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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN
Case no: 17786/2024
In the matter between:
DR I[...] J[...] (born S[...]) Applicant / Defendant
and
T[...] I[...] J[...] Respondent / Plaintiff
Heard on: 5 May 2025
Ordered on: 29 August 2025
Reasons Delivered on: 29 September 2025 (by electronic mail to the parties)
REASONS FOR THE ORDER ISSUED ON 29 AUGUST 2025
KHOZA, AJ
Introduction
[1] On 29 August 2025, I dismissed the defendant’s exception, directed her to
deliver a plea within 10 days, and ordered that the costs of the exception be costs in
the cause. These are the reasons for that order.
Background
[2] This matter concerns an exception raised by the def endant to the plaintiff’s
particulars of claim in divorce proceedings. The defendant contended that the
particulars of claim lack the necessary averments to sustain a cause of action under
the Divorce Act 70 of 1979, as amended by the Divorce Amendment Act 1 of 2024
(“the Amendment Act”).
[3] The essential facts, as pleaded and accepted for purposes of the exception,
are not in dispute. The parties were married in accordance with Islamic rites on 25
January 2009. That marriage was terminated by the plainti ff by pronouncing a talaq
in accordance with Islamic tenets. He thereafter instituted proceedings under the
Divorce Act in August 2024.
[4] The Amendment Act came into operation on 14 May 2024. Section 6 of the
Amendment Act provides:
This Act applies to all subsisting Muslim marriages, including a Muslim marriage:
(a) which was terminated or dissolved in accordance with the tenets of Is lam
and where legal proceedings for the dissolution of the said Muslim
marriage in terms of the Divorce Act 197 0 (Act No. 70 of 1979) have been
instituted but not yet finalised; and
(b) Which subsisted as at 15 December 2014.
[5] The defendant contends that, properly construed, section 6 applies only to
proceedings that were already instituted before the commencement of the
Amendment Act on 14 May 2024. Because the plaintiff issued summons in August
2024, she submits that his claim falls outside the scope of the statute and is bad in
law.
Test on exception
[6] The test on exception is exacting. The question is whether, on all possible
readings of the facts pleaded, no cause of action can be made out. It is for the
excipient to satisfy the court that the legal conclusion for which the plaintiff contends
cannot be supported on any reasonable interpretation of the pleaded facts (Trustees
for the Time Being of the Children’s Resource Centre Trust and Others v Pioneer
Food (Pty) Ltd and Others [2012] ZASCA 182; 2013 (2) SA 213 (SCA) para 36).
[7] In Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA
593 (S CA), Wallis JA emphasised that statutory interpretation requires a unitary
exercise: text, context and purpose must all be considered. It is not a rigid reliance
on textual formalism, but a contextual and purposive search for meaning.
[8] The Const itutional Court in University of Johannesburg v Auckland Park
Theological Seminary 2021 (6) SA 1 (CC) reaffirmed that courts must adopt an
interpretation that is sensible and consistent with constitutional values, rather than
one that is unduly technical, unjust or undermines the statute’s evidence purpose.
[9] The interpretive question in this matter is whether section 6 of the Amendment
Act should be read as incorporating the temporal limitation contained in the
Constitutional Court’s interim order in Women’s Legal Centre Trust v President of the
Republic of South Africa and Others 2022 (5) SA 323 (CC). The defendant contends
that it should, with the result that proceedings brought after the commencement of
the Amendment Act on 14 May 2024 fall outside its ambit. The plaintiff disputes that
construction.
[10] It follows that, in exception proceedings, the defendant must demonstrate
that, on every conceivable interpretation of section 6, the plaintiff’s particulars of
claim are unsustainable. If there is even one interpretation that coheres with both the
text and purpose of the statute, the exception cannot succeed.
Analysis and finding
text and purpose of the statute, the exception cannot succeed.
Analysis and finding
[11] The plaintiff pleads facts that track the three criteria in section 6: the marriage
subsisted on 15 December 2014; i t was later dissolved in accordance with Islamic
tenets; and proceedings for its dissolution under the Divorce Act have been instituted
and are not yet finalised.
[12] The defendant’s interpretation seeks to import a temporal limitation not found
in the language of the provision, namely that proceedings had to be pending as at 14
May 2024. I am not persuaded that this construction is correct. Nothing in the text
supports such a proposition. On the Endumeni approach, words cannot be stretched
to bear a meaning they cannot reasonably sustain.
