D[....] v S[....] (CCT18/06) [2006] ZACC 25; 2006 (8) BCLR 869 (CC) (23 May 2006)

D[....] v S[....] (CCT18/06) [2006] ZACC 25; 2006 (8) BCLR 869 (CC) (23 May 2006)

The Constitutional Court refused the application for leave to appeal on the basis that the constitutional issues concerning the recognition of Muslim marriages and the consequences of divorce were not pleaded or argued in the High Court. The High Court correctly decided the matter on the evidence and arguments presented, and there were no prospects of success on appeal. Furthermore, the lengthy delay in lodging the application for leave to appeal was not adequately explained or justified, and condonation was not warranted. The Court also held that it should not be the court of first instance on the broader constitutional issues, which require input from interested parties and bodies.

Citation
[2006] ZACC 25
Parties
Applicant: N[....] D[….]; Respondent: N[....] A[....] S[....]
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
23 May 2006
Case Number
CCT18/06
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court After Refusal by Supreme Court of Appeal.
Outcome
Application for leave to appeal refused.
Judges
Langa, Moseneke, Madala, Mokgoro, Nkabinde, O'Regan, Sachs, Skweyiya, Van der Westhuizen, Yacoob
Legal Topics
Recognition of Muslim Marriages, Universal Partnership, Leave to Appeal, Condonation of Late Filing
Family and Children Civil Procedure Recognition of Muslim Marriages Universal Partnership Leave to Appeal Condonation of Late Filing

Case Brief

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Parties

N[....] D[….]

Applicant

N[....] A[....] S[....]

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court After Refusal by Supreme Court of Appeal.

Legal Issues

  1. 1 Whether the applicant is entitled to leave to appeal to the Constitutional Court after refusal by the Supreme Court of Appeal.
  2. 2 Whether the High Court should have considered constitutional issues regarding the recognition of Muslim marriages and developed the common law accordingly.
  3. 3 Whether the delay in lodging the application for leave to appeal should be condoned.

Ratio Decidendi

The Constitutional Court refused the application for leave to appeal on the basis that the constitutional issues concerning the recognition of Muslim marriages and the consequences of divorce were not pleaded or argued in the High Court. The High Court correctly decided the matter on the evidence and arguments presented, and there were no prospects of success on appeal. Furthermore, the lengthy delay in lodging the application for leave to appeal was not adequately explained or justified, and condonation was not warranted. The Court also held that it should not be the court of first instance on the broader constitutional issues, which require input from interested parties and bodies.

Court Disposition

Application for leave to appeal refused.

Orders

  • The application for leave to appeal is refused.