South Africa Case Law

R.B v S.A.E.R (2023/014603)

R.B v S.A.E.R (2023/014603) [2023] ZAGPJHC 1041 (18 September 2023)

Court

South Gauteng High Court, Johannesburg

Case number

2023/014603

Judge

Moorcroft

The court held that Rule 43 applies to matrimonial matters involving Muslim marriages, even if the marriage was not solemnised under the Marriage Act and even where a Talaaq has been pronounced. The Divorce Act, as clarified by the Constitutional Court in Women's Legal Centre Trust v President of the Republic of South Africa and Others, does not apply to Muslim marriages concluded after 15 December 2014. Therefore, the applicant cannot rely on section 7(3) of the Divorce Act. However, the common law definition of marriage now includes Muslim marriages, and the duty of support between spouses…

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• Muslim Marriage Recognition
• Maintenance Pendente Lite
• Constitutional Invalidity
• Talaaq Divorce
• Rule 43 Procedure

Moosa NO and Others v Minister of Justice and Correctional Services and Others (CCT251/17)

Moosa NO and Others v Minister of Justice and Correctional Services and Others (CCT251/17) [2018] ZACC 19; 2018 (5) SA 13 (CC); 2018 (10) BCLR 1280 (CC) (29 June 2018)

Court

Constitutional Court

Case number

CCT251/17

Judges

Mogoeng, Zondo, Cachalia, Dlodlo, Froneman, Goliath, Jafta, Khampepe, Madlanga, Petse, Theron

The Constitutional Court confirmed that section 2C(1) of the Wills Act unfairly excluded spouses in Muslim marriages from “surviving spouse” benefits.

• Equality Clause
• Dignity
• Muslim Marriage Recognition
• Testate Succession
• Wills Act
• Discrimination Against Women

Moosa NO and Others v Harnaker and Others (400/17)

Moosa NO and Others v Harnaker and Others (400/17) [2017] ZAWCHC 97; [2017] 4 All SA 498 (WCC); 2017 (6) SA 425 (WCC) (14 September 2017)

Court

Western Cape High Court, Cape Town

Case number

400/17

Judge

Le Grange

The High Court held that section 2C(1) of the Wills Act unfairly excluded spouses in polygynous Muslim marriages and ordered a constitutional reading-in remedy.

• Equality Clause
• Muslim Marriage Recognition
• Reading In Remedy
• Wills Act Interpretation
• Surviving Spouse Definition
• Equality-clause

T.M v Z.J (2195/2015)

T.M v Z.J (2195/2015) [2015] ZAKZDHC 70; 2016 (1) SA 71 (KZD) (2 September 2015)

Court

Kwazulu-Natal High Court, Durban

Case number

2195/2015

Judge

Mokgohloa

The court held that the applicant, married under Islamic law, is entitled to seek interim relief under rule 43, including maintenance pendente lite, custody, and contribution to legal costs, despite the marriage not being registered under the Marriage Act and the respondent's pronouncement of talaq. The court found that rule 43 is designed to provide interim relief in matrimonial actions, and its scope includes cases where the existence or validity of the marriage is disputed. The imposition of restitutionary conditions, as suggested by the respondent, was rejected as antithetical to the purp…

Source excerpt

• Muslim Marriage Recognition
• Maintenance Pendente Lite
• Rule 43 Interim Relief
• Constitutional Challenge To Marriage Act
• Custody And Access
• Contribution To Legal Costs

H v D (18141/09)

H v D (18141/09) [2009] ZAWCHC 178; 2010 (4) BCLR 362 (WCC) ; [2010] 2 All SA 55 (WCC) (18 November 2009)

Court

Western Cape High Court, Cape Town

Case number

18141/09

Judge

YEKiSO

The court found that the applicant was ordinarily resident in Cape Town at the time of instituting the action and launching the Rule 43 application, thus establishing jurisdiction. The court interpreted the term 'spouse' in Rule 43 to include parties married under Islamic personal law, relying on constitutional principles and recent case law that recognise Muslim marriages for certain legal purposes. The applicant was therefore entitled to seek interim maintenance and a contribution towards costs pending the matrimonial action, even though the validity of the marriage was disputed and subject…

Source excerpt

• Muslim Marriage Recognition
• Maintenance Pendente Lite
• Contribution Towards Costs
• Rule 43 Application
• Constitutional Rights
• Jurisdiction In Matrimonial Matters

AM v RM (2154/08)

AM v RM (2154/08) [2009] ZAECPEHC 31 (29 May 2009)

Court

Eastern Cape High Court, Port Elizabeth

Case number

2154/08

Judge

E Revelas

The court held that an applicant married under Islamic law was not barred from Rule 43 interim relief, and granted maintenance and a costs contribution.

• Interim Maintenance
• Muslim Marriage Recognition
• Rule 43 Procedure
• Constitutional Challenge
• Contribution To Legal Costs
• Rule-43

Daniels v Campbell N.O and Others (1646/2001)

Daniels v Campbell N.O and Others (1646/2001) [2003] ZAWCHC 41 (1 September 2003)

Court

Western Cape High Court, Cape Town

Case number

1646/01

Judge

Binns-Ward AJ

The High Court provisionally condoned a late Rule 18 application and issued a partly positive certificate for a conditional direct appeal to the Constitutional Court.

• Intestate Succession
• Muslim Marriage Recognition
• Maintenance Of Surviving Spouses
• Statutory Interpretation
• Constitutional Invalidity
• Reading In Conformity