Muslim marriage order S v S explained

In 2015 (May) DR 40 ‘Muslim marriages and divorces’ refers to S v S (GJ) (unreported case no 2014/05928, 26-9-2014). The case was enrolled as an unopposed divorce matter and was heard by me in my capacity as an acting judge of this court.

The report states that my order stated that ‘the marriage is dissolved’ after a decree of divorce was sought incorporating the terms of a settlement agreement, in a case involving a marriage according to Islamic rites. The parties had never concluded a civil marriage. The writer concludes that the ‘court obviously recognised that a marriage between the parties did in fact exist’ and ‘this judgment seems to infer … that these types of … marriages should be recognised.’ It goes on to say that this judgment has far reaching implications and ‘is clearly yet another step to formally recognise Muslim marriages, and bring them in line with the South African Constitution.’ It suggests that the order may afford protection to those members of the Muslim community who are financially prejudiced by being unable to share in their spouse’s estates.

The purpose of this letter is to clarify what is in fact a mistake that arose in the transcription of the order given in court on 26 September 2014. The conclusions that are drawn in this article are, therefore, incorrect. De Rebus is requested to publish this letter so as to prevent reliance by future litigants on this order, when seeking relief in cases involving the dissolution of marriages entered into according to Islamic rites.

The litigants were granted an order dissolving their universal partnership. The order incorporated the terms of a settlement agreement entered into between them, but expressly excluded a clause thereof where the plaintiff undertook to approach the court in order to obtain a divorce. This was recorded on the file cover. The order, therefore, expressly avoided providing any relief in relation to the dissolution of the marriage by Islamic rites.

The words ‘the marriage is dissolved’ were then inserted in the first paragraph of the typed order as a result of a typing error. When this came to my attention the order was amended by an order in terms of r 42(1)(b) of the Uniform Rules of Court, and these words were removed from the order. The order given in court did not dissolve an Islamic marriage and does not serve as a precedent for such relief in the High Court.

 Angela Andrews, attorney, Cape Town

Response from the author

The respective legal counsel were only informed by Judge Zeenat Carelse on Monday 14 September 2015 that the judgment was the result of a typing error and was thus being recalled. This was some time after the article had been published.

Megan Harrington-Johnson, attorney, Johannesburg

The briefing of counsel

I was, yet again, alarmed to have read in the press the prominently posted reports of the row, which has erupted in the ongoing class certification hearing in Silicosis and Tuberculosis case about the paucity of black counsel briefed in this hearing and of the divisions it has caused among members of the profession.

I appreciate that, given our history, the previously disadvantaged attorneys and advocates of whom they and their forbears, were severely prejudiced in being able to practice in Apartheid South Africa, and of their concern at the slow progress of transformation of the profession. I do not wish to debate the issue, nor do I wish to comment on the choice of counsel briefed in this particular matter. However, I wish to state my views, which are mine and mine alone.

My first and most prominent consideration in any matter entrusted to me in which counsel has to be briefed, is that it is my legal duty in executing my client’s mandate, to secure as best as I am able, the best possible result for my client. Thus my choice of counsel is based solely on an advocate with whom I can work and in whom I have the confidence and knowledge that he or she is competent to execute the mandate and who will be properly prepared to achieve as far as possible the desired result irrespective of the race, creed, and gender of the advocate concerned.

Although I make no apology for the view expressed above, I will be most interested to hear the views of my colleagues.

 Leslie Kobrin, attorney, Johannesburg

This article was first published in De Rebus in 2015 (Dec) DR 4.