Authored By: Olerato Mokakale
North West University
Case Citation and Basic information
Full case name: Hafiza Ismail Amod v Multilateral Motor Vehicle Accidents Fund.
Citation: Case CCT 4/98; 1998 (4) SA 753 (CC); 1998 (10) BCLR 1207 (CC).
Court: Constitutional Court of South Africa.
Date of the decision: 27 August 1998.
Bench composition: Chaskalson P, Langa DP, Ackermann J, Didcott J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O’Regan J, Sachs J, and Yacoob J.
Introduction
The case falls under private law, specifically law of delict. This case marks the chronological ranking of processes and capacity to handle a matter between the Supreme Court of Appeal and the Constitutional Court of South Africa during constitutional transformation. This case is important as it addresses the development of common law to acknowledge African customary marriages as lawful marriages that allows spouse to claim for loss of support, where in this case the marriage before the court is an Islamic marriage. It also addresses whether the constitutional provisions that include, equality clause and the dignity clause should be applied to common law claims that transpired prior the effect of the Interim Constitution and the Constitution of the Republic of South Africa, 1996.
Facts of the case
In April 1987, the applicant, Hafiza Amod and the deceased got married under the Islamic law. Their marriage was not registered as a civil marriage under the Marriage Act 25 of 1961, but rather there was a contractual agreement where the deceased was compelled to support the applicant until the dissolution of the contract through either a divorce or death. On the 25th of July 1993, due to a motor vehicle collision caused by the negligence of another driver the applicant’s husband passed away.
The applicant claimed for loss of support from the Multilateral Motor Vehicle Accidents Fund in relation to the Multilateral Motor Vehicle Accident Fund Act. The matter was heard in the High Court by Meskin J. The matter was handled as a special case because the entire case depended on whether the Multilateral Motor Vehicle Accident Fund was liable. Prior constitutional democracy, common law was used to determine whether there is liability incurred by the Fund. However, the lack of recognition of customary marriages under common law disregarded the spouses’ claim of loss of support. In cases such as Ismail v Ismail and Suid-Afrikaanse Nasionale Trust en Assuransie Maatskappy Bpk v Fondo, it was held that “marriages concluded in terms of Islamic laws are unlawful under common law because they have the potential of becoming polygamous marriages” (para 4). Hence claims for loss of spousal maintenance and support are not being approved.
The matter was heard in the High Court after the commencement of the Constitution of the Republic of South Africa, 1996, and it was interpreted that the court has no power or authority to remove the common law. The court stated that it had the power to expand law to accommodate common law in a case where there is no common law provision that covers that particular law or matter, whereas the power to remove law was provided to the legislature. The High Court analysis resulted in the dismissal of the claim for loss of support by the applicant. The applicant then saw it necessary to make a direct appeal to the Constitutional Court of South Africa regarding the judgement of the High Court.
Legal Issues
- Whether the Constitutional Court of South Africa has the jurisdiction to hear the appeal on the development of the common law with regards to customary marriages and whether the jurisdiction is in the same scope with the Supreme Court of Appeal?
- Whether the hearing of the appeal that comes from the High Court and is regarding the development of common law is right within the interests of justice?
- Whether common law can be developed in accordance with section 35(3) of the interim constitution and section 39(2) of the Constitution of the Republic of South Africa even though the issue transpired prior the enforcement of the Constitutions.
Applicant’s arguments
The applicant addressed that the laws that were applied prior the constitutional democracy which are the ones that were applied in the case of Ismail v Ismail are longer of any good to the public and are contrary to public policy as there has been a change in public policy. The applicant also addressed that, common law should be developed to align with the objectives of both the Constitutions and the spirit and purport of the Bill of Rights to ensure customary marriages or Islamic marriages are supported. Furthermore, the applicant argued that the law post constitutional democracy should be applied retroactively. This is to ensure that matters that transpired prior the constitutional democracy also get the just relief as well. Lastly, the applicant argued that it is significant and logical for the matter to be heard by the Constitutional Court of South Africa as that will save time and money.
