Daniels v Campbell N.O and Others (1646/2001) [2003] ZAWCHC 41 (1 September 2003)

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[2003] ZAWCHC 41
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Daniels v Campbell N.O and Others (1646/2001) [2003] ZAWCHC 41 (1 September 2003)

REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
CAPE OF GOOD HOPE
PROVINCIAL DIVISION
CASE NO.
1646/01
In the matter between:
JULEIGA DANIELS APPLICANT
and
ROBIN GRIEVE CAMPBELL N.O.
FIRST RESPONDENT
MELISSA FOURIE N.O.
SECOND RESPONDENT
SORAYA DANIELS THIRD
RESPONDENT
ADIELAH JAKOET FOURTH
RESPONDENT
SHAHIEDA MANUEL FIFTH
RESPONDENT
MOGAMAT SHARIEF MANUEL SIXTH
RESPONDENT
SARAH DANIELS SEVENTH
RESPONDENT
MINISTER OF JUSTICE
EIGHTH RESPONDENT
REGISTRAR OF DEEDS NINTH
RESPONDENT
MASTER OF THE HIGH
COURT TENTH RESPONDENT
JUDGMENT DELIVERED ON
1 SEPTEMBER 2003
BINNS-WARD AJ:
Introduction
In the principal application, the applicant sought the following
relief (I quote from the notice of motion):
Declaring that the Applicant
was, for the purposes of the
Intestate Succession Act, 81 of 1987
,
the spouse of Mogamat Amien Daniels at the time of his death and is
an heir in the Estate of the Late Mogamat Amien Daniels
In
the alternative to paragraph 1 above
Declaring that the omission in
Section 1(4)
of the
Intestate Succession Act, 81 of 1987
, of the
following definition is unconstitutional and invalid:
“ ‘
spouse’
shall include a husband or wife married in terms of Muslim rites in a
de
facto
monogamous
union
”
Declaring that
Section 1(4)
of
the
Intestate Succession Act, 81 of 1987
, shall be read as though
it included the following paragraph after paragraph (f):
“
(g) “
‘spouse’
shall include a husband or wife married in terms of Muslim rites in a
de facto
monogamous union
”.
Declaring that the orders in
paragraphs 2.1 and 2.2 above shall have no effect on the validity
of any acts performed in respect
of the administration of an
Intestate Estate that had been finally wound up by the date of this
order
Declaring that the Applicant is
for the purposes of the Maintenance of Surviving Spouses Act, 27 of
1990, the survivor of Mogamat
Amien Daniels and is entitled to lodge
a claim for maintenance in the Estate of the Late Mogamat Amien
Daniels and to have such
claim determined by the First Respondent.
In
the alternative to paragraph 3 above
Declaring that the omission
from the definition of ‘
survivor
’
in Section 1 of the Maintenance of Surviving Spouses Act, 27 of
1990, of the words “
and
includes the surviving husband or wife of a
de
facto
monogamous union solemnized in accordance with Muslim rites
”
at the end of the existing definition is unconstitutional and
invalid.
Declaring that the definition
of ‘survivor’ in Section 1 of the Maintenance of Surviving
Spouses Act, 27 of 1990, is to be
read as if it included the
following words after the words “
dissolved
by death
”:
“
and includes the surviving
husband or wife of a
de
facto
monogamous union solemnized in accordance with Muslim rites
”.
The
applicant had been married to the late Mogamat Amien Daniels
according to Muslim rites in a monogamous union until the latter’s
death in November 1994. The applicant’s husband died intestate.
The first and second respondents, who were the only parties to
actively oppose the application
1
,
are respectively the executors of the estates of the applicant’s
late husband and a deceased son of the latter by a previous
marriage. They have refused to recognise the applicant for
inheritance and maintenance purposes as the surviving spouse of the
late M.A. Daniels within the meaning of the relevant provisions of
the
Intestate Succession Act, 1987
and the Maintenance of Surviving
Spouses Act, 1990.
