SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO .: 144907/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 13 February 2025
E van der Schyff
In the matter between:
H[...] A[...] Applicant
and
N[...] A[...] Respondent
JUDGMENT
Van der Schyff J
Introduction
[1] The applicant approached the court for interim relief in terms of Rule 43 of the
Uniform Rules of Court, pending the finalisation of divorce proceedings instituted
by her.
[2] It is common cause that the parties were married in terms of Islamic Law on 25
February 2012. Three minor children were born from the marriage. The marriage
relationship between the parties broke down. The applicant, with the minor
children, left the matrimonial home in September 2023. On 18 May 2024, the
2
respondent issued the applicant with Talaaq . The applicant subsequently instituted
divorce proceedings.
Legal issue for determination
[3] The crisp and only issue to be dealt with in this judgment is whether this court has
the jurisdiction to hear a Rule 43 application in circumstances where a marriage
concluded in terms of Muslim Law was unilaterally terminated by the respondent
when he issued the applicant with Talaaq before any divorce proceedings were
instituted.
[4] The respondent raised a point in limine that the application does not fall within the
ambit of Rule 43 since, according to the respondent, the parties ’ marriage was
already di ssolved when Talaaq was issued. As a result, the respondent contends,
there is no pending divorce , and the applicant is not a ‘spouse’ as provided in Rule
43.
The parties’ respective submissions
The applicant ’s submissions
[5] The applicant proffered two main arguments in support of the contention that the
court indeed has jurisdiction to hear this Rule 43 application. The first is that the
respondent has not yet filed a plea, challenging the existence of the marriage and
the applicant’s entitlement to proceed with an action for a decree of divorce.
Counsel highlighted with reference to Zaphiriou v Zaphiriou1 that it is trite that Rule
43 finds application where the validity of a marriage or its subsistence is disputed.
The second is that the recent amendments to the Divorce Act 70 of 1979 (‘the
Divorce Act’) place this application squarely within the ambit of Rule 43.
The respondent’s submissions
1 1967 (1) SA 342 (W). Also see AM v RM 2010 (2) SA 223 (ECP) where the court held that
pronouncing a Talaaq to effect a divorce according to Muslim law was no obstacle to relief under
Rule 43 where the legality of the marriage and the legality of the Talaaq were challenged in a
pending divorce action.
3
[6] The respondent contends that the applicant does not fall within the ambit of the
definition of the term ‘spouse’ as it is used in Rule 43. The respondent contends
that the effect of the amendment of the Divorce Act is that a recognised marriage
comes about when it is created in terms of Islamic law, and it terminates when it is
ended in accordance with Islamic tenets. Counsel submitted that it could not be
argued that a marriage that comes about in terms of recognised Islamic rites can
only be ended with an order of court in terms of secular law. Rather, the position is
that an Islamic marriage ends when Talaaq is given. This process, counsel
contends, is recognised by legislation. Because the Talaaq was issued before the
divorce proceedings were instituted, the respondent’s view is that the marriage
was terminated on 18 May 2024 , and the applicant cannot rely on the Divorce Act
to dissolve a non -existent marriage.
[7] Counsel emphasised that the applicant , in the current matter, does not dispute the
validity of the Talaaq . This, she submits, distinguishes the current application fom
cases like SJ v SE2 and AM v RM.3 Counsel referred the court to Essop v
Haffejee.4 In this matter , a person in the same circumstances as the applicant was
held not to be a ‘spouse’ for the purposes of Rule 43. Unfortunately, the judgment
was handed down ex tempore , and no typed record is available. Counsel
submitted that the consequence of the amendment of the Divorce Act and the
recognition of Muslim marriages is merely that women can now approach the court
for the termination of a marriage, while it could only be terminated by a husband in
terms of Muslim law. In conclusion, it was submitted that because the applicant is
not a spouse for purposes of Rule 43, the court does not have the jurisdiction to
adjudicate the matter.
