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[2018] ZACC 40
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Holomisa v Holomisa and Another (CCT146/17) [2018] ZACC 40; 2019 (2) BCLR 247 (CC) (23 October 2018)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
146/17
In the matter
between:
BUKELWA NOLIZWE
HOLOMISA
Applicant
and
SANGO PATEKILE
HOLOMISA
First Respondent
MINISTER OF
JUSTICE AND
CORRECTIONAL
SERVICES
Second Respondent
Neutral citation:
Bukelwa Nolizwe Holomisa v Sango Patekile Holomisa and Another
[2018] ZACC 40
Coram:
Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ,
Khampepe J, Mhlantla J and Theron J
Judgment:
Froneman J (unanimous)
Heard on:
14
August 2018
Decided on:
23 October 2018
Summary:
Transkei
Marriage Act 21 of 1978 —
Divorce Act 70 of 1979
—Community
of Property — Rationalisation of laws — Direct Access
ORDER
The following order
is made:
1. The Minister of
Justice and Correctional Services is joined as second respondent.
2. Direct access is
granted.
3. Sub-section 7(3)
of the
Divorce Act 70 of 1979
is declared constitutionally invalid to
the extent that it excludes a spouse married out of community of
property who has not entered
into an ante-nuptial contract or an
express declaration in terms of
section 39(2)
of the now repealed
section 39 of the Transkei Marriage Act 21 of 1978, from its ambit.
4. The declaration
of constitutional invalidity is suspended for 24 (twenty-four) months
to allow Parliament to remedy this defect.
5. During the period
of suspension
section 7(3)
of the
Divorce Act 70 of 1979
must be read
so as to include the following as
section 7(3)(c):
“entered into in terms of the Transkei Marriage Act 21 of 1978,
as it existed before the repeal of section 39, without entering
into
an ante-nuptial contract or an express declaration in terms of the
repealed section 39(2) before the marriage.”
6. Leave to appeal
is granted
7. The appeal
succeeds.
8. The order of the
Supreme Court of Appeal is set aside and substituted with the
following:
“(a) The matter is referred back to the Regional Court to
determine the proprietary interests of the applicant and the first
respondent;
(b) Nothing in this order will bar any party from amending their
pleadings in relation to the determination of their proprietary
interests arising from the marriage;
(c) Costs of this appeal will be costs in the cause of determining
the proprietary interests arising from the marriage.”
9. There will be no
costs order in this Court.
JUDGMENT
FRONEMAN J (Mogoeng
CJ, Basson AJ, Cameron J, Dlodlo AJ, Goliath AJ, Khampepe J,
Mhlantla J and Theron J concurring):
Introduction
[1]
In
Khohliso
Van der Westhuizen J, writing for this
Court, remarked:
“It is rather odd that – 20 years into our constitutional
democracy – we are left with a statute book cluttered
by laws
surviving from a bygone undemocratic era remembered for the
oppression of people; the suppression of freedom; discrimination;
division; attempts to break up our country; and military
dictatorships.”
[1]
[2]
This case concerns the discriminatory oddity that women
married out of community of property under the Transkei Marriage
Act
[2]
do not enjoy the protection, on divorce, of
section 7(3)
of the
Divorce Act.
[3
]
Section 7(3)
, read with
section 7(4)
and
7
(5), empowers a court
granting a decree of divorce in respect of a marriage out of
community of property to order a redistribution
of assets where it
considers it just and equitable to do so, taking into consideration
the contribution, monetary and otherwise,
of the parties to the
marriage.
[4]
Its effect was mainly to make transfers possible that favoured
women married out of community of property.
[3]
The section addresses only those persons who were married out
of community of property
¾
(a) before the commencement of the Matrimonial Property Act
[5]
in terms of an ante-nuptial contract which excluded community of
property, profit and loss and accrual; and
(b) before the commencement of the Marriage and Matrimonial Property
Law Amendment Act
[6]
in terms of section 22(6) of the Black Administration Act.
