PS v NL (88081/2016) [2020] ZAGPPHC 551 (19 June 2020)

Parties

Procedural Posture

Interlocutory Application / Application for Separation of Issues Prior to Trial in Divorce Proceedings

Legal Issues

1. 1 Whether the parties were married in accordance with customary law under section 3(1) of the Recognition of Customary Marriages Act.
2. 2 If a customary marriage existed, whether the respondent was married to another man at the time and whether that prior marriage was dissolved by a decree of divorce.
3. 3 Whether the applicant is entitled to a declaratory order that no customary marriage exists between himself and respondent.

Ratio Decidendi

The court found that the separation of issues regarding the validity of the customary marriage and the existence of a prior marriage is appropriate and convenient under Rule 33(4). The issues are sufficiently distinct to be determined first, which will provide direction to the remainder of the case and may obviate the need for evidence on other matters, thereby saving time and costs. The court rejected the respondent's argument that the issues are inextricably linked, noting that division of assets and universal partnership claims can be held over and are not prejudiced by the separation. The court also held that any constitutional challenge to section 8 of the Act and claims for...

Court Disposition

Application for separation of issues granted; respondent ordered to pay costs.

Orders

• The following questions of law and fact shall be determined first and separately: (1) Was the plaintiff married to the first defendant on 17 July 2012 at Phuthaditjhaba, Free State in accordance with customary law and section 3(1) of the Act? (2) If so, was the plaintiff as at 17 July 2012 already married to another...
• All remaining questions of law and fact, including the plaintiff's intended constitutional challenge to section 8 of the Act, are stayed and postponed sine die pending determination of the separated issues.