Article written by S’negugu Dlamini, checked and released by Jordan Dias, Associate at Schindlers Attorneys.
19 August 2022
On 28 June 2022, the Constitutional Court (“Con Court”) handed down judgment in an application brought by the Women’s Legal Centre Trust (“WLCT”) to confirm an order of the Supreme Court of Appeal (“SCA”). The order legally recognises Muslim marriages and declares certain sections of the Marriage Act 25 of 1961 (“the Marriage Act”) and the Divorce Act 70 of 1979 (“the Divorce Act”) unconstitutional in that they fail to recognise marriages solemnised in accordance with Sharia law as being valid for all purposes in South Africa, and to regulate the consequences of such recognition.
Our courts have heard various matters that have further highlighted the need for the recognition of Muslim marriages and the impact on Muslim marriages as a result of being excluded from complete legal protection. Prior to the Con Court judgment, Muslim married women were vulnerable when dealing with divorce and inheritance.
High Court Decision
The WCLT brought the application, which began in the Western Cape High Court, seeking the High Court to direct the President and Cabinet to prepare, initiate, enact, and bring into operation legislation providing for the recognition and regulation of Muslim marriages within 12 (Twelve) months of the date of the order (“the First Relief”). In the alternative, the WLCT asked the Court to declare the Marriage Act and the Divorce Act unconstitutional to the extent that they failed to recognise Muslim marriages (“the Alternative Relief”).
The High Court granted the First Relief and held that the President and Cabinet’s failure to enact legislation to recognise and regulate Muslim marriages meant that they had failed to fulfil their constitutional obligations in terms of section 7(2) of the Constitution.
Supreme Court of Appeal
Aggrieved by the decision of the High Court, the President of the Republic of South Africa and the Minister of Justice and Correctional Services (hereinafter collectively referred to as “the State”) appealed to the SCA. The issues before the SCA were: (i) whether the State was obligated in terms of the Constitution to enact legislation that regulates and recognises Muslim marriages, (ii) whether the provisions in question were inconsistent with section 15 of the Constitution and (iii) whether the interim relief should have applied retrospectively.
The SCA held that the non-recognition of Muslim marriages violated the constitutional rights of Muslim women and children, and that the impugned provisions are inconsistent with sections 9, 10, 28 and 34 of the Constitution. However, the SCA found that it was Parliament that had the responsibility to make laws; the President and Cabinet merely had a discretionary power to prepare and initiate legislation. Therefore, ordering the President and Cabinet to enact legislation on the basis of section 7(2) alone would be an infringement of the separation of powers doctrine.
The SCA held, further, that retrospective relief backdated to 27 April 1994 , would have profound unforeseen circumstances and so it, therefore, limited retrospectivity to the date of its order.
Submissions to the Constitutional Court
Before the Con Court, the WLCT asked for confirmation of the SCA’s order that the challenged provisions were inconsistent with sections 9, 10, 28 and 34 of the Constitution insofar as they failed to recognise Muslim marriages as valid marriages. The State did not oppose the confirmation application and conceded that the Marriage Act and the Divorce Act were inconsistent with sections 9, 10, 28 and 34 of the Constitution.
In addition to the confirmation application, the WLCT’s application also included (i) a conditional cross appeal, in terms of which they asked that if the Con Court declined to confirm the order of constitutional invalidity, it instead order that the State is under a constitutional obligation to enact legislation to recognise and regulate Muslim marriages; and (ii) an appeal against the limited retrospective relief granted by the SCA.
In opposing the WLCT’s application for leave to appeal and the conditional cross appeal, the State submitted that they were under no obligation, in terms of the Constitution or international law, to enact legislation, and that ordering the State to do so would breach the doctrine of the separation of powers. On retrospectivity, the State contended that the retrospective effect of the order had to be limited to avoid disruptions.
The South African Human Rights Commission (“SAHRC”) submitted that the State is obliged, in terms of both domestic and international law, to recognise and regulate Muslim marriages by means of legislation.
The Commission for Gender Equality (“CGE”), admitted as an intervening party, supported the confirmation application but submitted that the section 7(2) issue had to be determined directly, even if the Con Court upheld the declaration of invalidity. The CGE submitted, further, that the determination of the section 7(2) issue was the only effective relief that would protect the rights of women and children in Muslim marriages. Similarly, to the WLCT, the CGE submitted that the relief should be fully retrospective to 27 April 1994. In their view, retrospectivity would not have a disruptive or prejudicial effect on third parties and is not contrary to the separation of powers doctrine.