[7]
No mention is made
of those persons married out of community of property under the
Transkei Marriage Act.
[4]
There is no dispute that this differentiation is irrational
and discriminatory. The problem is what to do about it in view
of procedural and formal hurdles. In order to understand these
some factual context is needed.
Litigation
history
[5]
The applicant and the first respondent married each other at
Mqanduli in the Transkei on 16 December 1995. The first
respondent
instituted an action for divorce in the Mthatha Regional
Court, averring that the marriage was out of community of property.
The
applicant denied this in her plea and pleaded that the
marriage was in community of property. She counterclaimed for a
divorce,
primary care of the children, maintenance for herself and
the children and division of the joint estate.
[6]
Although the matter was defended the Magistrate allowed it to
proceed in the absence of the applicant. This was done on the
basis that her attorneys had mischievously and irregularly filed a
notice of withdrawal of the set down notice and that accordingly
the
Magistrate inferred that she had received proper notice of the set
down for trial. The applicant’s attorney had
also not
attended the pre-trial conference despite notice to do so.
[7]
Before the first respondent was called to testify the
Magistrate made a ruling that the marriage was in community of
property. After
the first respondent’s evidence was led
the Magistrate granted a decree of divorce, made orders in relation
to the care of
the children and ordered division of the joint estate.
[8]
The first respondent appealed to the High Court of South
Africa Eastern Cape Local Division, Mthatha (High Court). For
different
reasons than those of the Regional Court, the High Court
nevertheless confirmed the holding that the marriage was in community
of property and the resultant order of division of the joint estate.
The appeal was thus dismissed with costs.
[8]
[9]
On further appeal to the Supreme Court of Appeal that Court
reversed this conclusion. It held that the marriage was out of
community of property. It upheld the appeal and substituted the
order of the Regional Court to the limited extent that the
order of
division of the joint estate was deleted and the applicant’s
counterclaim dismissed.
[10]
The issue relating to the constitutional validity of
section
7(3)
of the
Divorce Act was
raised for the first time, and only
in heads of argument, before the Supreme Court of Appeal. The
applicant’s contentions
in that regard received short thrift:
“However, she contended that the issue pertaining to the
matrimonial property regime of the parties had not been properly
ventilated in the Regional Court and urged this court to refer the
matter back to that court so that more evidence could be led
on this
aspect. In the alternative, Counsel submitted that
section 7(3)
of
the
Divorce Act 70 of 1979
was unconstitutional in that it did not
allow the respondent and other vulnerable women married in terms of
the Transkei Act, without
an ante-nuptial contract, to seek a
redistribution of the husband’s assets, as was afforded to
women married in terms of
section 22(6) of the Black Administration
Act 38 of 1927.
The first contention can be disposed of easily on the basis that no
purpose will be achieved by referring the matter to trial:
First,
the marriage certificate of the parties – which was not placed
before the Regional Court, and which Counsel
agreed would be placed
before the Regional Court if the matter was referred to it –
showed that the marriage was out of community
of property. Second, it
is common cause that the marriage was solemnised in Mqanduli, which
is within the territory of the erstwhile
Transkei, and the Transkei
Act was applicable at the time of the conclusion of the marriage.
The respondent in her counterclaim
agreed that the appellant
was domiciled in that area. A referral of the matter to trial
would thus not rescue her case.
The constitutional argument must also fail: It was raised for
the first time in this appeal and it was not traversed at all
in the
pleadings. A court will not allow a new point to be raised for
the first time on appeal unless it was covered by the
pleadings.
Secondly, section 39(2)(a) and (b) of the Transkei Act provided
that parties who did not wish to marry out of
community of property
could make a declaration to that effect, jointly before a magistrate
or a marriage officer at any time before
the solemnisation of the
marriage or could conclude an ante-nuptial contract. The
respondent did not make the election and
there is no evidence to
suggest that she wished to do so but was unable to. The court
cannot make a new contract for the
parties and [is] obliged to
enforce the terms of their marriage contract. For those reasons
the appeal must succeed. The
appellant agreed to forego the
costs of the appeal and there will thus be no costs order against the
respondent.”