Discussion
[8] The amendments to the Divorce Act pertaining to the recognition of Muslim
marriages stand central to the main dispute between the parties. The preamble to
2 2021 (1) SA 563 (GJ).
3 2010 (2) SA 223 (ECP).
4 (2023/06743) unreported 16 October 2024.
4
the Divorce Amendment Act 1 of 2024 clearly states that purpose of the
amendments, namely to amend the Divorce Act, 1979, so as to insert a definition
for a Muslim marriage, to provide for the protection and to safeguard the interests
of dependent and minor children of a Muslim marriage, to provide for the
redistribution of assets on the dissolution of a Muslim marriage, to provide for the
forfeiture of patrimonial benefits of a Muslim marriage and to provide for matters
connected therewith.
[9] Section 6 of The Divorce Amendment Act provides as follows:
‘This Act applies to all subsisting Muslim marriages, including a
Muslim marriage -
(a) Which was terminated or dissolved in accordance with the
tenets of Islam and where legal proceedings for the
dissolution of the said Muslim marriage in terms of the
Divorce Act, 1979 (Act. No. 70 of 1979) have been instituted
but not yet finalised, and
(b) which subsisted as at 15 December 2014.’
[10] I am of the view that it is essentially section 6 of the Divorce Amendment Act that
requires interpretation. Should the section be interpreted to mean that where a
Talaaq was issued prior to divorce proceedings being instituted, there is no
marriage that stands to be dissolved in terms of the Divorce Act, or should the
section be interpreted that irrespective of the issue of a Talaaq , there is still a
marriage that stands to be dissolved in terms of the Divorce Act.
[11] After careful consideration, I am of the view that it is not necessary, and indeed
undesirable, to delve into a complex legal question that lies at the heart of the
litigation between the parties, when the court is called upon to determine
interlocutory proceedings in a Rule 43 application. To determine the
interpretational dispute that exists and the ambit of the amendments of the Divorce
Act as far as it relates to Muslim marriages require s an extensive and in -depth
interpretation of the Divorce Act and t he Divorce Amendment Act 1 of 2024. A
5
court may even feel inclined to request the appointment of an amicus curiae like
the Centre for Women’s Law. It would not do justice to the issue to determine it at
this stage of the proceedings where the respondent, who is the defendant in the
divorce action, seemingly has not yet filed a plea wherein he disputes the
existence of the alleged marriage. It is also, for the reason set out below,
unnecessary to determine the issue at this point in time , and any remarks made by
me concerning the validity of the marriage would be obiter.
[12] I disagree with the respondent’s counsel’s submission that the applicant does not
meet the definition of the term ‘spouse’ in Rule 43 and that this court subsequently
does not have the necessary jurisdiction to hear the application . I am in full
agreement with the view expressed by Trollip J in Zaphiriou v Zaphiriou.5 He
explained that Rule 43 was merely 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. Trollip J held that the word ‘spouse’ in sub -rule (1) includes not only a
person admitted to be a spouse but also one who alleges that he or she is a
spouse even where the allegation is denied. The rule applies whether the validity
of the marriage or its subsistence is disputed.
[13] In casu , the applicant clearly regards herself as a spouse. There is a pending
matrimonial action, and the court deciding on the matrimonial action will be the
correct court to pronounce on the validity of the marriage or its subsistence at that
point.
[14] In light of the context of this application, it is fair and just to both parties that costs
are costs in the cause.
ORDER
In the result, the following order is granted:
1. The point in limine is dismissed.
5 1967 (1) SA 342 (W).
6
2. The Draft Order, marked ‘X’ dated and signed by me on 12 February 2025, is
made an Order of Court.
3. The costs of this application are costs in the cause.
E van der Schyff
Judge of t he High Court
Delivered: This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
For the applicant : Adv. E. De Lange
Instructed by: Sharief & Ass ociates Inc.
For the respondent: Adv. L. De Wet
Instructed by: Farhana Ismail Attorneys
Date of the hearing: 11 February 2025
Date of judgment: 13 February 2025