The circumstances which led to the institution of the principal
application have been described extensively in the detailed and
closely reasoned judgment handed down on 24 June 2003 by van Heerden
J. It is unnecessary to retraverse them. Suffice it to say
that the
facts provide a vivid illustration of the serious hardships and
gravely unjust consequences which have arisen and continue
to occur
as result of an historically entrenched approach against the
recognition for legal purposes of Muslim marriages. The creative
and
progressive approach manifested in the judgments in
Ryland v
Edros
1997 (2) SA 690
(C)
and
Amod v Multilateral Motor
Vehicle Accidents Fund (Commission for Gender Equality intervening)
1999 (4) SA 1319
(SCA)
, both of which are discussed in some
detail in van Heerden J’s judgment in the principal case, go to
show how some of the hardship
and injustice could have been avoided
had a more intuitively just approach informed some earlier decisions
of the superior courts.
With the advantage of a current perspective,
one realises that some of the earlier decisions were unfortunately
the product of
the ethos which prevailed at the time they were made;
during a period when the diversity of South African society and the
need
for our legal system to develop in a manner to cater for it to
went effectively unacknowledged.
Van Heerden J made an order in terms of paragraphs 2 and 4 of the
notice of motion. Although no order was made refusing the relief
sought in terms of paragraphs 1 and 3 of the notice of motion, it is
clear from the learned judge’s reasons for judgment that
she
concluded, albeit ‘with considerable reluctance’, that the
applicant was not entitled in law to the declaratory relief
sought
in those paragraphs.
In terms of s 172(2)(a) of the Constitution, this court’s orders
concerning the constitutional invalidity of the statutory provisions
in issue have no force unless they are confirmed by the
Constitutional Court.
The applicant has indicated that she intends to apply in terms of s
172(2)(d) of the Constitution for the necessary confirmation.
The
applicant will also seek leave from the Constitutional Court to
appeal directly to that court against the refusal of the relief
sought by her in terms of paragraphs 1 and 3 of her notice of
motion. The appeal, if it is permitted, will be prosecuted only if
the Constitutional Court refuses to make the confirmatory orders. It
makes no practical difference to the applicant whether she
obtains
final relief in terms of paragraphs 1 and 3, or paragraphs 2 and 4
of her notice of motion. Her concern is, however, that
the
Constitutional Court might refuse to confirm the constitutional
invalidity orders on the grounds that upon a proper construction
of
the statutory provisions the applicant is a
spouse
and a
survivor
within the contemplation of the two statutes. The
applicant fears that in that eventuality, she may be left with no
relief at all.
Whether the applicant’s concern gives rise to a
valid basis for this application is a question I shall address
shortly.
In terms of rule 18(2) of the Rules of the Constitutional Court, the
applicant requires a certificate from this court certifying
that it
is in the interests of justice that her conditional appeal be
brought directly to the Constitutional Court and that there
is
reason to believe that the Constitutional Court may give leave to
the applicant to note the appeal.
The applicant was required in terms of the provisions of
Constitutional Court rule 18(2) to make application on notice of
motion
to this court for the necessary certificate in terms of rule
18(6). In the absence of van Heerden J, consequent upon her
appointment
as an acting judge of appeal in the Supreme Court of
Appeal (‘SCA’), the application was heard by me.
Condonation for non-compliance with the Rule
Rule 18(2) provides that any application for a certificate in
respect of a direct appeal must be made within 15 days of the
decision
sought to be taken on appeal. The application in this
matter was filed on 28 July 2003, some 24 days after the date of the
judgment
in the principal application. Until I raised the point with
applicant’s counsel during argument, the applicant’s legal
representatives
were unaware that the application was out of time.
The explanation I received from the bar was that the applicant’s
attorney
had overlooked the time limit. Mr
Chaskalson
, who
appeared for the applicant, requested condonation of the
non-compliance with the prescribed time limit
There is no express power afforded to this court in terms of the
Constitutional Court rules to condone non-compliance with the
rules.
The existence of the power is, however, a question that has been
considered before. In
Minister of Home Affairs and Others v
Dawood and Another, Minister of Home Affairs and Others v Shalabi
and Another, Minister of
Home Affairs and Others v Thomas and
Another
2000 (1) SA 1074
(C)
at 1081B-1082E, van Heerden AJ (as
she then was) held that a High Court hearing an application in terms
of rule 18(2) has the inherent
power to condone non-compliance with
the prescribed time limit. I concur in that opinion, but I would,
with respect, formulate
the reason for and the extent of the power
somewhat differently.
