Ismail v Ismail

• Jurisdiction: South Africa
• Judge: Rabie CJ, Kotzé JA, Trengove JA, Botha JA and Van Winsen AJA
• Judgment Date: 16 November 1982
• Citation: 1983 (1) SA 1006 (A)
• Hearing Date: 07 September 1982
• Court: Appellate Division

Trengove JA:

This is an appeal against the judgment of VAN REENEN J in the Transvaal Provincial Division upholding an exception by the respondent to the appellant's particulars of claim (as amended and amplified by further particulars) in an action which arose out of the termination of a "marriage" A celebrated under the tenets of the Muslim faith. The central issue in this appeal is whether the proprietary consequences of such a marriage and its termination, according to Muslim custom, are enforceable at law. For convenience I shall refer to the parties as plaintiff and defendant respectively. Plaintiff claimed the following relief:

A. 1.

Payment of the sum of R181000.

2.

Mora interest on the said sum at the rate of 11 per cent per annum a tempore morae until payment thereof.

3.

Costs of suit.

4.

Alternative relief.

Alternatively:

B. 1.

C Payment of the sum of R14600.

2.

Mora interest on the said sum at the rate of 11 per cent per annum a tempore morae until payment thereof.

3.

Delivery of certain two sets of gold jewellery equal to six ounces of gold, alternatively payment of the D sum of R3 500 being the value thereof.

4.

Costs of suit.

5.

Alternative relief.

The averments in the pleadings can be summed up as follows:

(1) The parties reside in Pretoria. They are members of the Muslim faith which is practised by a community of about 300000 E souls within the Republic of South Africa. In terms of the teachings of the Koran and/or the Hadiz (which is a written commentary, interpretation and explanation of the Koran) the Muslim community has accepted as binding upon its members certain customs relating, inter alia, to the solemnization of F marriages between Muslims, the provision of dowry, engagement and wedding gifts; the duty to pay maintenance in consequence of such marriages; the manner in which any such marriage is terminated or annulled, and the proprietary consequences thereof; and the adjudication of the Moulana (a high-ranking ecclesiastical office-bearer of the Muslim creed) of proprietary disputes and/or claims pursuant to such termination G or annulment. The said customs have been in existence for a long time; they are uniformly observed by the Muslim community; and they are reasonable and certain.

(2) The Muslim marriage ceremony, in which the bride does not participate, is usually performed by the Imam, but any adult male Muslim who has adequate knowledge of the ritual (which is H described in detail in the pleadings) is competent to perform the ceremony. The custom relied upon does not require that the person who performs the ceremony be a marriage officer in terms of the Marriage Act 25 of 1961, and the State does not participate in the marriage ceremony in any way.

(3) According to the teachings of the Koran, a husband is allowed to have a maximum of four wives simultaneously, provided he is able

Trengove JA

and willing to treat such wives on a basis of absolute equality in respect of their physical and material requirements and generally in regard to all aspects inherent in the marital relationship. As a result of the stringency of the aforesaid A requirements and the modern economic and social climate, less than 2 per cent of the male Muslim population of South Africa have more than one wife.

(4) It is, furthermore, a custom of the Muslim community in regard to a Muslim marriage:

(a)

that the husband is obliged to maintain his wife on a B reasonable scale, commensurate with his means, during the subsistence of the marriage as well as for the period of Iddat which consists of three full menstrual cycles if the wife is not pregnant at the time of the termination of the marriage;

(b)

that the husband becomes obliged to provide the dowry agreed upon between his family (on his behalf) and his C wife's family (on her behalf), and to deliver the said dowry upon such terms as may have been agreed upon; and

(c)

that the husband donates to his wife two sets of gold jewellery, one at the time of the engagement and the other at the time of the marriage ceremony.

D (5) The custom regulating the termination or annulment of such a marriage is to the following effect. "Termination" refers to the issue of three "talaaqi" by the husband. "Talaaqi" is the plural of "talaaq" which means "I divorce you". If the "talaaq" is communicated three times by the husband to the wife, such communications are irrevocable and the marriage is at an end. "Annulment" refers to the E termination of the marriage by the Moulana in the event of the husband being guilty of certain matrimonial misconduct and refusing or failing to divorce the wife by the issue of "talaaqi". The Moulana is not specifically appointed. He is, as has been mentioned, a high ranking office-bearer of the Muslim F creed who acquires his title and powers by studying and passing an examination at a recognised Muslim ecclesiastical institution.