The Muslim Assembly Cape (“MAC”), who was admitted as the first amicus curiae, submitted that Muslim marriages must be recognised in their own right, without the need for a civil marriage, in the same way that African customary law marriages are recognised in their own right. MAC supported retrospectivity on the basis that it would ensure that Muslim women will be provided with legal remedies in relation to the patrimonial consequences of divorce. MAC submitted that while Sharia law addresses and encourages marriage contracts, they are not the norm, either because women do not have the means to conclude them, or because they lack the requisite bargaining power to get their prospective spouses to conclude contracts.
The second amicus curiae was the United Ulama Council of South Africa who contended, inter alia, that the State was positively obliged to enact legislation in terms of section 7(2) of the Constitution, read with section 15(3), to recognise Muslim marriages and their consequences, for all purposes. Arguably, section 15(3) expressly provides that the right to freedom of religion does not prevent legislation from recognising marriages concluded under religious law and which constitutionally empowers the State to introduce legislation.
Constitutional Court Judgment
In a unanimous judgment penned by Tlaletsi AJ, the Con Court found that the impugned legislation differentiated between people who marry in terms of the Marriage Act and people who marry according to Muslim rites, especially women, and that this differentiation amounts to unfair discrimination because it deprives Muslim women and their children of the remedies and protections that they would otherwise be afforded if the marriage had been concluded in terms of the Marriage Act.
The Con Court held that there is no justification for the continuing non-recognition of Muslim marriages. The Con Court, further, held that the impugned provisions also infringed the rights to dignity, access to courts and the principle of the best interests of the child.
For these reasons, the Court confirmed the order of constitutional invalidity and held that the Marriage Act and the Divorce Act are inconsistent with sections 9, 10, 28 and 34 of the Constitution insofar as they do not afford Muslim marriages recognition.
The Con Court stated that its order of constitutional invalidity ought to apply to all unions validly concluded as a marriage in terms of Sharia law and existing at the date when the WLCT instituted its application in the High Court, being 15 December 2014. Although the Con Court did not accede to the full extent of unlimited retrospectivity, that WCLT requested, it did extend the extent of retrospectivity that was ordered by the SCA. Given that the rights of third parties could be implicated by the relief if full retrospectivity was granted, it was necessary for the Con Court to strike a balance. Limited retrospectivity would ensure that third parties will effectively have been placed on notice in that, from the date that the application was launched, they could have known that relief was being sought on behalf of the class of persons to whom relief will be made available.
The final issue the Con Court determined was whether the State is obliged, in terms of section 7(2), to enact legislation recognising and regulating Muslim marriages. In the circumstances, the WCLT failed to establish that section 7(2) places an obligation on the State to enact legislation specific to Muslim marriages. It was thus not appropriate for the Con Court to make a finding in this regard. Instead, the appropriate course was to challenge the legislation, rather than allege that the State had failed to fulfil a duty to legislate.
Legal Implications of the Con Court Judgment and Interim Relief
The SCA Acting Justice Pule Tlaletsi, stated:
“Women in Muslim marriages must be fully included in the South African community so they can enjoy the fruits of the struggle for human dignity, equality and democracy.”
The Con Court judgment has far-reaching implications for the lives of women in Muslim marriages and their children.
Parliament has 24 months to decide whether to amend both the Marriage Act and the Divorce Act or whether to adopt legislation that gives sufficient recognition to Muslim marriages. In the meantime, the Divorce Act applies to Muslim marriages that existed on or were concluded after 15 December 2014, as well as those that were terminated in terms of Sharia law by 15 December 2014 where the legal proceedings are ongoing.
These marriages are treated as marriages out of community of property for purposes of the Divorce Act, unless there are agreements between the spouses that show otherwise. Although Muslim marriages are viewed as marriages out of community of property, the Con Court ordered that a spouse to a Muslim marriage is allowed to approach a court to ask that the assets of the other spouse be divided in a manner that it decides to be fair regardless of when the marriage was concluded. Where the husband has more than one wife, the court will have to consider all relevant factors in determining what would be a fair distribution.
In practical terms, what the interim order means is that women who divorced prior to 15 December 2014, in terms of Sharia law, and who have not approached the court regarding what they see as an unfair distribution of assets, have no recourse.
The interim order is not a permanent solution. However. it is ‘a step in the right direction’. Whether the matter will be referred back to the court will depend entirely on whether the State complies the order to amend the existing legislation or enact new legislation within 24 months.
In coming to its decision that Muslim marriages should be recognised and protected under South African law, the apex court found that the Marriage Act and Divorce Act discriminates unfairly and unjustifiably against women in Muslim marriages based on religion, marital status and gender.