An application in terms of rule 18(2) is analogous in material
respects to an application for leave to appeal from a decision of
the High Court either to a Full Bench or to the SCA. The similarity
in the procedures should, however, not obscure the critical
differences that distinguish them. In the conventional application
for leave to appeal, the High Court’s decision to grant leave
is
finally determinative of the applicant’s right to appeal. A
positive certificate in terms of rule 18(2) on the other hand
does
not determine the applicant’s right to appeal. It is merely
advisory in nature. The certificate is intended to assist the
Constitutional Court in deciding the application for permission to
appeal to it directly
2
.
This application is merely the first part of a two-stage integral
process in terms of the Rules of the Constitutional Court. The
application to this court required in terms of Constitutional Court
rule 18(2) is therefore a procedural requirement of the
Constitutional
Court rather than of this court.
The characterisation of the procedure may be demonstrated by posing
the question what would happen if this court were to refuse
the
application for condonation. Would that put an end to the
applicant’s application in terms of rule 18? I think not. The

applicant in that situation could apply to the Constitutional Court
for relief in terms of Constitutional Court rule 31. In doing
so she
would be applying for procedural relief in terms of the Rules of the
Constitutional Court; she would not be appealing against
this
court’s refusal of her application for condonation.
I find further support for my view that rule 18 procedures are not
properly characterised as procedures of this court in the exercise
by the Constitutional Court of a power in terms of Constitutional
Court rule 31 to dispose altogether, in appropriate circumstances,
with the necessity for an intending appellant to apply for a
certificate in terms of rule 18(6). See
Mohamed and Another v
President of the Republic of South Africa and Others (Society for
the Abolition of the Death Penalty in South
Africa and Another
Intervening)
[2001] ZACC 18
;
2001 (3) SA 893
(CC)
at paragraph [6], footnote 9.
The somewhat unusual occurrence of a procedural provision in the
rules of one court providing for a process in another is explained
in this particular instance by the provisions of s 167(6) of the
Constitution
3
.
It would be impractical and contrary to the efficient administration
of justice to require condonation applications such as the
one
required in this case to be heard, at least initially, by the
Constitutional Court. The implication of a power in this court
to
grant condonation provisionally and subject to the confirmation of
the Constitutional Court in the context of any subsequent
application in terms of rule 18(7) would seem to be the appropriate
way to reconcile the practical exigencies with the fact that
it is
the procedures of the Constitutional Court rather than this court
that are being regulated. It seems to me therefore that
any
condonation granted by a High Court for non-compliance with sub-rule
(2) probably requires the endorsement of the Constitutional
Court
itself as part of the application in terms of sub-rule (7).
In provisionally granting condonation this court would be assuming a
power necessarily incidental in the interests of justice,
rather
than regulating its own process
4
.
I therefore consider that it would be proper for a party which has
obtained condonation from a High Court for its non-compliance
with
any requirement of rule 18(2) to apply in any application in terms
of rule 18(7) to the Constitutional Court for an endorsement
or
confirmation of such condonation.
. No prejudice was caused by the 9 day delay and Ms
Bawa
, who
appeared for first and second respondents’ did not oppose
condonation of the late filing of the application
5
.
In the circumstances, the applicant’s non-compliance with the
prescribed time limit was condoned. The provisional nature of
such
condonation follows on what has been said in the preceding
paragraphs.
The necessity, in the circumstances postulated by the applicant,
for any appeal, at all
As pointed out, the applicant makes this application because she is
concerned that the Constitutional Court might refuse to grant
a
confirmatory order in terms of s 172(2) of the Constitution on the
grounds that the applicant is a
spouse
or a
survivor
within the meaning of the two statutes, as currently worded. That
narrow basis is the only ground upon which it is alleged that
the
applicant needs to have available to her the alternative remedy of
an appeal.
