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[2015] ZAWCHC 6
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F.R v F.R (Born C.C.R) and Others (14770/2011) [2015] ZAWCHC 6; [2015] 2 All SA 352 (WCC) (29 January 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: 14770/2011
DATE: 29 JANUARY 2015
In the matter between:
[F………]
[R……]
.....................................................................................................
Plaintiff
And
[F…….] [R…….]
(BORN C................. C............
R............)
...........................
First
Defendant
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
.......................................................................................
Second
Defendant
TRANSNET RETIREMENT
FUND
...............................................................
Third
Defendant
MINISTER OF HOME
AFFAIRS
................................................................
Fourth
Defendant
JUDGMENT DELIVERED ON 29 JANUARY
2015
BREMRIDGE, AJ
1. The Plaintiff in this matter issued
summons against the First Defendant claiming certain relief in
respect of the proprietary
consequences of an Islamic marriage
solemnised between the Plaintiff and the First Defendant on 3 March
1988.
2. After the close of pleadings the
parties agreed on a written statement of facts to be considered by
the Court in adjudicating
certain questions of law under rules 33(1)
and 33(2) of the Uniform Rules of Court, (“the Stated Case”).
3. It seems to me that the adjudication
of the questions of law in issue herein should have been dealt with
in accordance with the
procedure contemplated by rule 33(4) but given
the advanced stage of the matter when it came before me for
determination and delays
already incurred, I considered it to be
inappropriate to let such procedural issues obstruct or delay the
determination of the
matter.
4. The Stated Case agreed to and
presented by the parties for adjudication, is as follows:
A. The Parties
5. The Plaintiff is [F……]
[R……] (nee Jacobs) an adult female, currently
unemployed, residing at [3…..
F…….. Road, S…….,
Western Cape.]
6. The First Defendant is [F……]
[R…..] (Born C….. C….. R……) an
adult male armature
rewinder and currently resident at [6……
S…. Street, A….. Court, P…..-E…, Western
Cape.]
7. The Second Defendant is the Minister
of Justice and Constitutional Development c/o the State Attorney, 4th
Floor, Liberty Life
Centre, 22 Long Street, Cape Town, cited in his
capacity as the member of the national executive responsible for the
administration
of the
Divorce Act 70 of 1979
and any other laws, the
constitutionality of which are challenged in this matter. By virtue
of Rule 10A of the Uniform Rules of
Court the Plaintiff is obliged to
join the Second Defendant as a party to these proceedings.
8. The Third Defendant is the Transnet
Retirement Fund which was established in terms of the Transnet
pension Fund Act 62 of 1990
(as amended) with its principal place of
business at No. 8 Hillside Road, Park Town, Johannesburg, Gauteng.
The Third Defendant
is cited because the relief sought in relation to
the First Defendant’s pension fund with the Third Defendant in
respect
of such relief and any other relief emanating from this
action. No costs are sought against the Third Defendant unless it
seeks
to oppose the relief sought.
9. The Fourth Defendant is the Minister
of Home Affairs c/o the State Attorney, 4th Floor, Liberty Life
Centre, 22 Long Street,
Cape Town, cited in his capacity as the
member of the national executive responsible for the administration
of the Marriage Act
25 of 1961 (“the Marriage Act”), the
constitutionality of which is challenged in this matter. By virtue of
Rule 10A
of the Uniform Rules of Court the Plaintiff is obliged to
join the Fourth Defendant as a party to these proceedings.
B. Agreed Facts
10. On or about 20 December 1975 the
First Defendant and E…… A…. R……
entered into a civil marriage
(“the civil marriage”)
solemnised in terms of the Marriage Act.
11. The civil marriage subsisted until
a decree of divorce was granted by the Western Cape High Court on 19
June 1998.
12. On 3 March 1988 and at Wynberg,
Cape Town, Plaintiff and First Defendant entered into a marriage
which was solemnised according
to Islamic law (“the Islamic
marriage”).
13. At the time that Plaintiff and
First Defendant entered into the Islamic marriage, the First
Defendant was married to E….
A…. R…. in terms of
the Marriage Act.
14. Plaintiff was unable to terminate
the Islamic marriage in any court of law in South Africa, in that she
was married in terms
of Islamic law and not in accordance with the
Marriage Act.
