Hafiza Ismail Amod (born Peer) v Multilateral Motor Vehicle Accidents Fund

The applicant married the deceased in accordance with Islamic law on 18 April 1987. This marriage was not registered as a civil marriage under the Marriage Act 25 of 1961. Under Islamic law, the husband was obliged to maintain and support the applicant during the marriage and did so. The deceased died in a motor vehicle accident on 25 July 1993 caused by the negligence of another driver. The applicant claimed damages from the Multilateral Motor Vehicle Accidents Fund for loss of support arising from her husband's death. The accident occurred before the interim Constitution came into force (27 April 1994), the action was instituted during the interim Constitution, and was heard and decided after the 1996 Constitution came into effect. The High Court (Meskin J) dismissed the claim, applying the common law rule from Fondo which held that only spouses in lawful marriages (not polygamous or potentially polygamous unions) could claim damages for loss of support. Islamic marriages were considered potentially polygamous and thus not lawful marriages at common law.

• Whether the Constitutional Court or Supreme Court of Appeal has jurisdiction to hear an appeal in a matter involving the development of common law to recognize claims by spouses married according to Islamic law
• Whether the common law should be developed under section 35(3) of the interim Constitution or section 39(2) read with section 8(3) of the 1996 Constitution to allow a claim for loss of support by a spouse married according to Islamic law
• Whether constitutional provisions can apply retroactively to causes of action arising before the Constitution came into force
• Whether it is in the interests of justice for an appeal involving development of common law to be brought directly to the Constitutional Court rather than first to the Supreme Court of Appeal
• Whether section 35(3) of the interim Constitution can be relied upon for common law claims arising before that Constitution came into force
• The proper interpretation of item 17 of Schedule 6 of the 1996 Constitution

The application for leave to appeal directly to the Constitutional Court from the decision of Meskin J in the Durban and Coast High Court was refused. No order as to costs was made. The matter was to proceed to the Supreme Court of Appeal in the first instance.

Where a constitutional matter involves the development of the common law, and both the Constitutional Court and the Supreme Court of Appeal have jurisdiction to decide the matter, the Constitutional Court ought not ordinarily exercise its jurisdiction without the matter having first been dealt with by the Supreme Court of Appeal. The Supreme Court of Appeal has jurisdiction to develop the common law in accordance with section 35(3) of the interim Constitution and section 39(2) of the 1996 Constitution, and this jurisdiction necessarily includes the power to interpret those constitutional provisions to the extent necessary to determine whether and how the common law should be developed. The jurisdiction of the Supreme Court of Appeal to interpret constitutional provisions is incidental to its jurisdiction to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights.

The Court expressly left open several important questions: (1) Whether there are exceptional circumstances in which the rule that the Constitution does not apply to causes of action arising before it came into force would not be applicable (a question left open in Du Plessis and Tsotetsi); (2) Whether section 35(3) of the interim Constitution can be relied upon for common law claims arising before that Constitution came into force; (3) Whether the difference in wording between section 39(2) of the 1996 Constitution and section 35(3) of the interim Constitution has any material effect on how the power to develop common law should be exercised; (4) Whether the development of common law under section 35(3) and section 39(2) should be done consistently with section 8(2) and 8(3) of the 1996 Constitution; (5) The precise scope of the inherent power to develop common law vested in the Constitutional Court by section 173 of the 1996 Constitution. The Court noted that when a constitutional matter turns on direct application of the Constitution and does not involve development of common law, considerations of cost and time may make direct appeal to the Constitutional Court desirable, but distinguished such cases from those involving common law development.

This case establishes important principles regarding the relationship between the Constitutional Court and the Supreme Court of Appeal in matters involving the development of common law in constitutional contexts. It clarifies that even where the Constitutional Court may have jurisdiction over a constitutional matter, considerations of judicial comity, institutional expertise, and the interests of justice may require that the Supreme Court of Appeal hear the matter first, particularly in cases involving development of the common law. The judgment also addresses the scope of the Supreme Court of Appeal's jurisdiction to interpret constitutional provisions incidental to its common law development function. While the case did not decide the substantive issue of whether Islamic marriages should be recognized for purposes of loss of support claims, it left open the important question of whether common law development under the Constitution could apply to causes of action arising before the Constitution came into force. The case also touches on fundamental issues of recognition of religious marriages and the intersection of Islamic law with South African common law, issues that would later be addressed in subsequent litigation and legislation.