[9]
(Footnote omitted.)
[11]
The applicant now seeks an order in this Court in the
following terms:
“
2. That leave to appeal to the Constitutional
Court be granted and/or that the Applicant be granted direct access
to the Constitutional
Court in respect of the constitutional
challenge to
section 7(3)
of the
Divorce Act 70 of 1979
as more fully
set out below;
3. That the Minister of Justice and Correctional
Services be joined as a respondent to these proceedings;
4. That
section 7(3)
of the
Divorce Act 70 of 1979
, as
it currently reads, is declared unconstitutional to the extent that
it does not allow a spouse married out of community of
property
without having entered into an antenuptial contract (as contemplated
in the now repealed section 39 of the Transkei Marriage
Act 21 of
1978), the right to claim a redistribution of property on divorce;
5. That
section 7(3)
of the
Divorce Act 70 of 1979
must
be amended to include a section (c) which should read ‘
entered
into in terms of the Transkei Marriage Act 21 of 1978, as it existed
before the repeal of section 39 thereof, without entering
into an
antenuptial contract prior to the said marriage
’;
6. That the appeal against the order of the Supreme
Court of Appeal dated 29 May 2017, under case no 564/2016 (also known
as 118/2016),
be upheld;
7. That the order of the Supreme Court of Appeal is set
aside and its stead the following order is substituted:
7.1.
The matter is referred back to the Trial Court to determine the
proprietary interests of the Applicant and the First Respondent,
Mr
Holomisa;
7.2.
Nothing in this order will bar either party from amending his/her
pleadings and/or from leading further evidence and / or
from taking such steps as may be necessary to bring the divorce to
finality;
7.3.
Costs of this appeal will be costs in the cause.”
[10]
The procedural
obstacles
[12]
Before us, all concerned agreed that the marriage was indeed
out of community of property. This concession was correctly
made,
for the reasons set out later in this judgment. Acceptance
of this necessitated the change in tack by the applicant to attacking
the constitutional validity of section 7(3), belatedly in the Supreme
Court of Appeal, and now before us.
[13]
The conundrum the applicant finds herself in is that she needs
a declaration of the constitutional invalidity of section 7(3) in
order for her to gain any personal advantage in the divorce
proceedings. The first hurdle she faces is this Court’s
reluctance to grant direct access for constitutional challenges to
legislation. Even if she is able to convince us that it
is in
the public interest to allow a direct access constitutional
challenge, she then needs to show why she should derive personal
benefit from a declaration of constitutional invalidity, given the
apparent lack of explanation on affidavit for the procedural
lapses
along the way.
[14]
First, though, the proprietary regime regulating the marriage.
In or out of
community of property?
[15]
In terms of section 22(6) of the Black Administration Act the
default proprietary regime for civil marriages entered into between
black persons was not in community of property, as it was under the
common law, unless the intending spouses within a month before
the
marriage jointly declared before a competent official that it was
their intention that community of property and of profit
and loss
must result from their marriage. After the so-called
independence of the former Transkei, the Transkei Marriage
Act
repealed section 22 of the Black Administration Act for citizens of
the former Transkei and replaced it with a similar provision,
section
39.
[11]
[16]
But then things started to happen on the “South African”
side of the border which, because of the Transkei’s
independence
under South African and Transkeian law,
[12]
was not mirrored in the Transkei. Legislation was passed to
ensure that the default proprietary regime for all marriages
in
“South Africa”, regardless of race, would be in community
of property, unless an ante-nuptial contract was entered
into. In
addition, the potential harsh consequences flowing from a marriage
out of community of property under certain circumstances
were
ameliorated by
section 7(3)
of the
Divorce Act.