[13] The defendant further contends that section 6 must be read as incorporating
the temporal limitation contained in the Constitutional Court’s interim order in
Women’s Legal Centre Trust . That order afforded interim relief pending legislation
and confined its scope to Muslim marriages that subsisted or had been terminated
as at 15 December 2014 and in respect of which legal proceedings had already been
instituted and no t finally determined. The defendant suggests that Parliament
intended section 6 to replicate that cut-off.
[14] This implied contention is misplaced. The interim order was temporary,
designed only to bridge the gap until Parliament acted. Section 6 is the legislative
response. In enacting it, Parliament deliberately omitted the “already instituted”
requirement, thereby extending the protection more broadly. Its scope now covers all
Muslim marriages that subsisted on 15 December 2014 and were subsequently
terminated in accordance with Islamic tenets, provided proceedings under the
Divorce Act have been instituted and remain pending. The omission of the temporal
limitation is both significant and deliberate.
[15] Nor is the defendant’s construction sustainable when viewed purposively. The
Amendment Act was enacted to cure the unfair discrimination identified in Women’s
Legal Centre Trust , namely the non -recognition of Muslim marriages and its impact
on Muslim women and children. Its remedial aim is to extend pr otection to precisely
those spouses who had previously been excluded.
those spouses who had previously been excluded.
[16] To read into section 6 , a requirement that proceedings must already have
been instituted before 14 May 2024 would be to exclude the very class of persons
whom the legislature sought to protect: Muslim spouses whose marriages subsisted
at the constitutional cut-off date but who had not yet instituted proceedings. Such an
interpretation is, in the language of Auckland Park , “untenable” because it
undermines both the text and the remedial purpose of the statute.
[17] This distinction is decisive. The defendant’s interpretation effectively collapses
the two regimes into one, treating the interim order and the subsequent legislation as
if they imposed the same procedural restriction. That approach cannot be correct.
The Constitutional Court’s interim relief was temporary and necessarily limited.
Parliament, in crafting section 6, adopted a broader and more durable framework.
[18] In the absence of express wording to the co ntrary, this Court cannot import
into section 6 the “already instituted” requirement that characterised the interim
order. To do so would conflate two distinct legal instruments and disregard the
legislature’s deliberate choice to broaden the scope of protection.
[19] It is well established that remedial legislation must be interpreted generously
and purposively. As the Constitutional Court reminded us in Auckland Park , a
construction that undermines a statute’s purpose or yields unjust or insensible
results cannot be sustained. To hold that a spouse whose marriage satisfied all of
the textual requirements of section 6, but who instituted proceedings after 14 May
2024, is excluded from its scope would produce precisely such an insensible result.
[20] On the plaintiff’s pleaded facts, his marriage subsisted at the constitutional
cut-off date of 15 December 2014, it was subsequently terminated in accordance
with Islamic tenets, and he has instituted divorce proceedings which are not yet
finalised. On any reason able interpretation of section 6, those averments disclose a
cause of action.
[21] It follows that the defendant has not shown that, on every conceivable
cause of action.
[21] It follows that the defendant has not shown that, on every conceivable
interpretation of the statute, the plaintiff’s claim is unsustainable. To the contrary, his
interpretation is both textually supportable and consonant with the evident remedial
purpose of the Amendment Act. The exception must therefore fail.
Conclusion
[22] The defendant’s exception rests on importing into section 6 of the Divorce
Amendment Act a temporal limitation not found in its text. That construction is
inconsistent with the statute’s remedial purpose and with the interpretive principles
articulated in Endumeni and Auckland Park.
[23] The plaintiff’s pleaded facts, if proved, track the statutory requirements: h is
marriage subsisted on 15 December 2014, it was later terminated in accordance with
Islamic tenets, and proceedings under the Divorce Act have since been instituted
and are not yet finalised. On those averments, a cause of action is disclosed.
[24] The defendant has therefore failed to demonstrate that, on every conceivable
interpretation of section 6, the particulars of claim are bad in law. To the contrary, the
plaintiff’s construction is both plausible and consonant with the st atute’s text and
purpose.
[25] For these reasons, and as already ordered on 29 August 2025, the exception
is dismissed, and the defendant is directed to file her plea. The costs of the
exception were made costs in the cause.
___________
GSS KHOZA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the Applicant/Defendant: Adv A E Heese
Instructed by Riley Incorporated
For the Respondent/Plaintiff Self represented