15. The Islamic marriage was annulled
on 20 July 2009 by the Muslim Judicial Council.
16. No relief is sought against the
Third Defendant and it has not opposed these proceedings.
The Questions of law to be adjudicated
17. The questions of law to be
adjudicated are set out in paragraphs 13 and 14 of the Stated Case
and are, in summary:
17.1 Firstly, whether the Islamic
marriage entered into between the Plaintiff and the Defendant was
validly contracted notwithstanding
the prior marriage in terms of the
provisions of the Marriage Act;
17.2 Secondly, whether the First
Defendant’s prior existing civil marriage would “act as a
bar” to the Plaintiff
being entitled to claim certain relief in
respect of the proprietary consequences of her Islamic marriage to
the First Defendant.
18. As I understand the written
argument presented by the Plaintiff , which was followed in the oral
argument presented at the hearing,
however, the Plaintiff’s
position is that if this Court were to find that the First
Defendant’s prior civil marriage
did not constitute a bar to a
claim by Plaintiff for the proprietary relief as set out in paragraph
14 of the Stated Case, then
it is not necessary for this Court to
make a pronouncement as to the Constitutional validity of polygamous
unions and it is only
in the alternative and in the event of the
Court finding that the Plaintiff’s prior civil marriage does
constitute a bar
to a claim for such relief, that this Court should
seek to develop the common law definition of marriage to afford
recognition
to a Muslim marriage and in particular in the current
matter, a marriage which may be considered to be polygamous.
19. As pointed out by Sachs J. in the
majority judgment of the Constitutional Court in Daniels v Campbell
NO and Others
[2004] ZACC 14
;
2004 (5) SA 331
(CC), in relation to relief sought,
under the
Intestate Succession Act 81 of 1987
and the Maintenance of
Surviving Spouses Act 27 of 1990, by a surviving spouse of an Islamic
marriage:
“The central question is not
whether the applicant was lawfully married to the deceased, but
whether the protection which
the Acts intended widows to enjoy should
be withheld from relationships such as hers.”
20. Given the reasoning of the
Constitutional Court in the Daniels case, supra, and in the
subsequent decision in Hassam v Jacobs
2009 (5) SA 572
(CC),
addressed below, I am of the view that in this matter also, the
Plaintiff’s entitlement to the relief set out in paragraph
14
of the Stated Case and the determination of the issue set out in that
paragraph, is not dependant on a determination of the
validity or
invalidity of the Islamic marriage entered into between the Plaintiff
and the First Defendant on 3 March 1998.
21. The Plaintiff argued that there had
to date been no pronouncement on the Constitutional validity of
polygamous Muslim marriages.
22. While that may be so, the
Constitutional Court has proceeded, in the matters referred to above
and in others, on the basis that
Muslim or Islamic marriages are not
recognised as legally valid in our law.
23. Indeed in Daniels, Moseneke J., in
the minority judgement, emphasized that:
“Marriages that have been
solemnised under the tenets of the Islamic faith remain unrecognised
as valid marriages under the
common law.”
24. Moseneke J. further emphasized that
the doctrine of precedent is an incident of the rule of law, its
primary purpose being to
advance justice “by ensuring certainty
of the law, equality and equal treatment and fairness before it.”
25. The learned Judge addressed the
report of the South African Law Commission on Islamic marriages and
the draft Muslim Marriages
Act and held that the matter was “…so
complex and replete with contending policy, personal law and
pluralistic considerations
that it was better suited for legislative
rather than judicial intervention.
26. In the matter of Faro v Bingham NO
and Others (4466/2013)
[2013] ZAWCHC 159
(25 October 2013) Rogers J.,
having dealt with certain developments in relation to the report of
the Commission and the publication
of the Muslim Marriages Bill in
December 2010, held that the regulation of Islamic marriages is a
sensitive subject requiring widespread
consultation and more detailed
provisions than a Court could appropriately incorporate in judicial
order and that a court would
be “..most reluctant to make
orders affecting the substantive law in this area.”
27. I am in respectful accord with the
approach adopted by the learned Judges in this regard and in
particular with the view that
the issues as to the recognition and
validity of Muslim marriages are “better suited to legislative
than judicial intervention.”