I doubt whether a right of appeal is necessary in the circumstances
postulated by the applicant. In my view, should the Constitutional
Court decide to refuse to confirm the orders of constitutional
invalidity made by this court on the grounds that the proper
construction
of the statutes allows for the applicant to be
recognized as a
spouse
or a
survivor
for their
respective purposes, the reasoning of the Court in support of any
such conclusion would constitute a definitive interpretation
of the
statutes. By ‘definitive’, I mean to express the notion of a
final and binding determination. I consider the description
appropriate for two reasons. Firstly, having regard to the status of
the Court, jointly with the SCA, as the highest court in the
land;
and secondly, on the basis that the situation postulated by the
applicant’s application would necessarily entail the Court’s
finding being the
ratio decidendi
for the Court’s negative
decision of the s 172 application.
The Court’s
ratio decidendi
in any judgment of the nature
postulated by the applicant’s application for conditional leave to
appeal would have the force
of law. Cf.
Fellner v Minister of the
Interior
1954 (4) SA 523
(A)
at 533A, 537A - E, 542E–G. As
such, even if not reflected in an order of the Court, the reasons
would bind not only the parties
to the principal application, but
also anybody else in respect of whom the provisions of the statutes
might apply currently, or
in the future.
The applicant did not seek consequential mandatory interdictory
relief in the principal application. In the event of any of the
respondents failing or refusing to administer the deceased estates
consistently with the
ratio decidendi
of any judgment of the
Constitutional Court determining that a person in the applicant’s
situation is a
spouse
or
survivor
for the purposes of
the two statutes in issue, any court subsequently approached by the
applicant for appropriate mandatory relief
would be bound to grant
it to her. There is therefore no valid basis for the applicant’s
concern that, in the circumstances postulated
for the purposes of
her application for leave to appeal, absent declaratory orders made
on appeal in terms of paragraphs 1 and
3 of her notice of motion,
she would forfeit any right to have the estates administered
consonantly with the
ratio decidendi
of a judgment by the
Constitutional Court refusing her application in terms of s 172(2)
of the Constitution.
In the result, had the decision to grant leave to appeal been within
my province, I would have refused it as being unnecessary
in the
interests of justice in this case. However, as the function of this
court is only to give a certificate (which can be positive
or
negative, or partly positive and partly negative), and therefore
essentially advisory in nature, it seems appropriate nevertheless
to
address the criteria to be dealt with in terms of rule 18(2), in
case the Constitutional Court does not agree with my view that
an
appeal on the basis postulated by the applicant is unnecessary.
Can it be said that this Court made a decision that is appealable?
As remarked in paragraph 4, above, van Heerden J did not make an
order refusing relief in terms of paragraphs 1 and 3 of the notice
of motion. Nevertheless, as I remarked earlier, it is clear from the
reasons for judgment that the learned judge decided against
the
applicant’s entitlement to the relief sought in terms of those
paragraphs. It is now firmly established that, for the purpose
of
Constitutional Court rule 18, ‘decision’ has a wider meaning
than ‘order’
6
.
On that basis, I am therefore satisfied that this court made a
‘decision’ declining to grant relief in terms of paragraphs
1
and 3 of the notice of motion and that such decision is appealable,
subject to the Constitutional Court being satisfied that
it is in
the interests of justice to entertain the appeal.
Would the intended appeal raise a constitutional matter of
substance ?
Mr
Chaskalson
submitted that the issues raised by the relief
sought in terms of paragraphs 1 and 3 of the notice of motion in the
principal application
were ‘constitutional matters’ because the
determination of the disputed construction of the statutory
provisions in issue entails
the application of the principles of
interpretation enjoined in
terms of s 35(2) and/or s 35(3) of the Interim Constitution
7
.
It was the applicant’s case that a restrictive construction would
result in unfair discrimination against the surviving spouses
of
Muslim marriages on grounds of religion, culture and marital status.
In the circumstances, I accept that the characterisation
of the
interpretation question as a ‘constitutional matter’ is correct
8
.
The matter is one of ‘substance’ because a determination of the
interpretation of the statutory provisions potentially will
affect,
in a very material way, the position of a significant number of
persons in a community which is an important constituent
in our
diverse society.