(6) On 28 March 1976, at Laudium, Pretoria, the parties underwent a ceremony of marriage in accordance with the aforesaid customs by virtue of which a marriage according to Muslim custom ensued between them. At all material times there G existed a tacit consensus between plaintiff and defendant to the effect that their marriage would be monogamous. As to the dowry (see para 4 (b) above) it was agreed that defendant would pay plaintiff a deferred dowry - ie a dowry payable either in the event of defendant's death or on termination or annulment of the marriage - to be the equivalent in South H African currency of 50 Misquals pure gold in Neccan weight, being equal to 7½ ounces (219 grams) of pure gold. Pursuant to the custom mentioned in para 4 (c) above, defendant donated and delivered to plaintiff two sets of gold jewellery equal to six ounces of pure gold. After the marriage ceremony, plaintiff handed the jewellery to the defendant for safekeeping.

(7) During or about April 1980 defendant terminated the marriage by means of three irrevocable "talaaqi". Defendant failed to maintain

Trengove JA

plaintiff for a period of two years and ten months during the subsistence of their marriage and also during the period of Iddat after the marriage had been terminated (see para 4 (a) above). A reasonable rate of maintenance, according to custom and plaintiff's means, amounts to R250 per month. Plaintiff, A accordingly, claimed a sum of R250 per month as arrear maintenance for the aforesaid period of two years and ten months, being a total of R8500, and R1100 as maintenance for the period of Iddat.

(8) On 9 September 1980, at Pretoria, the Moulana, after hearing plaintiff and affording defendant due opportunity to be B heard, gave judgment against defendant in plaintiff's favour for R18100 comprising (a) R8500 in respect of arrear maintenance, (b) delivery of the deferred dowry, namely R5000, (c) payment of the value of the two sets of jewellery, namely R3500, and (d) R1100 maintenance for the period of Iddat. By C Muslim custom this judgment is binding upon defendant. In the event of the Court finding that the Moulana's judgment was not binding on defendant, plaintiff averred (a) that defendant was indebted to her in the sum of R14600 comprised as follows: (i) arrear maintenance R8500; (ii) delivery of deferred dowry R5000; and (iii) maintenance for period of Iddat R1100; and (b) that defendant was obliged to deliver to her the two sets of D gold jewellery (the property of plaintiff), alternatively, to pay to plaintiff the sum of R3500, being the value thereof.

Defendant excepted to the particulars of claim (as amended and amplified by further particulars) on the ground that it does not disclose a cause of action

E "inasmuch as the customs relied upon by the plaintiff are contra bonos mores, unreasonable and in conflict with law, alternatively are in conflict with rules of law which are unalterable by agreement".

In upholding this exception, VAN REENEN J said that, ex facie the pleadings, the marriage between the parties was a F polygamous one; that, apart from statutory exceptions, such marriages have persistently been refused recognition by our Courts on the grounds of public policy; and that to

"... entertain the plaintiff's claims would be tantamount to recognising the illegal union entered into by the parties and G that would be to fly into the face of all authority in this country...".

The question at issue is whether the learned Judge erred in coming to this conclusion.

We are indebted to counsel for their able and well presented arguments in this appeal. In opening the appeal, plaintiff's counsel was at pains to emphasize that it was not part of H plaintiff's case that the alleged conjugal union between the parties constituted a valid civil marriage. He submitted, however, that the Court should not on that account refuse to give effect to proprietary stipulations flowing from the union. This union can obviously not be regarded as a valid civil marriage. Two requirements were lacking. Firstly, under our law, a marriage is the legally recognized voluntary union for life of one man and one woman to the exclusion of all others while it lasts (see Hahlo

Trengove JA

The SA Law of Husband and Wife 4th ed at 28 and the authorities cited in footnote 1)...