28. In light of the aforegoing, my
finding on the issue for determination set out in paragraph 13 of the
Stated Case as to the validity
or otherwise of the Plaintiff’s
Islamic marriage to the First Defendant, is that for the purposes of
South African Law, such
marriage is not considered to have been
validly contracted.
29. I turn then to the second question
of law to be decided, as set out in paragraph 14 of the Stated Case
namely, whether the First
Defendant’s pre-existing civil
marriage would “act as a bar” to a claim by the Plaintiff
for relief in respect
of the proprietary consequences of the Islamic
marriage, as follows:
29.1 That the First Defendant be
required to pay monthly maintenance in the amount of R1 000,00 from
the date of divorce and or
expiration of the iddah (waiting) period
until the Plaintiff’s death or remarriage as contemplated in
Section 7(2)
of the
Divorce Act;
29.2 That
the First Defendant’s
pension interests in the Third Defendant as at 23 October 2008 be
declared to be part of his assets;
29.3 That the Third Defendant be
required to pay over to the Plaintiff half of the First Defendant’s
pension fund as valued
at 23 October 2008 when any pension benefits
accrue to the First Defendant in relation thereto.
30. As stated above, I am of the view
that the answer to this question does not turn upon the validity or
otherwise of the said
Islamic marriage.
31. The Second and Fourth Defendants,
with whose arguments the First Defendant associated himself, have in
this regard, however,
raised the issues that:
31.1 The Plaintiff’s Islamic
marriage to the First Defendant has already been dissolved by the
Muslim Judicial Council, (the
“MJC”), in consequence
whereof it is argued that the Court no longer has any jurisdiction to
grant a divorce in relation
to that marriage; and
31.2 The polygamous marriage between
Plaintiff and First Defendant is not recognised as valid in our law.
32. Having decided the issue raised
under paragraph 13 of the Stated Case and in light of my view that
the determination of the
issue set out in paragraph 14 of the Stated
Case does not turn on the issue of the validity or invalidity of the
Islamic marriage,
I am further of the view that these issues, as
raised by Second and Fourth Defendants, do not require determination
in the determination
of the issue set out in the said paragraph 14 of
the Stated Case.
33. I nevertheless intend to consider
these issues, firstly, in that I may be found to be wrong in this
regard and secondly, as
my decision on the issue set out in paragraph
14 of the Stated Case may be informed by my views and reasoning on
such issues, in
particular in relation to the decision of the
Constitutional Court in Hassam’s case, supra.
34. The relief set out in paragraph
14.1 of the Stated Case is expressly stated to be under
section 7(2)
of the
Divorce Act while
the relief sought in paragraphs 14.2 and
14.3 would appear to be sought under
section 7(8)
of the
Divorce Act.
35. Sections
2 (1), (3) and (4) of the
Divorce Act provide
that:
“(1) A court shall have
jurisdiction in a divorce action if the parties are or either of the
parties is-
(a) domiciled in the area of
jurisdiction of the court on the date on which the action is
instituted; or
(b) ordinarily resident in the area of
jurisdiction of the court on the said date and have or has been
ordinarily resident in the
Republic for a period of not less than one
year immediately prior to that date.
(2 ………………..
(3) A court which has jurisdiction in
terms of this section in a case where the parties are or either of
the parties is not domiciled
in the Republic shall determine any
issue in accordance with the law which would have been applicable had
the parties been domiciled
in the area of jurisdiction of the court
concerned on the date on which the divorce action was instituted.
(4) The provisions of this Act shall
not derogate from the jurisdiction which a court has in terms of any
other law or the common
law.”
36. Section 7(9) of that Act provides
that:
“When a court grants a decree of
divorce in respect of a marriage the patrimonial consequences of
which are according to the
rules of the South African private
international law governed by the law of a foreign state, the court
shall have the same power
as a competent court of the foreign state
concerned would have had at that time to order that assets be
transferred from one spouse
to the other spouse.”
37. Regarding the first issue raised by
the Second and Fourth Defendants as set out above, in AM v RM
2010
(2) SA 223
(ECP), the court held that the fact that a “Muslim
divorce” had been concluded was no obstacle to a divorce action
where there was, inter alia, a challenge (in that matter a
constitutional challenge) to the legal effect of the talaq.