Accordingly, if the Constitutional Court could be persuaded that the
words
spouse
and
survivor
in the two statutes do
include parties to marriages in terms of Muslim rites in
de facto
monogamous marital relationships a ruling to that effect would
appear to be desirable.
Is the evidence sufficient to enable the Constitutional Court to
deal with and dispose of the matter without the need to refer the
case back to this court for further evidence?
The connotation of the word ‘spouse’, if
generally
extended beyond a partner in a marriage solemnised in accordance
with the provisions of the Marriage Act, 25 of 1961, may have
very
wide repercussions. In
Fourie and Another v Minister of Home
Affairs and Another
(CCT 25/03 -judgment dated 31 July 2003),
the applicants, who are partners in a permanent same sex
relationship, sought an order
directing the first respondent to
register their union as a marriage in terms of the Act. The
Transvaal High Court refused the
application and thereafter gave a
negative certificate in terms of rule 18(6) in the subsequent
application for leave to appeal
directly to the Constitutional
Court. The latter Court dismissed the application for leave to
appeal directly to it. In its reasons,
the Court pointed out
9
that
there
are at least 44 Acts of Parliament on the statute book in which
reference is made to ‘husband’ and/or ‘wife’, either
in the
body of the Act or in the regulations to the Act,
and held:
‘
This
appeal is likely to raise complex and important questions of the
legal conformity of our common law and statutory rules of marriage
in
the light of our Constitution and its resultant jurisprudence.
Marriage and its legal consequences sit at the heart of the common
law of persons, family and succession and of the statutory scheme of
the Marriage Act. Moreover marriage touches on many other aspects
of
law, including labour law, insurance and tax. These issues are of
importance not only to the applicants and the gay and lesbian
community but also to society at large. While considerations of
saving costs, and of “an early and definitive decision of the
disputed issues” are in themselves weighty, they should not oust
the important need for the common law, read in the light of the
applicable statutes, to develop coherently and harmoniously within
our constitutional context. The views of the SCA on matters that
arise in the appeal are of considerable importance. The nature of
the dispute raised by the appeal is, as the High Court correctly
held
in issuing a negative rule 18(2) certificate, pre-eminently suited to
be considered first by the SCA.’
10
Of even more immediate pertinence in the present matter, in its
recent report on Islamic Marriages and Related Matters, the South
African Law Reform Commission (‘SALRC’), having proposed the
following amendments to the statutes in issue in the present case:
‘
Section 1 of the Intestate
Succession Act, 1987 (Act No. 81 of 1987) is hereby amended by the
addition to subsection (4) of the following
paragraph:
“
spouse” shall include a
spouse of an Islamic marriage recognised in terms of the Islamic
Marriages Act, 20.. , and shall otherwise
include the spouse of a
deceased person in a union recognised as a marriage in accordance
with the tenets of any religion: Provided
that in the event of a
deceased man being survived by more than one spouse, the following
shall apply -
(i) for
the purposes of subsection (1)(c), such surviving spouse shall
inherit the intestate estate in equal shares;
(ii) for
the purposes of subsection (1)(c), such surviving spouses shall each
inherit a child’s share of the intestate estate or
so much of the
intestate estate in equal shares as does not exceed in value the
amount so fixed as contemplated in this section.”
Section
1 of the Maintenance of Surviving Spouses Act, 1990 (Act No. 27 of
1990) is hereby amended by the insertion after the definition
of
“survivor” of the following definition:
“
Marriage”
shall include an Islamic marriage recognised in terms of the Islamic
Marriages Act, 20.. , and shall otherwise include
a union recognised
as a marriage in accordance with the tenets of any religion.” ’,
went on to note a measure of opposition to the proposed amendments
from parts of the Muslim community. The opposition was based on
the
inconsistency between the proposals and the Islamic law of
succession, which, as appears from the evidence in the present case,
provides that a widow inherits one eighth of her husband’s estate
on intestate succession. At paragraph 3.304 of the report, the
SALRC
‘
noted and agree
[d]
with the submission to the effect
that the Islamic law of succession should apply, in the case of
Muslim persons dying intestate.