[17
]
It reads:
“(3) A court granting a decree of divorce in respect of a
marriage out of community of property
¾
(a)
entered into before the commencement of the
Matrimonial Property Act,
1984
, in terms of an antenuptial contract by which community of
property, community of profit and loss and accrual sharing in any
form
are excluded; or
(b)
entered into before the commencement of the Marriage and Matrimonial
Property Law Amendment Act, 1988, in terms of section 22(6)
of the
Black Administration, 1927 (Act 38 of 1927), as it existed
immediately prior to its repeal by the said Marriage and Matrimonial
Property Law Amendment Act, 1988,
may, subject to the provisions of subsections (4), (5) and (6), on
application by one of the parties to that marriage in the absence
of
any agreement between them regarding the division of their assets,
order that such assets, or such part of the assets, of the
other
party as the court may deem just be transferred to the
first-mentioned party.”
[18]
Further legislative amendments in “South Africa”
also ensured that married women in “South Africa” were no
longer subject to their husband’s marital power.
[13]
[19]
Whether by design or oversight, these developments passed
women in the Transkei by before our new constitutional dawn in 1994.
But
as we will see, the promise of the new era has not been
fulfilled for all, including the applicant.
[20]
The Justice Laws Rationalisation Act
[14]
(Rationalisation Act) commenced on 1 April 1997. It
extended the operation of a number of laws, including the
Divorce Act
and
the
Matrimonial Property Act, to
every area which before 27 April
1994 formed part of the former homelands, including the Transkei.
[15]
It also repealed sections 42 to 50 of the Transkei Marriage
Act.
[16]
Section 42(5) of the Transkei Marriage Act had empowered a
court to make an order determining the mutual property rights
of the
parties to a marriage. The Rationalisation Act included savings
provisions to the effect that nothing in the Act shall
affect the
operation of any law made by section 2 or repealed by section 3 or
anything done or suffered under those, nor affect
any right,
privilege, obligation or liability acquired, accrued or incurred
under these laws.
[17]
The remaining provisions of the Transkei Marriage Act continued
to operate as law under the Interim Constitution until amended
or
repealed.
[18]
The transition was supposed to be completed by the Marriage
Extension Act,
[19]
which extended the operation of the South African Marriage Act
[20]
retrospectively to the whole of South Africa, including the Transkei.
[21]
What was lacking, however, was a repeal of the operational
provision of the Transkei Marriage Act that determined the
matrimonial
proprietary regime, section 39.
[21]
That only came about by the Recognition of Customary Marriages
Act, which expressly repealed, among others, section 39 of
the
Transkei Marriage Act. The Act only came into operation on 15
November 2000. It did not purport to invalidate section
39 of
the Transkei Marriage Act retrospectively.
[22]
The result of all this was that the property regime of the
applicant’s marriage was determined by section 39 of the
Transkei
Marriage Act. The default regime of that provision was
a marriage out of community of property, unless excluded by an
antenuptial
contract or an express declaration in terms of section
39(2).
[22]
And by the time the matter was argued before us all the parties
accepted, correctly, that there was no exclusion of the default
regime and that the marriage between the applicant and the first
respondent was indeed one out of community of property.
Rationality and
equality
[23]
Is there any reason why Transkei women
[23]
in the position of the applicant should be deprived of the benefits
of a possible just transfer of assets on divorce in terms of
section
7(3)
of the
Divorce Act? &nbs
p;I can think of none. Tellingly,
neither could the Minister, the second respondent.
[24]
It fails the test of rationality in terms of section 9(1) of
the Constitution,
[24]
namely whether the distinction drawn between women in this position
in the Transkei and those in the rest of South Africa is connected
to
a legitimate governmental purpose.
[25]
No legitimate governmental purpose was proffered by the
representative of government, the Minister, and it seems almost
impossible to conceive of one. As was suggested from the Bench
during oral argument, it is, in colloquial terms, a “no-brainer”.
Nothing more needs to be said on that score.
Direct access?
[25]
Despite not being able to put forward any defence for
continuing the obvious and gross inequality, the Minister, though
formally
abiding our decision, nevertheless referred us to the many
cases where this Court has made the point that direct access will be
granted only in exceptional circumstances.