38. In my view, the Plaintiff, in
seeking the relief set out in paragraphs 14.1 to 14.3 of the Stated
Case, is thereby challenging
the legal effect of the talaq, in
particular in seeking to have the proprietary consequences of her
Islamic marriage regulated
under the
Divorce Act.
39. The
dissolution of the Islamic
marriage by the MJC is therefore and in light of the aforementioned
authority, no bar to the current
divorce action.
40. In Hoossain v Dangor
[2009] JOL
24617
(WCC), Yekiso J, relying on the reasoning in Daniels, supra,
held that the word “spouse” as referred to in Uniform
Rule 43
, includes a spouse to a marriage concluded under the tenets
of Islamic personal law.
41. In both the aforementioned
decisions the Court held, albeit for different reasons, that the
provisions of Uniform
Rule 43
are applicable to a divorce action in
relation to a marriage concluded under Islamic personal law.
42. It appears, inter alia, from
Sections 3
and
4
of the
Divorce Act, that
that Act contemplates the
dissolution of a “marriage”.
43. The term “marriage” is
not defined in the Act.
44. It appears from the abovementioned
provisions, however, that a marriage as contemplated in the Act is
not limited to one solemnised
under the Marriage Act but would, for
example, include a marriage solemnised under the laws of a foreign
state, which may potentially
be at odds with South African common
law.
45. In Daniels the Constitutional
Court, per Sachs J., distinguished that Court’s decisions in
the matters of National Coalition
for Gay and Lesbian Equality and
Others v Minister of Home Affairs and Others
2000 (2) SA 1
(CC) and
Satchwell v President of the Republic of South Africa and Another
2002 (6) SA 1
(CC), on the basis of the distinction between married
and unmarried persons.
46. The Court stated as follows :
“Central to the determinations in
National Coalition and Satchwell, was a legal finding that it would
place an unacceptable
degree of strain on the word ‘spouse’
to include within its ambit parties to a permanent same-sex life
partnership.
Thus, in Satchwell, Madala J pointed to members of such
same-sex partnerships as well as to heterosexual couples who chose
not
to marry, as belonging to a class of persons who could not be
considered to be ‘spouses’. The crucial distinction
underlying
the two judgments is the one made between married and
unmarried persons, not that between persons married under the
Marriage Act
and those not. There is nothing to indicate that the
attention of the Court in either case was directed to marriages such
as those
contracted by the applicant. I accordingly do not agree that
the two cases serve as authority for denying to parties to Muslim
marriages the protection offered by the Acts. Ngcobo J has come to
the same conclusion. I would like to express my agreement with
the
supplementary reasons he has advanced.”
47. In essence therefore, the
Constitutional Court held that parties to a Muslim “marriage”
were to be considered spouses
because they were married, albeit that
their marriages were not solemnised under the Marriage Act and not
recognised as valid under
South African law.
48. On that basis the Constitutional
Court held:
48.1 that the word “spouse”
as used in the
Intestate Succession Act 81 of 1987
includes the
surviving partner to a monogamous Muslim marriage;
48.2 that the word “survivor”
as used in the Maintenance of Surviving Spouses Act 27 of 1990,
includes the surviving
partner to a monogamous Muslim marriage;
48.3 that the Applicant in that matter
was for the purpose of the
Intestate Succession Act, a
“spouse”;
and
48.4 that the Applicant was for the
purposes of the Maintenance of Surviving Spouses Act 27 of 1990, a
“survivor”.
49. It would in my view be anomalous to
hold, on the one hand, that by virtue a person being party to a
“Muslim marriage”
they are to be considered a “spouse”
for the purposes of receiving the protections and benefits afforded
under the
aforementioned Acts yet, on the other hand, that the very
“marriage” upon which their status as “spouse”
is founded, should not be considered a marriage for the purpose of
that party being able to seek a dissolution of that marriage
and the
related protections and benefits under the
Divorce Act.
50. Indeed
, the reference in the
Constitutional Court’s order to a Muslim union as being a
“marriage” is significant in
this regard.
51. In my view it follows from the
authorities referred to above, in particular the Constitutional
Court’s decision in Daniels
and the subsequent decision in
Hassam, to which further reference will be made below, that a
marriage as contemplated by the
Divorce Act, must
be considered or
interpreted to include a Muslim marriage.