For the time being, the Commission
decided to provide interim relief by broadening the definition of
“spouse” in the
Intestate Succession Act, to
ameliorate the
plight of spouses in Muslim marriages. The Commission, however,
agrees that there should be a proper but separate
investigation into
the recognition and application of the Islamic law of succession
within the existing Constitutional framework,
thereby providing
substantive relief in this regard. Parties are free to leave a will
in terms of which their estates will devolve
according to Islamic
law.
’
When I put these considerations to Mr
Chaskalson
, in
particular the further investigation proposed by the SALRC, and
questioned whether a wider investigation involving further
evidence
might not be indicated, he submitted that the position in the
present matter was distinguishable. The question here does
not
involve developing the common law as would be necessary to hold that
persons of the same sex can validly be married to each
other.
Counsel pointed out that men and women married in accordance with
Muslim rights are generally accepted in South Africa as
spouses, at
least in the colloquial, if not always in the statutorily ordained
senses of the word. This is undoubtedly so. Nor
do the issues raised
by paragraphs 1 and 3 of the notice of motion entail deciding
whether as a matter of policy the Islamic law
of intestate
succession should apply to persons who elect to have that system
govern the consequences of their marriage (the apparent
object of
the further investigation recommended by the SALRC). They go rather
to whether the words
spouse
and
survivor
in the
Intestate Succession Act and
the Maintenance of Surviving Spouses
Act, respectively, are capable of being read in conformity with the
Constitution to carry
the meanings for which the applicant contends.
I agree that the issue is properly amenable to being defined in the
manner contended by applicant’s counsel. I am of the opinion
that
if the issue is so defined the necessary determination of the
interpretation questions will not require a general extension
of the
notion of who may be a ‘spouse’ in common law, nor will it
involve deciding the meaning of the relevant words in the
context of
other statutes. On that basis, the evidence is sufficient, in my
view, for the Constitutional Court to dispose of the
intended
appeal, should it agree to hear it. In such circumstances, it would
also be interests of justice having regard to time
and costs
considerations (the winding up of the applicant’s husband’s
apparently simple deceased estate has been delayed for
nigh on ten
years already) for the matter to be disposed of in the manner sought
by the applicant.
Is there a reasonable prospect that the Constitutional Court will
reverse or materially alter the judgment if permission to grant
the
appeal is given?
This court concluded that the word ‘spouse’ in the context of
the two statutes in issue could not properly be construed to
include
persons party to marriages according to Muslim rites which had not
been registered in terms of the Marriage Act. Van Heerden
J was
mindful of the limits of the principle of reading in conformity. The
principle does not permit an unduly strained interpretation
of the
language used by the legislature. However, inherent in the nature of
the limit to the application of the principle is the
exercise of
determining just where the bounds of linguistic flexibility fall to
be drawn. In that context the scope for legitimate
difference of
judicial opinion will often be very real.
The considerations which weighed particularly with this court in
reaching the conclusion that, in the absence of an appropriate
deeming or interpretative provision, ‘spouse’ had to be given
‘its traditional limited meaning’ were the history of recent
amendments to a variety of statutes introducing provisions which
expressly accommodated Muslim marriages as marriages for the

purposes of the individual statutes concerned, and also the approach
manifested in two judgments of the Constitutional Court in
which the
interpretation of ‘spouse’ arose for consideration. (These
judgments were
National Coalition for Gay and Lesbian Equality &
Others v Minister of Home Affairs & Others
2000 (2) SA 1
(CC)
and
Satchwell v President of the Republic of South Africa &
Another
2002 (6) SA 1
(CC).
In those matters the question was
the extension of the meaning of the word ‘spouse’ to include
parties in permanent same sex
partnerships. The context was the
provisions of two different statutes, both unrelated to those in
issue in this case.)
Van Heerden J’s reasoning in these respects would find support in
the subsequent judgment in
Fourie’s
case, mentioned
earlier, and in the amendments, described above, proposed by the
SALRC to the
Intestate Succession Act and
the Maintenance of
Surviving Spouses Act as ‘a measure of interim relief’.
