Amod v Multilateral Motor Vehicle Accidents Fund

• Jurisdiction: South Africa
• Citation: 1998 (4) SA 753 (CC)

Amod v Multilateral Motor Vehicle Accidents Fund
1998 (4) SA 753 (CC) [*]

1998 (4) SA p753

Citation	1998 (4) SA 753 (CC)
Case No	CCT 4/98
Court	Constitutional Court
Judge	Chaskalson P, Langa DP, Ackermann J, Didcott J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Saches J, Yacoob J
Heard	May 21, 1998
Judgment	August 27, 1998
Counsel	MS Omar for the applicant; CJ Pammenter (with him PAC Rowan) for the respondent; M Chaskalson for the amicus curiae (the Commission on Gender Equality)

Flynote : Sleutelwoorde H

Constitutional practice — Appeal — To what Court — Direct appeals to Constitutional Court — Supreme Court of Appeal I having jurisdiction to develop common law in all matters including constitutional matters -

1998 (4) SA p754

Because of breadth of its jurisdiction and its expertise in common law, views of Supreme Court of Appeal as to A whether common law should or should not be developed in a constitutional matter are of particular importance — Constitutional Court will not ordinarily exercise jurisdiction to develop common law in constitutional matters without matter having first been dealt with by Supreme Court of Appeal — When constitutional matter turns on direct application B of Constitution and does not involve development of common law, considerations of costs and time may make it desirable that appeal be brought directly to Constitutional Court.

Constitutional practice — Courts — Jurisdiction — Supreme Court of Appeal — Jurisdiction of under s 35(3) of Constitution C of the Republic of South Africa Act 200 of 1993 and s 39(2) of Constitution of the Republic of South Africa Act 108 of 1996 to develop common law including jurisdiction to decide whether power can be exercised in cases in which the cause of action arose before Constitutions were in force, or whether it should be confined to causes of action arising after coming into force of such Constitutions.

Headnote : Kopnota

The applicant claimed damages in the Durban and Coast Local Division of the High Court for loss of support arising out of the death of her husband in a motor vehicle collision in 1993. The applicant and the deceased were married in accordance with Islamic law and the union was not registered as a civil marriage in terms of the E provisions of the Marriage Act 25 of 1961. The High Court held that the defendant was not liable to compensate the applicant because a claim for damages for loss of support caused by the death of a spouse was allowed by the common law only in cases where the union in question constituted a lawful marriage in terms of the common law. Relying on Ismail v Ismail1983 (1) SA 1006 (A) the Court held that marriages contracted in accordance F with Islamic law were not lawful marriages in terms of the common law, because such marriages were potentially polygamous. As to the effect of the Constitution on the common law rule, the Court a quo held that, notwithstanding the fact that the action had been instituted in the High Court during the lifespan of the interim Constitution, in terms of item 17 of Schedule 6 of the Constitution of the Republic of South Africa Act 108 of G 1996 it would be in the interests of justice to deal with the matter in terms of the 1996 Constitution. The Court a quo went on to hold that, on a proper construction of s 39(2) read with s 8(3) of the 1996 Constitution, Courts were empowered merely to amplify existing legal principles in circumstances where the common law was silent in giving effect to a particular right and where legislation did not make good this deficiency. The 1996 Constitution H did not authorise Courts to eliminate established rules from the common law. This was the responsibility of the Legislature. The applicant applied for leave to appeal directly to the Constitutional Court against the judgment.

Held (per Chaskalson P, the other members of the Court concurring), that the appeal should in the first instance be dealt with by the Supreme Court of Appeal and not by the Constitutional Court. (Paragraph [14] at 761I.) I

Held, further, that the decision of the Constitutional Court in Du Plessis and Others v De Klerk and Another1996 (3) SA 850 (CC) (1996 (5) BCLR 658) (that while the interim Constitution of the Republic of South Africa Act 200 of 1993 did not ordinarily apply to causes of action which arose prior to the date on which it came into force although there might be exceptional circumstances in which this rule would not be applicable) dealt with the J

1998 (4) SA p755

direct application of provisions of the Bill of Rights and not with its indirect application in terms of s 35(3) of the A interim Constitution. The vesting of the power in the Supreme Court of Appeal under s 35(3) of the interim Constitution and s 39(2) of the 1996 Constitution to develop the common law necessarily included the jurisdiction to decide whether the power could be exercised in cases in which the cause of action arose before B the Constitutions were in force, or whether it should be confined to causes of action arising after the coming into force of such Constitutions. (Paragraphs [20] and [23] at 763D and 763G--764A/B.)