[26]
Important considerations in that regard are that this Court
should only rarely sit as a court of first and last instance,
[27]
and that the constitutional attack should properly be raised in the
papers at the outset.
[28]
Both relate to the same concern, namely that this Court will
normally benefit from the views of another court in complex
constitutional matters.
[29]
[26]
The answer to these concerns lies in the fact that the issue
is not complex. It is simple and straightforward. That also
explains
why the formal failure, the lack of early pleading, is not
an insuperable bar. A failure to raise the constitutional issue
may amount to a breach of legality and the rule of law.
[30]
The test for meeting the problem of inadequate pleading is that
of potential prejudice in dealing with the point on a factual
or
legal level.
[31]
No prejudice of that kind exists here.
[27]
Since the issue is not a complex constitutional question,
there is no additional benefit that this Court would have from the
constitutional
issue being ventilated in lower courts because the
discrimination the applicant faces as one of many vulnerable women in
the former
Transkei is indefensible.
[28]
The anomaly here results from the tangled net of
post-apartheid legislation that sought, in good faith, to regularise
the position
in democratic South Africa but failed to do so
completely. None of the succeeding statutes designed to
rationalise, normalise
and make uniform the rights and obligations of
inhabitants of the former homelands remedied the position of persons
finding themselves
in the position of the applicant. This is not a
case where there could be debate about constitutional validity and
whether it was
proper for the Department of Justice to wait for a
challenge. Here, the Department knew that there was a
legislative mess,
tried to fix it but – for undoubtedly obscure
and extremely rare reasons – failed to do so
comprehensively.
[32]
The extreme rarity of this, incidentally, counteracts the fear
that the floodgates to direct access will now be opened.
[33]
[29]
The discrimination in this case is a relic of South Africa’s
apartheid history which sought to disadvantage women on the basis
of
a number of intersecting grounds: gender, race, ethnicity, marital
status, geographic location and socio-economic status.
[34]
The intersectional nature of this discrimination compounds the
gravity of Parliament’s failure to rationalise the Transkei
Marriage Act. Although Parliament did not seek intentionally to
continue to discriminate against women in the former Transkei,
the
effect of its failure to remedy the situation is that the
discrimination continues. It is imperative to acknowledge and
eradicate all forms of discrimination in order to achieve effective
change.
[30]
Direct access to declare section 7(3) constitutionally invalid
to the extent that it excludes women in the applicant’s
position
should thus be granted.
Individual
remittal?
[31]
The applicant never explained on affidavit why the case
went ahead with her unrepresented in the Regional Court and laid no
factual
premise impugning the constitutional unacceptability of her
omission from
section 7(3)
of the
Divorce Act. In
terms of pure
process, she never brought a substantive application for direct
access explaining why the constitutional point had
never been raised
before or why it should be heard now, only belatedly, and before this
Court as a court of first and last instance.
To compound
matters, because of recusation complexities, oral argument had to be
postponed in this Court.
[35]
All this, with no particular blame anywhere, means little
credit can be derived from the legal system, the legal advice and
support the applicant received until the Supreme Court of Appeal
hearing and the complexities of bringing a constitutional challenge
before this Court.
[32]
It is hardly imaginable that the Minister or any other party
could advance grounds to defend the injustice that would be inflicted
on the applicant if relief were not offered to her. We were
informed at the start of the hearing that the first respondent
had
filed a notice to abide. It would be iniquitous for us to send
the applicant away with a stone instead of bread.
Remedy and costs
[33]
The applicant seeks an order in two parts, one declaring
section 7(3)
unconstitutional, and the other referring her own
proprietary claim back to the Regional Court. She asked
for a final
declaration of constitutional invalidity, but the
Minister suggested a declaration of invalidity together with a
suspension of
the declaration and an interim reading-in. That
seems best. It will allow Parliament to find out in what former
homelands
comparable anomalies arise and decide on the final
legislative formulation.