The question in this application is not whether this court’s
approach on the proper interpretation of the words in issue was
right or wrong, but rather whether there is a reasonable prospect
11
that another court might be persuaded on appeal that the word
‘spouse’ could be construed contextually as contended on behalf
of the applicant. Accordingly, it should be clearly understood that
in what follows I should not be mistaken to be in any way signifying
disagreement with the relevant part of van Heerden J’s judgment.
The reasoning set out hereafter is merely intended to show why
I
have concluded that there is a reasonable prospect that another
court
might
in an appeal come to a different conclusion to
that reached by this court in respect of the applicant’s right to
declaratory
relief in terms of paragraphs 1 and 3 of the notice of
motion.
Context is a critical criterion in statutory interpretation
12
.
Therefore, it does not necessarily follow that because the
legislature has deemed it necessary or desirable in certain statutes
to make express provision for the recognition of Muslim marriages
for the purposes of those enactments the same considerations
necessarily apply in the context of the statutes in issue in this
case. I have little doubt, for example, that there could be no
valid
basis to construe the word ‘spouse’ in s 35(2)(f) of the
Constitution as not including a party to a Muslim marriage,
even if
the words ‘or partner’ were not conjoined thereto. It would be
subversive of the policy rationale for the provision
to interpret it
more restrictively. The apparent policy underlying the relevant
provisions of the two statutes under consideration
in this case is
to promote the welfare and economic self-sufficiency of surviving
spouses. The policy arguably also has attendant
objectives bearing
on more centrally personal rights like the right to human dignity.
These considerations
might
reasonably be considered by the
Constitutional Court sufficient to warrant a less restrictive
construction of the words than this
court considered could properly
be accorded.
It is arguable that the recently enacted deeming or interpretative
provisions introduced in a number of statutes should be
characterised
as merely expositionary in character. The purpose of
expositionary legislation is not to alter the effect of an existing
statutory,
but merely to express it more clearly and to put its
meaning and effect beyond debate
13
.
That
might
be held to explain some of the recent statutory
amendments to which reference was made in the judgment in the
principal application.
I have referred above to the distinction Mr
Chaskalson
drew
between the question posed in the present matter and the issue of
whether same sex partners can properly or feasibly be characterised
as spouses. His argument does not lack cogency.
In the circumstances, if the Constitutional Court were persuaded to
entertain it, I consider that it would be fair to allow that
the
intended appeal would enjoy a reasonable prospect of success.
For these reasons a certificate (which is partly negative and partly
positive) will issue in the terms set out below.
Conditional Leave to appeal to the Supreme Court of Appeal
I raised with Mr
Chaskalson
whether the applicant would want
leave to appeal to the Supreme Court of Appeal in the event that the
Constitutional Court refused
the application in terms of s 172(2) of
the Constitution on grounds other that postulated in this
application. Mr
Chaskalson
said that such an application had
not been made because the applicant did not want at this stage to
incur the costs of complying
with the requirements of the SCA after
leave to appeal to that court had been granted. When I pointed out
that this court could
grant leave to appeal to the SCA conditionally
together with a direction that the effectiveness of the order be
suspended until
after the completion of the intended proceedings
before the Constitutional Court
14
,
applicant’s counsel applied orally for such leave on the
contingent basis postulated by me. This application was not opposed
by Ms
Bawa
.
Having regard to the narrow basis on which the application for leave
to appeal has been brought and the considerations discussed
at
paragraphs [18]-[22], above, I do not think that it would be
appropriate on the papers before me to grant conditional leave
to
appeal to the SCA at this stage. Dependent on the outcome of the
proceedings in the Constitutional Court the applicant may desire
leave to appeal to the Full Bench or to the SCA on grounds other
than those relied on the present application. To allow for that
contingency, I shall give a direction that the applicant shall be
permitted, if so advised, to make application to this court for
such
leave within 15 days of the completion of proceedings in the
Constitutional Court.
