Bata v Rawat

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Moorcroft AJ
• Judgment Date: 18 September 2023
• Citation: 2023 JDR 3559 (GJ)
• Hearing Date: 14 August 2023
• Docket Number: 2023-014603
• Court: Gauteng Local Division, Johannesburg

Moorcroft AJ:

Introduction

[3]

This is an application in terms of Rule 43 of the Uniform Rules.

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[4]

The parties entered into a Muslim marriage on 20 December 2016. Section 3(1) of the Marriage Act, 25 of 1961 allowed for the appointment of marriage officers for the purpose of solemnising Muslim marriages but it is common cause that the Muslim marriage between the parties was not so solemnised. [1] No children were born of the marriage but both parties have adult children born from their respective previous marriages.

[5]

They separated on 25 July 2022 and on 17 October 2022 the respondent pronounced One Talaaq-E-Baain, [2] thereby (in his view) terminating the marriage. The respondent was then obliged to maintain the applicant for three months in accordance with Islamic law.

[6]

In February 2023 the applicant instituted an action for divorce claiming a decree of divorce and ancillary relief, including maintenance. The applicant alleges that the marriage was one in community of property in terms of an oral agreement, and in the alternative should it be found that she was married out of community of property that she be entitled to claim an order for redistribution in terms of section 7(3) of the Divorce Act, 70 of 1979.

The applicant relies on the decision in GKR v Minister of Home Affairs and Others [3] where Van der Schyff J declared section 7(3)(a) of the Divorce Act to be inconsistent with the Constitution and invalid to the extent that the provision limits the operation of section 7(3) of the Divorce Act to marriages out of community of property entered into before the commencement of the Matrimonial Property Act, 88 of 1984. The judgement is still to serve before the Constitutional Court in terms of section 172 of the Constitution, 1996.

[7]

The applicant alleges in her papers that the action for divorce in terms of the Divorce Act is “in accordance with” the judgment of the Constitutional Court in Women’s Legal Centre Trust v President of the Republic of South Africa and Others, [4] dealt with in more detail below.

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[8]

Rule 43 applies to ‘matrimonial matters’ and is not limited to divorce litigation in terms of the Divorce Act, and the Rule governs procedure and does not affect the substantive law. It is settled law that the Rule applies to litigation between spouses in a Muslim marriage. [5]

[9]

It was held in AM v RM [6] that pronouncing a Talaaq to effect a divorce according to Muslim law was no obstacle to relief under Rule 43 where the legality of marriage and the legality of the Talaaq were challenged in a pending divorce action. Revelas J said:

“[10]

. . . . . .The fact of a pending divorce action brings the situation within the ambit of ‘matrimonial matters’ and a ‘matrimonial action’ as envisaged in rule 43. The fact that a Muslim divorce has been concluded is no obstacle for the divorce trial, and the constitutional challenge raised therein, to proceed. Once there is a constitutional challenge in the context of relief sought under the Divorce Act, not only the status and effect of the nikkah, [7] but also the status and effect of the talaq, will be under scrutiny. The constitutional challenge pending in the trial court clearly encompasses a challenge to the legal effect of a talaq. By virtue of the main action for divorce, its effect is suspended for all practical purposes. Therefore, when a court has to decide whether or not to grant maintenance pending the outcome of the divorce action, where there is a constitutional challenge to the status of the marriage, it does not matter whether or not the parties were divorced in accordance with Muslim rites or not.”

[10]

In TM v ZJ [8] Mokgohloa J held that it was not necessary for the applicant in a Rule 43 application to present prima facie proof of the validity of the marriage and that the entitlement to maintenance pendente lite arises from a general duty of a husband to support his wife and children. [9] An applicant is not precluded from obtaining Rule 43 relief by the fact that a Talaaq was pronounced. The validity of the Talaaq would be determined at trial.

[11]

In SJ v SE [10] the Court rejected an in limine argument that the Muslim marriage had

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been terminated by a Talaaq and that as a result there was no ‘matrimonial matter’ before the Court and therefore Rule 43 relief was not competent. The legal effect of the Talaaq was in dispute and was an issue for determination in the pending trial. Rule 43 was aimed at relief pendente lite and the Court was indeed able to grant such relief and leave the legal effect of the Talaaq for determination by the trial court.

The Talaaq was issued after the matrimonial action was instituted. The fact that the respondent sought to oust the jurisdiction of the Court by issuing a Talaaq weighed heavily with Modiba J in SJ v SE. [11]

[12]

The recognition of Muslim marriages, and the need to protect women and children [12] and to promote gender equality – all Constitutional [13] imperatives - have been topics of litigation and debate particularly since the advent of Constitutional supremacy and the adoption of the 1993 and the 1996 Constitutions. [14]

[13]

In 2018 the Western Cape Division of the High Court in Women’s Legal Centre Trust v President of the Republic of South Africa and Others issued a declarator that the State was obligated by section 7(2) of the Constitution to adopt legislation recognising and regulating the consequences of marriages solemnised under Muslim law. [15] When the matter came before the Supreme Court of Appeal, [16] the Court declared the Marriage Act and the Divorce Act to be inconsistent with the Constitution [17] in their failure to recognise and regulate the...