[34]
The applicant did not seek a costs order. She is represented
by Legal Aid South Africa. The applicant’s Legal Aid
representatives
have done her, women in her position and our justice
system a great service.
Order
[35]
The following order is made:
1. The Minister of Justice and Correctional Services is joined as
second respondent.
2. Direct access is granted.
3. Sub-section 7(3) of the
Divorce Act 70 of 1979
is declared
constitutionally invalid to the extent that it excludes a spouse
married out of community of property who has not entered
into an
ante-nuptial contract or an express declaration in terms of
section
39(2)
of the now repealed section 39 of the Transkei Marriage Act 21
of 1978, from its ambit.
4. The declaration of constitutional invalidity is suspended for 24
(twenty-four) months to allow Parliament to remedy this defect.
5. During the period of suspension
section 7(3)
of the
Divorce Act 70
of 1979
must be read so as to include the following as
section
7(3)(c):
“entered
into in terms of the Transkei Marriage Act 21 of 1978, as it existed
before the repeal of section 39, without entering
into an
ante-nuptial contract or an express declaration in terms of the
repealed section 39(2) before the marriage.”
6. Leave to appeal is granted
7. The appeal succeeds.
8. The order of the Supreme Court of Appeal is set aside and
substituted with the following:
“(a)
The matter is referred back to the Regional Court to determine the
proprietary interests of the applicant and the first
respondent;
(b)
Nothing in this order will bar any party from amending their
pleadings in relation to the determination of their proprietary
interests arising from the marriage;
(c)
Costs of this appeal will be costs in the cause of determining the
proprietary interests arising from the marriage.”
9. There will be no costs order in this Court.
For the
Applicants:
L Crouse instructed by Legal Aid
South Africa
For the First
Respondent:
S L Mgxaji instructed by Mgxaji and
Co Inc
For the Second
Respondent:
N Rajab-Budlender instructed by
State Attorney
[1]
Khohliso v the State
[2014] ZACC 33
;
2015 (1) SACR 319
(CC);
2015 (2) BCLR 164
(CC) at para 53.
[2]
21 of 1978.
[3]
70 of 1979.
[4]
The section is quoted in full below at [17].
[5]
88 of 1984.
[6]
3 of 1988.
[7]
38 of 1927. Section 22(6) reads:
“A marriage between Natives, contracted after the commencement
of this Act, shall not produce the legal consequences of
marriage in
community of property between the spouses: Provided that in
the case of a marriage contracted otherwise than
during the
subsistence of a customary union between the husband and any woman
other than the wife it shall be competent for the
intending spouse
at any time within one month previous to the celebration of such to
declare jointly before any magistrate, native
commissioner, or
marriage officer (who is hereby authorised to attest such
declaration) that it is their intention and desire
that community of
property and of profit and loss shall result from their marriage,
and thereupon such community shall result
from their marriage except
as regards any land in a location held under quitrent tenure such
land shall be excluded from such
community.”
[8]
The reasoning of the High Court was that the Magistrate erred in
holding that the Marriage Extension Act impliedly repealed the
Transkei Marriage Act. The High Court held that retrospective
operation of the Marriage Extension Act did not have the
effect of
altering the matrimonial property regimes of parties whose marriages
were solemnised after 27 April 1994 and prior
to the repeal of
section 39 of the Transkei Act by virtue of the Recognition of
Customary Marriages Act during November 2000.
However the High
Court concluded that the evidence adduced by the first respondent
from the witness stand coupled with the fact
that he was unable to
provide a copy of the Marriage Certificate to establish a prima
facie case that he and the applicant were
in fact married and
domiciled in the Transkei in terms of the Transkei Marriage Act,
coupled with the fact that in the High Court
he had been unable to
establish same, meant that he failed to adduce sufficient evidence
to prove that the marriage was solemnised
in terms of the Transkei
Marriage Act, and could not consequently claim that section 39(1) of
the Transkei Marriage Act was applicable
to his marriage.
