By Prof Fareed Moosa

Rule 43 of the Uniform Rules of Court was promulgated in GN R48 GG999/12-1-1965 and has largely remained untouched. In S v S and Another 2019 (6) SA 1 (CC) at para 53, the court held that r 43 requires revision. In MD v MD (GJ) (unreported case no 2021/43212, 2-2-2023) (Bezuidenhout AJ) at para 11, Bezuidenhout AJ labelled the truncated procedures stipulated in r 43 to be ‘discriminatory and … inconsistent with the constitution’. Undoubtedly, this rule serves a useful purpose.

Rule 43 permits a plaintiff wife at the wrong end of the economic wrung to obtain maintenance pendente lite and a cost contribution from her more affluent spouse. Rule 43 does not permit a spouse, as of right and without more, to be maintained in a way ‘sufficient to keep him or her in the same lifestyle as that enjoyed during the marriage’ (BR v DR (WCC) (unreported case no 14189/2022, 17-3-2023) (Kusevitsky J) at para 4). Relief granted under r 43 is predicated on the existence of a reciprocal duty of support (see EW v VH (Women’s Legal Centre Trust as Amicus Curiae) [2023] 2 All SA 404 (WCC) at para 43). On divorce, that duty ceases, except as otherwise provided in legislation (see EH v SH 2012 (4) SA 164 (SCA) at para 12).

Rule 43 is geared to facilitating inexpensive and expeditious relief. These goals are achieved, first, by our courts adopting a robust adjudicative process (see CT v MT and Others 2020 (3) SA 409 (WCC) at para 25(g)). Secondly, while an applicant must deliver a sworn statement in the form of a declaration, a respondent must, within ten days, deliver a sworn reply in the form of a plea. Neither may adduce additional affidavits, save with leave from the court. An applicant who discloses only information favourable to her case acts dishonourably and may be denied relief (see SK v JLK (WCC) (unreported case no 3198/23, 24-3-2023) (Thulare J) at para 17).

Object of article
This article challenges the correctness of the view that a blanket bar exists against appeals to all orders granted in r 43 proceedings. This article demonstrates that a limited right of appeal exists. Furthermore, it is argued that this right is useful in litigation undertaken within the framework crafted in Women’s Legal Centre Trust v President of the Republic of South Africa and Others 2022 (5) SA 323 (CC) at para 86 for the benefit of persons in Sharia (Muslim) marriages.

Ambit of appeals bar
The starting point is s 16(3) of the Superior Courts Act 10 of 2013. In S v S, s 16(3) was declared constitutional. Section 16(3) is an ouster clause constraining judicial review. It reads: ‘Notwithstanding any other law, no appeal lies from any judgment or order in proceedings in connection with an application –

(a) by one spouse against the other for maintenance pendente lite;

(b) for contribution towards the costs of a pending matrimonial action’.

The power of judicial review is crucial to a democratic order and the maintenance of the rule of law, both foundational values engrained in s 1 of the Constitution. That power must be protected against undue erosion through legislative means. For this reason, as an ouster, s 16(3) must be interpreted strictly through the lens of its wording, context, purpose, and s 39(2) of the Constitution (see Chisuse and Others v Director-General, Department of Home Affairs and Another 2020 (6) SA 14 (CC) at para 47).

Section 16(3)(a) and (b) envisage proceedings between spouses. Therefore, it does not bar an appeal against a ruling, such as, in EW v VH, which refuses relief under r 43 on the basis that the protagonists are not spouses owing one another a duty of support. In casu, the majority (per Cloete et Slingers JJ) dismissed an r 43 petition on the basis that the applicant failed to prove the existence of a permanent life partnership in a familial setting arising from her cohabitation with respondent. Section 16(3) does not oust appellate jurisdiction on the issue whether a High Court was correct in finding that an applicant fell beyond r 43’s net. If this ruling is overturned on appeal, then the case would be remitted back for adjudication on the merits of the relief sought under r 43, unless the appeal court deems it expedient to decide same in the interests of the parties’ rights to speedy, cost-effective justice.

A proper interpretation of the word ‘law’ in s 16(3)’s context for purposes of the phrase ‘[n]otwithstanding any other law’ necessitates that it be understood through the prism of constitutional supremacy entrenched in s 2 of the Constitution, and as a foundational value in s 1(c). As a result, the Constitution, as law, falls beyond the ambit of ‘law’ for s 16(3)’s purpose. Put differently, the Constitution’s status as ‘the supreme law’ means that s 16(3) cannot override the Constitution or its provisions. The decision in S v S at para 58 must be understood against this backdrop.

In casu, the court recognised that cases may arise ‘where strict adherence to the rules [of court] is at variance with the interests of justice’ because, on the one hand, a litigant who bears the brunt of an r 43 order is unable to seek variation under r 43(6) owing to the absence of a ‘material change’ in circumstances while, on the other hand, ‘there is a need to remedy a patently unjust and erroneous order’ (para 58). In such ‘exceptional cases’ an appeal would be an appropriate remedy to avert grave injustice that would flow from the r 43 order. The appellate power in these circumstances was sourced in s 173 of the Constitution. It contains a reservoir of inherent judicial powers to administer justice.

Rule 43 and Muslim divorces
No fixed rules can be laid down as to when an appeal ought to be allowed to remedy a patently unjust and erroneous r 43 order. Each application for leave to appeal would have to be decided on its own merits. A real danger exists for substantial injustice to arise from an r 43 order granted erroneously in litigation occurring within the judicially created mechanism in Women’s Legal Centre Trust.

