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[2006] ZACC 25
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D[....] v S[....] (CCT18/06) [2006] ZACC 25; 2006 (8) BCLR 869 (CC) (23 May 2006)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 18/06
N[....]
D[….]
Applicant
versus
N[....]
A[....] S[....]
Respondent
Delivered
on: 23 May 2006
JUDGMENT
THE
COURT:
[1]
This is an
application for leave to appeal against a judgment and order of the
Cape High Court made on 5 February 2004. On 20 July
2004 the Supreme
Court of Appeal refused without reasons an application for leave to
appeal against the decision of the Cape High
Court. On 5 April 2006,
twenty months later, the applicant lodged her request for leave to
appeal to this Court. She also applied
for an order condoning her
non-compliance with the time periods for noting an appeal prescribed
by the Rules of this Court.
[2]
The applicant
and the respondent were married to each other in 1974 in terms of
Muslim personal law. At no stage was a civil marriage
recognised by
the common law of South Africa concluded. The marriage subsisted
until 2002, when the respondent issued the applicant
with what is
termed an “irrevocable talaq”, an act or deed that
confirms divorce in Muslim personal law.
[3]
Later that
year the applicant instituted action proceedings in the Cape High
Court for an order declaring that at common law a universal
partnership had existed between herself and the respondent during the
subsistence of their Muslim marriage, and that accordingly
she was
entitled to a half share of property held by him. She also claimed
rehabilitative maintenance for twelve months. The High
Court held
that she had not established that a tacit universal partnership had
existed during the marriage, and noted that the
claim for
rehabilitative maintenance had not been pursued.
[4]
The applicant
acknowledges that in the High Court the constitutional issues
concerning the recognition of Muslim marriages were
not pleaded and
that the issue of the consequences of the termination of a Muslim
marriage was therefore also not raised in the
pleadings. The
applicant contends, however, that the High Court should on its own
initiative have given consideration to these
questions and developed
the common law in the light of the equality and dignity provisions of
the Constitution. Had it done so,
she avers, it would have enlarged
the concept of tacit universal partnership to embrace her situation
as a divorced Muslim wife.
[5]
The issues
underlying the application, and in particular questions concerning
the recognition of Muslim marriages and the consequences
of divorce,
are important and complex, and touch on a great range of diverse
interests. As indicated above, they were not raised
on the pleadings
or argued in this case. The High Court correctly dealt with the
matter according to the pleadings, the evidence
before it and the
argument presented. The result is that there are no prospects of the
appeal from the High Court judgment being
successful.
[6]
Nor is it a
matter in which direct access to this Court on the broader issues
should be granted. This Court had frequently stated
that save for
exceptional circumstances it should not be the court of first
instance in dealing with a matter of this kind. A large
number of
interested persons and bodies, such as the relevant government
Minister, religious organisations and the Commission for
Gender
Equality, should be given an opportunity to be heard if the broader
issues are to be canvassed.
[7]
The above
considerations are compounded by the extremely lengthy delay in
noting the application. Accordingly we are of the opinion
that it
would not be in the interests of justice for the application for
leave to appeal to be granted.
[8]
This is not
an appropriate matter for costs to be awarded.
Order:
The
application for leave to appeal is refused.
Langa CJ,
Moseneke DCJ, Madala J, Mokgoro J, Nkabinde J, O’Regan J, Sachs
J, Skweyiya J, Van der Westhuizen J and Yacoob J.