52. The issue which then arises is
whether there is any distinction to be drawn in this regard between a
monogamous Muslim or Islamic
marriage and a polygamous Muslim or
Islamic marriage and this, as I see it, is the issue which falls for
determination under paragraph
14 of the Stated Case.
53. In my view, the answer to this
question is to be found in the Constitutional Court’s decision
in the Hassam case, supra.
54. In that case the Constitutional
Court, per Nkabinde J., held that whereas in the past Muslim
marriages, whether polygamous or
not, were deprived of legal
recognition, the position of women in monogamous Muslim marriages
had, since the decision in Daniels,
been ameliorated by their
recognition as “spouses” under the legislation addressed
in that case, while women in polygamous
Muslim marriages still suffer
“serious effects of non-recognition”.
55. The learned Judge, (after stating
that, although the decision in Daniels dealt only with monogamous
Muslim marriages, the judgement
in Hassam dealt with polygamous
Muslim marriages), held that the distinction between spouses in
polygamous Muslim marriages and
those in monogamous Muslim marriages
unfairly discriminates between the two groups and that the exclusion
of widows in polygamous
Muslim marriages from the protection of the
Intestate Succession Act 81 of 1987 is constitutionally unacceptable.
56. The Court went on to say the
following:
“Marriages concluded under Muslim
rites are potentially polygynous as a man is permitted, subject to
the Qur’anic prescripts,
to marry more than one woman. The
significance attached to polygynous unions solemnised in accordance
with the Muslim religious
faith is by no means less than the
significance attached to a civil marriage under the Marriage Act or
an African customary marriage.
Similarly, the dignity of the parties
to polygynous Muslim marriages is no less worthy of respect than the
dignity of parties to
civil marriages or African customary
marriages.”
57. In my view, the reasoning and
findings of the Constitutional Court in the Hassam case are of equal
application in the determination
of the question of law set out in
paragraph 14 of the Stated Case.
58. That being so, the fact of the
First Defendant’s prior civil marriage, although it may have
the consequence that the Plaintiff’s
subsequent Islamic
marriage to the First Defendant is to be considered to be polygamous,
cannot be held to constitute a bar to
any claim the Plaintiff may
have to the relief as set out in paragraphs 14.1 to 14.3 of the
Stated Case.
Costs
59. As to costs, I note that there is
there was no specific provision made in the Stated Case for the
determination of the issue
of costs and neither the Plaintiff nor the
First Defendant made any written submissions on the issue of costs.
The Second and Fourth
Defendants, however, submitted in their heads
of argument that costs should be awarded in their favour.
60. In my view, both sides have been
partially successful in the determination of the questions of law to
be adjudicated by way
of the Stated Case and I am thus of the view
that each party should bear its own costs in relation to such
proceedings.
Conclusion
61. Accordingly:
61.1. In relation to the question of
law as set out in paragraph 13 of the Stated Case, my finding is that
for the purposes of South
African Law, such marriage is not
considered to have been validly contracted;
61.2. In relation to the question of
law as set out in paragraph 14 of the Stated Case, my finding is that
the First Defendant’s
pre-existing civil marriage to Elizabeth
Ann Rose does not constitute a bar to such claim as the Plaintiff may
have for the relief
in respect of the proprietary consequence of her
Islamic marriage to the First Defendant as set out in paragraphs 14.1
to 14.3
of the Stated Case;
62.3 As to costs, my order is that each
party shall bear its own costs in relation to these proceedings under
Uniform Rule 33.
62. I wish to emphasise at this point,
however, that my finding in respect of paragraph 14 of the Stated
Case must not be read as
establishing or deciding any entitlement to
relief in relation to the proprietary consequences of the Islamic
marriage between
the Plaintiff and the First Defendant.
63. My finding is a limited one, to the
effect that the pre-existing civil marriage is not of itself a bar to
the relief referred
to in paragraphs 14.1 to 14.3 of the Stated Case.
64. Whether, in the absence of any bar
arising from the prior civil marriage, the Plaintiff has any
entitlement to relief of such
nature, is a matter which I am not
called upon to determine and in respect of which I make no finding.
BREMRIDGE, AJ