In casu, the apex court declared the common law, the Marriage Act 25 of 1961, and the Divorce Act 70 of 1979 unconstitutional to the extent that they each fail to recognise as valid marriages those solemnised according to Sharia law but not registered as civil marriages. The declarations of invalidity were suspended for 24 months to enable the state to enact appropriate legislation. Pending its enactment, the court formulated the following stopgap measures: First, Muslim marriages subsisting at 15 December 2014 ‘may be dissolved in accordance with the Divorce Act’ (para 86(1.7)). For this purpose, the entire Divorce Act was declared applicable, ‘save that all Muslim marriages shall be treated as if they are out of community of property; except where there are agreements to the contrary’ (para 86(1.7)(a)).

Although the court order indicates that the election to terminate a Muslim marriage under the Divorce Act is conferred on a finite group, the judgment’s spirit supports the view contended for here that the election applies equally to prospective spouses in Muslim marriages generally. The restrictive language used in the order is regrettable.

Secondly, s 7(3) of the Divorce Act will apply to Muslim marriages ‘regardless of when it was concluded’ (para 86(1.7)(b)). Section 7(3) empowers ‘[a] court granting a decree of divorce’ to grant a redistribution of assets ‘on application’ by any spouse. Thirdly, s 12(2) of the Children’s Act 38 of 2005 will apply to ‘a prospective spouse in a Muslim marriage concluded after the date of this order’ (para 86(1.8)). Fourthly, ss 3(1)(a), 3(3), 3(4)(a), (b), and 3(5) of the Recognition of Customary Marriages Act 120 of 1998 apply to prospective Muslim marriages. Fifthly, ‘[i]f administrative or practical problems arise in the implementation of this order’, then ‘any interested person may approach this court for a variation of this order’ (para 86(1.10)).

In Women’s Legal Centre Trust, the court emphasised that the true problem requiring redress is the absence of a dispute resolution mechanism that deals with ‘the consequences of the dissolution of a Muslim marriage, particularly as regards the equitable distribution of assets and the protection of children’ (para 58). Hence, the court fashioned interim relief that addressed these concerns, while at the same time recognising the validity of Sharia marital law. At para 60, it affirmed that the constitutionality of that law was not at issue in casu.

Consequently, the judgment and order in Women’s Legal Centre Trust makes it plain that Muslims can continue to practice Sharia law by, inter alia, solemnising and terminating marriages according to its tenets. Subsequently, Meer J went a step further. In Benjamin and Another v FNB Trust Services (Pty) Ltd NO and Others [2022] 4 All SA 687 (WCC) at para 77, she held that ‘given the practice of Islamic law by South African Muslims since at least the 1790s’, Sharia law is part of South African customary law. Whether the judge’s view will receive widespread judicial endorsement remains to be seen.

The preceding discussion shows that Muslim marriages (nikah) may validly be terminated through a Shariah compliant Talaq or Faskh, or by court order under the Divorce Act. The requirements to lawfully terminate marriage under Sharia law is usefully discussed in Benjamin. No spouse in a Muslim marriage has the right to demand that its dissolution occur pursuant to the civil law in the Divorce Act. South African law embraces freedom of religion and the right of different communities to practice their culture and customs. As a result, there is no impediment to the lawful termination of a marriage by Sharia law, even while civil divorce proceedings are underway. The right to invoke a Sharia divorce is firmly recognised in Women’s Legal Centre Trust.

Irrespective of the process followed to terminate a Muslim marriage and its timing, spouses or former spouses may now claim post-divorce maintenance and asset redistribution under ss 7(2) and (3) of the Divorce Act respectively. This begs the question: Pending such litigation, can relief be granted under r 43 after the marriage was dissolved by Sharia law? I submit ‘no’ – the duty of support underpinning this rule falls away on divorce, including by Sharia law (save for a husband’s duty to maintain his wife during Iddah). If relief is granted under r 43 despite evidence of a lawful dissolution by Sharia law, then that ought, it is submitted, to constitute grounds for an appeal envisaged in S v S. An order under r 43 can be financially crippling and personally devastating. The obligations created must be complied with ‘in form and spirit’ (SS v VV-S 2018 (6) BCLR 671 (CC) at para 23), failing which contempt proceedings may ensue and a contemnor’s imprisonment ordered (see Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA 363 (CC) at paras 27-28).

Finally, the declarations of unconstitutionality in Women’s Legal Centre Trust and the relief crafted by the court changed the landscape of our law of marriage. Women’s Legal Centre Trust brought a decisive break from our disgraceful past in the treatment of Muslim marriages and the consequences flowing from their termination. As a result of this ground-breaking judgment, the basis for the approach followed in AM v RM 2010 (2) SA 223 (ECP) and SJ v SE 2021 (1) SA 563 (GJ) in relation to the application of r 43 as compared to that contended for above in this article has fallen away – with respect, they no longer hold as good precedent.

In both cases, relief was granted under r 43 despite a Talaq occurring. However, in both, the court justified its decision on the basis that a constitutional challenge was raised in the main action, which potentially impacted the Talaq. In AM v RM, Revelas J held that r 43 applied because the constitutional challenge raised would, if upheld, affect ‘the status and effect of the talaq’ (para 10). In SJ v SE, Modiba J held: ‘Treating the Islamic marriage … as dissolved by the issuing of the Talaq … will result in a grave injustice … pending the determination of the divorce action where she seeks to raise constitutional issues’ (para 45).

Prof Fareed Moosa BProc LLB (UWC) LLM (UCT) LLD (UWC) is a legal practitioner and Associate Professor in the Department of Mercantile and Labour Law at the University of the Western Cape.

This article was first published in De Rebus in 2023 (July) DR 17.