v Multilateral Motor Vehicle Accidents Fund (Commission for Gender
Equality Intervening)
,
[5]
where the Supreme Court of Appeal recognised a Muslim widow’s
claim for loss of support following the death of her
husband as a
result of a motor vehicle accident. The court held that what the
dependant must show is that:
‘
(a)
the deceased had a legally enforceable duty to support the dependant
and
(b)
it was a duty arising from a solemn marriage in accordance with the
tenets of recognised and accepted faith and
(c)
it was a duty which deserved recognition and protection for the
purposes of the dependant’s action.’
[6]
[12]
In
Khan
v Khan
[7]
the court had to consider whether there was a legal duty on the
husband, by virtue of provisions of s 2(1) of the Maintenance Act,
[8]
to maintain his wife, to whom he had been married by Muslim rites,
accepting that the marriage was in fact a polygamous one.
The court held that partners in a Muslim marriage, married in
accordance with Islamic rites, whether monogamous or not, were
entitled
to maintenance and thus entitled to maintenance in terms of
the Maintenance Act.
[13]
Counsel for the respondent conceded that there are cases, some
unreported, where the applicant was allowed to utilise rule
43 to
apply for
pendente
lite
maintenance. He however argued that none of these cases
are binding on this court. He referred me to an unreported
Natal Provincial Division decision in the case of
Jamalodeen
v Moola
[9]
where a woman who had been married in terms of Islamic law, and
divorced in accordance with Muslim rites was entitled to maintenance
in terms of rule 43, pending the final determination of her
constitutional challenge and divorce action. Levinsohn
J
ordered
pendente
lite
maintenance in terms of rule 43, subject to three conditions:
1.
The applicant would have to pay back all
maintenance received should the trial court find that the ex-husband
was not obliged to
pay maintenance.
2.
The applicant had to provide sufficient
security
de restituendo
to the satisfaction of the registrar of the court.
3.
Should the applicant fail to provide
security the obligation to pay maintenance would lapse automatically.
[14]
In criticising Levinsohn J’s approach in
Jamalodeen
,
Revelas J in
AM
v RM
stated:
[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 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 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.’
[15]
I share the sentiments as those expressed by Revelas J. The
imposition of restitutionary conditions renders the relief granted
in
terms of
rule 43
useless to a wife who approaches the court precisely
because she is unable to maintain herself and her children pending
the divorce
action. In my view the restitutionary
provisions are antithetical to the very purpose of an application in
terms of
rule 43.
[16]
In Zaphiriou v Zaphiriou
[11]
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 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
determines 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. The court held that
rule 43
was
to be interpreted accordingly, and ‘spouse’ in
rule 43
(1) was 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.
[12]
[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 applied in Zaphiriou should apply
to whether the court can make an order for an interim
contribution
towards costs.
[18]
Accordingly, the applicant cannot be precluded from obtaining relief
in terms of
rule 43
(1) by virtue of her Muslim marriage,
irrespective of whether the respondent pronounced a talaq or not.
[19]
For the reasons given, I was satisfied that the applicant was
entitled to the relief sought and made the following order:
1.
The primary residence of the minor children
Ziyaad, a boy born on 11 February 2002 and Naazneen, a girl, born on
11 July 2005 shall
be with the applicant.
2.
Pendente lite
the
respondent shall be entitled to have contact with the minor children
as follows:
2.1
During school term periods:
2.1.1
Every alternate weekend from after school
on a Friday to 17h00 on a Sunday.
2.1.2
Every alternate public holiday.
2.2
Every alternate short school holiday
period.
2.3
For one half of the long school holiday
periods.
2.4
For four hours on the minor’s
birthdays and respondent’s birthday.
2.5
For Father’s Day from 08h00 to 17h00
(with Mothers’ day to be spent with the applicant on the same
basis).
2.6
The sharing of special religious occasions,
namely Eid-ul-Fit and Eid-ul-Adha, alternating from 09h00 to 14h00
and 14h00 to 18h00,
save that the respondent will be entitled to have
contact with the said minor children from the eve Eid in respect of
which he
has access in order for the said minor children to attend
the Eid Salaat with him.
2.7
Telephone contact at all reasonable times.
2.8
Any further contact by agreement between
the applicant and the respondent.
3.
The respondent is directed to pay
maintenance to the applicant for herself and the minor children in
the sum of R20 000 per month.
4.
Pendente lite
the
respondent is directed to pay all the reasonable costs and expenses
directly relating to the education of the said minor children,
including the fees of the Madressa, purchase of books and stationery,
school clothing and equipment and extra-mural activities,
which
payment shall be limited to the sum of R5 000 per month per child.
5.
Pendente lite
the
respondent is directed to retain the minor children as beneficiaries
on his medical aid benefit scheme and to pay all reasonable
medical,
dental, ophthalmic and allied expenses in respect of the minor
children which are not covered by his medical aid.
6.
To contribute the amount of R15 000.00
towards the applicant’s legal costs.
7.
An order that the provisions of
Rule
43(7)
and (8) shall not apply to these proceedings and the costs of
this application be reserved for determination by the court hearing
the divorce action.
MOKGOHLOA
J
COUNSEL
Counsel
for the plaintiff : Adv Sk Dayal
Instructing
attorneys : Retha Meiring
8
on Eight Avenue
Morningside
Durban
Ref:
RM/ab/MAh3
Counsel
for the Defendant : Adv SI Humphrey
Instructing
Attorneys : Ms Omar & Ass,
Suite
1603, Nedbank House
Durban
Ref:
M.S. Omar/um
Date
of hearing : 14 and 16 April 2015
Date
of Judgment : 2 September 2015
[1]
Sheri
Breslaw ‘Muslim spouses - Are they ‘equally’
married?’
De
Rebus
(December 2013) 30 at 30-31.
[2]
25
of 1961.
[3]
70
of 1979.
[4]
1983
(1) SA 1006 (A).
[5]
1999
(4) SA 1319 (SCA).
[6]
Above
para 26.
[7]
2005
(2) SA 272 (T).
[8]
99
of 1998.
[9]
Case
number 1835/2006.
[10]
2010
(2) SA 223
(ECP) para 10.
[11]
1967
(1) SA 342
(W)
[12]
Above
at 345 F-H