Orders
Accordingly, the following orders are made:
The applicant’s non-compliance with the time limit prescribed in
terms of rule 18(2) of the Rules of the Constitutional Court
is
provisionally condoned;
A certificate is issued in terms of rule 18(6) of the Rules of the
Constitutional Court in the following terms:
Subject to the (negative) opinion expressed in paragraphs [18]-[22]
of the accompanying reasons, and if permission to bring the
appeal
is given, it is certified to be the opinion of this court that it
would be in the interests of justice for the intended
appeal to be
brought directly to the Constitutional Court conditionally on the
dismissal by that Court of the application for relevant
confirmatory
orders in terms of s 172(2) of the Constitution.
Subject to the (negative) opinion expressed in paragraphs [18]-[22]
of the accompanying reasons, there is reason to believe that
the
Constitutional Court may give the applicant leave to appeal
conditionally, directly to that Court.
The constitutional matters which are the subject of the intended
conditional appeal are matters of substance in respect of which,
in
the circumstances postulated by the application for this
certificate, a ruling by the Constitutional Court is desirable.
The evidence in the proceedings is sufficient to enable the
Constitutional Court to deal with and dispose of the matter without
having to refer the matter back to this court for further evidence.
There is a reasonable prospect, if permission to bring the appeal is
given and the condition upon which it is sought to appeal
is
satisfied, that the Constitutional Court may reverse this court’s
decision that the applicant was not entitled to relief in
terms of
paragraphs 1 and 3 of her notice of motion.
3. The applicant is given leave to apply to this court for leave to
appeal to the Supreme Court of Appeal or to the Full Bench, if
necessary, and if so advised, within 15 days of the completion of the
intended proceedings in the Constitutional Court
4. There
will be no order as to costs.
A.G. BINNS-WARD
1
The
eighth respondent, being the member of the national Cabinet
responsible for the Administration of the
Intestate Succession Act,
81 of 1987
, and the Maintenance of Surviving Spouses Act, 27 of
1990, initially indicated an intention to oppose the application,
but subsequently
decided to abide the decision of the court.
2
Mistry
v Interim Medical and Dental Council of South Africa and Others
1998
(4) SA 1127
(CC) at paras [4]-[7].
3
‘
National
legislation or the rules of the Constitutional Court must allow a
person, when it is in the interests of justice and with
leave of the
Constitutional Court-
(a) to
bring a matter directly to the Constitutional Court; or
(b) to
appeal directly to the Constitutional Court from any other court.
’
4
Cf.
s 173 of the Constitution.
5
The
first and second respondents abided the decision of this court in
respect of the rule 18(2) application.
6
See
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) at para
[8]
and
the authority cited in fn 7
7
Section
35(2) and (3) provided:
(2)
No
law which limits any of the rights entrenched in this Chapter, shall
be constitutionally invalid solely by reason of the fact
that the
wording used prima facie exceeds the limits imposed in this Chapter,
provided such a law is reasonably capable of a more
restricted
interpretation which does not exceed such limits, in which event
such law shall be construed as having a meaning in
accordance with
the said more restricted interpretation.
(3)
In
the interpretation of any law and the application and development of
the common law and customary law, a court shall have due
regard to
the spirit, purport and objects of this Chapter.
8
Cf
Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai
Motor
Distributors (Pty) Ltd v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC) at
paras [21]-[26]. (The dicta of Langa DP were uttered in respect of
the effect of s 39(2) of the 1996 Constitution, but
they apply
equally in the context of s 35 of the Interim Constitution; cf.
Govender v Minister of Safety and Security
2001 (4) SA 273
(SCA) at
para [10].)
9
In
para [12], at fn 19
10
At
para [12]
11
In
the sense of that expression as defined in Rex v Ngubane and Others
1945 AD 185
at 187.
12
See
e.g. Jaga v Dönges NO and Another; Bhana v Dönges NO
1950 (4) SA
653
(A) at 662G-664H
13
Cf.
e.g. National Education Health and Allied Workers Union v University
of Cape Town and Others
2003 (3) SA 1
(CC) at para [66]; Patel v
Minister of the Interior and Another
1955 (2) SA 485
(A) at 493A-F.
14
That
course was followed in Dawood’s case (cited in para [10], above);
see paragraph 3 of the order made in that matter and the
reasons for
judgment at 1086H-1087A and the other cases referred to there.