[9]
Patekile Holomisa v Nolizwe Holomisa
[2017] ZASCA 64
at paras
6-8.
[10]
This is based on the relief the applicant seeks in her amended
notice of motion which was filed with this Court.
[11]
Section 39 reads:
“
(1) Subject to the provisions of subsection (2),
a marriage contracted in terms of the provisions of this Act shall
produce the
legal consequences of a marriage out of community of
property or of profit and loss; or
(2) It shall be competent for the parties to any
intended civil marriage who desire that community of property and of
profit and
loss shall result from their marriage
¾
(a) to enter into an antenuptial contract which
provides for community of property or of profit and loss; or
(b) to be declared jointly before a magistrate or
marriage officer, at any time prior to the solemnisation of such
civil marriage
and substantially in the prescribed form that it is
their intention and desire that community of property and of profit
and loss
shall result from their civil marriage,
and thereupon such community shall, subject to the laws
relating to the registration of antenuptial contracts, result in
accordance
with the provisions of such antenuptial contract or
declaration, case may be; Provided that the provisions of such an
antenuptial
contract or declaration in terms of paragraph (b) shall
not
¾
(i)
apply to
land held in individual tenure under quitrent conditions which shall
be excluded from such community; or
(ii)
in any way
affect the marital power of the male party to such civil marriage.”
[12]
Transkei’s independence was never internationally recognised.
[13]
General Law Fourth Amendment Act 132 of 1993
.
[14]
18 of 1996.
[15]
Section 2 of the Rationalisation Act.
[16]
Section 3.
[17]
Section 15.
[18]
Section 229 of the Interim Constitution Act 200 of 1993.
[19]
50 of 1997.
[20]
25 of 1961.
[21]
See above n 14.
[22]
See above n 11.
[23]
Counsel for the applicant in reply argued that this Court is not
called upon to consider the matrimonial legislations of the
other
former TBVC states, namely, Bophuthatswana Marriage Act 15 of 1980,
Venda Matrimonial Affairs Act 37 of 1953, and Ciskei
Matrimonial Act
37 of 1953.
[24]
Section 9(1) of the Constitution reads:
“Everyone is equal before the law and has the right to equal
protection and benefit of the law.”
[25]
Print Media South Africa v Minister of Home Affairs
[2012]
ZACC 22
;
2012 (6) SA 443
(CC);
2012 BCLR 1346
(CC) at paras 79-82.
[26]
Minister of Police v Premier of the Western Cape
[2013] ZACC
33
;
2014 (1) SA 1
(CC);
2013 (12) BCLR 1405
at para 20;
Women’s
Legal Centre Trust v President of the Republic of South Africa
[2009] ZACC 20
;
2009 (6) SA 94
(CC);
2009 JOL 23910
(CC) at para 27;
Mkontwana v Nelson Mandela Metropolitan Municiplality; Bisset v
Buffalo City Municipality; Transfer Rights Action Campaign v MEC,
Local Government and Housing, Gauteng
(
KwaZulu-Natal Law
Society and Msunduzi Municipality as amici curiae
)
[2004] ZACC
9
;
2005 (1) SA 530
(CC);
2005 (2) BCLR 150
(CC) (
Mkontwana
)
at para 11;
Christiaan Education South Africa v Minister of
Education
[2000] ZACC 11
;
2000 (4) SA 757
(CC);
2000 (10) BCLR
1051
(CC) at para 9;
Bruce v Fleecytex Johannesburg CC
[1998]
ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at paras 7-8.
[27]
Mkontwana
id at para 11;
Bruce
id at paras 7-9;
Minister of Police
id at para 20;
Women’s Legal
Centre Trust
id at para 27.
[28]
Phillips v National Director of Public Prosecutions
[2005]
ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC) at para 43.
