Sabeeha v Ali (2023/062743) [2024] ZAGPJHC 1220 (15 November 2024)
- Citation
- [2024] ZAGPJHC 1220
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- M MABESELE
- Case number
- 2023/062743
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- M MABESELE
- Case number
- 2023/062743
On this page
Professional case brief
Research organized from the available case record
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 DollieHaffejee Ziyaad Ashraf Ali
Respondent Counsel: Adv. A Saldulker03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Against Judgment and Order
04
Questions and positions
Legal issues
- 01
Whether the court has jurisdiction to entertain a rule 43 application after dissolution of marriage by Talaq.
- 02
Whether rule 43 orders are appealable under South African law.
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
Legal principles
- 01
Section 16(3) of the Superior Courts Act 10 of 2013
Rule 43 orders are not appealable.
- 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 reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
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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