Respondent’s arguments
The respondent argued against the application for a direct appeal, with reasons that there were no guarantees to the change in the judgement of the matter. The respondent argued that the judgement of the matter has no chances of changing even if it gets heard by a court other than the High Court. The respondent further argued that the High Court decision provided that common law acknowledge the claim of loss of support by spouses that were in civil marriages not customary marriages. The respondent was firm on that, the courts were never given authority by the Constitution of the Republic of South Africa 1996 to eliminate already existing common law rules.
Court’s Reasoning and Analysis
The Constitutional Court of South Africa gave a proper breakdown of how common law is to developed. It strongly emphasized that the Supreme Court of Appeal has an inherent jurisdiction to analysis and be involved in the developments of common law to ensure it meets the standards of the transitioning public. However, the authority has to be practiced in consideration of the spirit, purport and objects of the Bill of Rights.
The Court also mentioned that the Supreme Court of Appeal’s scope of jurisdiction also includes deciding if there can be an application of the developed common law to causes of action that transpired prior the enforcement of the Constitution. Chaskalson P emphasized that the Supreme Court of Appeal overly carries the wider jurisdiction in common law matters.
The Court held that “even though it has the jurisdiction to hear direct appeals, that is more over appeals that involve matters and provisions of the Constitution” (para 33). The Supreme Court of Appeal is the first to be approach for common law development matters. “Even though there is co-extensiveness between Supreme Court of Appeal and the Constitutional Court of South Africa, matters have to be heard in the Supreme Court of Appeal before it could be heard in the Constitutional Court” (para 33). That is to ensure that every court plays its role in the development and implementation of law.
Judgement and Ratio Decidendi
The application of appeal to the Constitutional Court was rejected. The rejection was because of the stage of the matter. The matter is not yet on the stage of being heard in the Constitutional Court, however it can be heard in the Supreme Court of Appeal.
The matter before the court is with regards to the development of common law. It is relevant for that matter to be heard in the Supreme Court of Appeal before it could be heard in a Constitutional Court, as the matter is falls within the court’s scope of jurisdiction.
Critical Analysis
This case is the basis of law of procedure with regards to the hierarchy of the jurisdiction. This case ensures that the characteristic of the Constitutional Court of being a court of final instance remains. It also addresses a discrimination between civil marriages and customary marriages, which includes Islamic marriages.
The Supreme Court of Appeal must be given its purpose and honor. The decision ensured that the differences between the jurisdiction of the Supreme Court of Appeal and the Constitutional Court are clearly stated. This was to ensure that the Supreme Court of Appeal is not overlooked and that the Constitutional Court does not find itself handling the matters of the Supreme Court of Appeal.
The court’s reasoning was on that the Constitutional Court cannot hear all matters and that the roles of other courts should be honored. The applicant viewed the matter with the intention of avoiding legal costs and delay in the solving of her matter, which defeats the whole purpose of interest justice. The court understands the applicant’s argument, however, a direct appeal will result in the Constitutional Court overstepping on the roles and jurisdiction of the Supreme Court of Appeal.
Conclusion
The decision of the case cleared the overlapping of jurisdiction between the Supreme Court of Appeal and the Constitutional Court of South Africa. The Supreme Court of Appeal hears matters first before they could be heard by the Constitutional Court, also the Supreme Court of Appeal has the authority to develop the common law to ensure that it aligns with the Constitution. The laws that are applied need to be in accordance with the spirit, purport and objects of the Bill of Rights. Even though the applicant’s direct application was rejected, the issues she brought before court were resolved. The common law was developed to reflect equality and dignity within the multi-cultural public. Customary marriages were recognized as lawful marriages under common law.
Reference(S):
Constitution
- Constitution of the Republic of South Africa.
- Constitution of the Republic of South Africa Act 200 of 1993.
Cases
- Amod v Multilateral Motor Vehicle Accident Fund 1998 (4) SA 753 (CC).
- Ismail v Ismail 1983 (1) SA 1006 (A).
Legislation
- Multilateral Motor Vehicle Accidents Fund Act 93 of 1989.