[29]
Mkontwana
above n 26 at para 11:
“A useful point at which to start in considering an
application for direct access is to recognise the importance of the
principle that it is ordinarily not in the interest of justice for
this Court to be court of first and last instance. The
Constitution and the rules of this Court do, however, provide for
this Court to be the court of first and final instance, but
only in
exceptional circumstances. The saving of time and costs, the
importance of the issue or the existence of conflicting
judgments on
an issue in a case do not, without more, constitute exceptional
circumstances and justify this Court being a court
of first and last
instance. Indeed the importance and complexity of the issues
raised would weigh heavily against this
Court being a court of first
and final instance. As a general rule, the more important and
complex the issues in a case,
the more compelling the need for this
Court to be assisted by the views of another court. Each of
the issues in respect
of which direct access is sought must be
considered separately.”
[30]
South African Transport & Allied Workers
Union v Garvas
[2012] ZACC 13
;
2013
(1) SA 83
(CC);
2012 (8) BCLR 840
(CC) (
Garvas
)
at para 113-4 Jafta J writing for the minority held that:
“Orders of constitutional invalidity have a reach that extends
beyond the parties to a case where a claim for a declaration
of
invalidity is made. But more importantly these orders intrude,
albeit in a constitutionally permissible manner, into
the domain of
the legislature. The granting of these orders is a serious
matter and they should be issued only where the
requirements of the
Constitution for a review of the exercise of legislative powers have
been met.
. . .
Holding parties to pleadings is not pedantry. It is an
integral part of the principle of legal certainty which is an
element of the rule of law, one of the values on which our
Constitution is founded. Every party contemplating a
constitutional
challenge should know the requirements it needs to
satisfy and every other party likely to be affected by the relief
sought must
know precisely the case it is expected to meet.”
[31]
Phillips
above n 28 at para 39;
Prince v President, Cape
Law Society
[2000] ZACC 28
;
2001 (2) SA 388
(CC);
2001 (2) BCLR
133
(CC) at para 22.
[32]
See
S v Thunzi
[2010] ZACC 27
; 2010 JDR 1472 (CC);
2010 (10)
BCLR 983
(CC) at para 8 confirmed the following:
“Parliament accepted, and it was common cause, that it had an
obligation to effect rationalisation in order to have uniform
national legislation regulating the use of dangerous weapons.”
In
Zondi v MEC
for Traditional and Local Government Affairs
[2004] ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC) at para 36 Ngcobo J
held that—
“where a court is concerned with legislation that is rooted in
apartheid, it is necessary to cleanse the statute books
of such
statutes. Such statutes are inconsistent with the Constitution
and they cannot be allowed to remain in our statute
books.”
[33]
There are others who fear that this Court has not even allowed a
trickle; see Dugard “Court of First Instance? Towards
a
Pro-Poor Jurisdiction for South African Constitutional Court”
(2006) 22
SAJHR
261
at 273-4:
“Notwithstanding such caution, I believe it does say something
about the Court’s formalistic style of adjudication
that,
since its inception, direct access has been granted ‘in only a
handful of cases’. Indeed apart from
Zuma
referred to above, my research uncovered only eight direct access
applications in which direct access has been granted between
February 1995 and December 2005. Moreover, in most of these
instances, the granting of direct access appears to have been
based
more on the need to remedy some procedural defect in the
circumstances around which the case came before the Court or to
attach what serves as an essentially amicus-type intervention by a
relevant interest group to an existing matter, than on substantive
consideration of whether, had the case been a genuine ‘off the
street’ case, direct access would have been granted.
As
a consequence, the Court’s direct access jurisprudence throws
more light on the kinds of situations in which direct
access will
not
be granted than on what conditions will be
construed to be sufficiently ‘in the interests of justice’
for direct
access to be granted.”
[34]
See for example
Brink
v Kitshoff N.O.
[1996] ZACC 9
;
1996
(4) SA 197
(CC);
1996 (6) BCLR 752
(CC) at para 44.
[35]
The matter was originally set down for hearing on Tuesday, 6 March
2018. However, it was finally set down and heard on
Tuesday,
14 August 2018.