Held, further, that the provisions of s 8(2) and (3) of the 1996 Constitution were relevant to the way in which the common law was developed under s 39(2) of the 1996 Constitution. Section 8(2) made the Bill of Rights binding C on natural and juristic persons 'if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right'. Section 8(3) required Courts in giving effect to s 8(2) to 'apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right' and also empowers the Courts to develop 'rules of the common law to limit the right, provided that the limitation is in D accordance with s 36(1)'. The development of a coherent system of law might call for the development of the common law under s 35(3) of the interim Constitution and s 39(2) of the 1996 Constitution to be done in a manner consistent with the way in which the law would be developed under s 8(2) and (3) of the 1996 Constitution. These were matters within the jurisdiction of the Supreme Court of Appeal. (Paragraph [31] at 765D--G/H.) E

Held, further, that when a constitutional matter was one which turned on the direct application of the Constitution and which did not involve the development of the common law, considerations of costs and time might make it desirable that the appeal be brought directly to the Constitutional Court. But when the constitutional matter involved the development of the common law, the position was different. The Supreme Court of Appeal had F jurisdiction to develop the common law in all matters, including constitutional matters. Because of the breadth of its jurisdiction and its expertise in the common law, its views as to whether the common law should or should not be developed in a constitutional matter were of particular importance. Assuming that the Constitutional Court's G jurisdiction to develop the common law in constitutional matters was no different to that of the Supreme Court of Appeal, it was a jurisdiction which ought not ordinarily to be exercised without the matter having first been dealt with by the Supreme Court of Appeal. (Paragraph [33] at 766C--E/F.) Application for leave to appeal directly to the Consitutional Court refused. H

Cases Considered

Annotations

Reported cases

Amod v Multilateral Motor Vehicle Accident Fund 1997 (12) BCLR 1716 (D): leave to appeal directly to Constitutional Court refused

Du Plessis and Others v De Klerk and Another1996 (3) SA 850 (CC) (1996 (5) BCLR 658): applied I

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others1998 (2) SA 1115 (SCA): referred to

Gardener v Whitaker1996 (4) SA 337 (CC) (1996 (6) BCLR 775): applied

Ismail v Ismail1983 (1) SA 1006 (A): referred to

Key v Attorney-General, Cape Provincial Division, and Another1996 (4) SA 187 (CC) (1996 (2) SACR 113; 1996 (6) BCLR 788): referred to J

1998 (4) SA p756

Member of the Executive Council for Development Planning and Local Government in the Provincial A Government of Gauteng v Democratic Party and Others 1998 (7) BCLR 855 (CC): dictum in para [31] applied

Mlisane v South African Eagle Insurance Co Ltd1996 (3) SA 36 (C): referred to

Nkabinde v SA Motor & General Insurance Co Ltd 1961 (1) SA 302 (D): referred to B

Rudolph and Another v Commissioner for Inland Revenue and Others1996 (2) SA 886 (A): considered

Rudolph and Another v Commissioner for Inland Revenue and Others1996 (4) SA 552 (CC) (1996 (7) BCLR 889): referred to

S v Pennington and Another1997 (4) SA 1076 (CC) (1997 (10) BCLR 1413): referred to C

Suid-Afrikaanse Nasionale Trust en Assuransie Maatskappy Bpk v Fondo1960 (2) SA 467 (A): referred to

Tsotetsi v Mutual & Federal Insurance Co Ltd1997 (1) SA 585 (CC) (1996 (11) BCLR 1439): referred to.

Statutes Considered

Statutes D

The Constitution of the Republic of South Africa Act 200 of 1993, s 35(3): see Juta's Statutes of South Africa 1996 vol 5 at 1-137

The Constitution of the Republic of South Africa Act 108 of 1996, ss 8(2), (3), 36(1), 39(2), Schedule 6 item 17: see Juta's Statutes of South Africa 1997 vol 5 at 1-172, 1-175, 1-177, 1-215 E

The Marriage Act 25 of 1961: see Juta's Statutes of South Africa 1997 vol 5 at 2-120 et seq.

Case Information

Application for leave to appeal directly to the Constitutional Court against a judgment of the Durban and Coast F High Court (Meskin J) (reported at 1997 (12) BCLR 1716 (D)). The facts appear from the judgment of Chaskalson P.

M S Omar (attorney) for the applicant.

C J Pammenter SC (with him P A C Rowan) for the...