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South Africa Judgment

South Gauteng High Court, Johannesburg

Sabeeha v Ali (2023/062743) [2024] ZAGPJHC 1220 (15 November 2024)

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Source document

01

Holding and result

The court found that, following the dissolution of the marriage by Talaq, it lacked jurisdiction to entertain the rule 43 application. Furthermore, the court held that rule 43 orders are not appealable, as established by Section 16(3) of the Superior Courts Act and confirmed by Constitutional Court precedent. The applicant's new arguments and case law were considered but did not alter the legal position. Leave to appeal was therefore refused.

Court disposition

Leave to appeal is refused with costs, including costs of counsel on scale B.

Orders

  • Leave to appeal is refused.
  • Applicant to pay costs, including costs of counsel on scale B.

02

Material facts

Parties

Essop Sabeeha

Applicant Counsel: Mr S Dollie

Haffejee Ziyaad Ashraf Ali

Respondent Counsel: Adv. A Saldulker

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Against Judgment and Order

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant's attorney raised new grounds for leave to appeal, supported by relevant case law, arguing that the court should have jurisdiction to entertain the rule 43 application despite the dissolution of marriage by Talaq. The attorney contended that the previous counsel failed to raise these issues during the initial application.
Respondent
The respondent's counsel argued that the marriage was dissolved by Talaq, thus depriving the court of jurisdiction over the rule 43 application. She further submitted that rule 43 orders are not appealable, relying on Section 16(3) of the Superior Courts Act 10 of 2013 and the Constitutional Court judgment in S v S and Another 2019(6) SA 1 (CC).

05

Court’s reasoning

  1. 01

    Section 16(3) of the Superior Courts Act 10 of 2013

    Rule 43 orders are not appealable.

  2. 02

    S v S and Another 2019(6) SA 1 (CC)

    The dissolution of marriage by Talaq removes the court's jurisdiction over rule 43 applications.

06

Ratio, limits and disposition

Ratio decidendi

The court found that, following the dissolution of the marriage by Talaq, it lacked jurisdiction to entertain the rule 43 application. Furthermore, the court held that rule 43 orders are not appealable, as established by Section 16(3) of the Superior Courts Act and confirmed by Constitutional Court precedent. The applicant's new arguments and case law were considered but did not alter the legal position. Leave to appeal was therefore refused.

Obiter and limits

  • The applicant's attorney raised important issues that were not previously canvassed, but these could not overcome the statutory bar on appeals from rule 43 orders.
  • Counsel for the respondent correctly relied on both statutory and Constitutional Court authority to support the non-appealability of rule 43 orders.

Court disposition

Leave to appeal is refused with costs, including costs of counsel on scale B.

  • Leave to appeal is refused.
  • Applicant to pay costs, including costs of counsel on scale B.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment text

The complete available source text.

Source document

South Gauteng High Court, Johannesburg

Judgment

[2024] ZAGPJHC 1220

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION,

JOHANNESBURG

CASE NO: 2023-062743

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

In the matter between:

ESSOP

SABEEHA

APPLICANT And

HAFFEJEE

ZIYAAD ASHRAF ALI

RESPONDENT

JUDGMENT

MABESELE J:

[1] This is an application for leave to appeal against the whole of my judgement and order. The judgement and order was granted in favor of the respondent due to persuasive argument by the respondent’s Counsel that, since the marriage between the applicant and respondent was dissolved by the issuance of a Talaq, the court has no jurisdiction to entertain rule 43 application. The applicant’s

counsel, who received a brief on the eleventh hour to argue the applicant’s case, was unable to persuade me otherwise.

[2] The applicant’s attorney has raised important issues, both in his grounds for leave to appeal and during argument. He substantiated his argument with relevant case law. Regrettably, some of these issues were not raised by his predecessor during rule 43 application. In any event the respondent’s counsel argued, rightly, that rule 43 orders are not appealable. In this regard, she sought reliance on numerous cases, including the Constitutional Court judgement of S V S and Another 2019(6) SA 1(CC) and Section 16(3) of the Superior Court Act 10 of 2013.

Having considered the argument and submissions made by both counsel, I come to the following conclusion.

1. Leave to appeal is refused with costs, including the costs of counsel on scale B.

M.M MABESELE

(Judge of the High Court Gauteng Local Division)

Appearances

On behalf of the Applicant: Mr S Dollie From: Shaheed Dollie Inc. Attorneys On behalf of the Respondent: Adv. A Saldulker Instructed by: N. Moola Incorporated Date of Hearing: 14 November 2024 Date of Judgment: 15 November 2024

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

S v S and Another 2019(6) SA 1 (CC)

Case cited

Section 16(3) of the Superior Courts Act 10 of 2013

Legislation

Legislation referenced in the available case record.

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