ZACC 44
Judgement Date: 26 November 2019
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday, 26 November 2019 at 10h00, the Constitutional Court handed down judgment in an application for an extension of a suspension period in respect of a declaration of invalidity issued by the Constitutional Court in Ramuhovhi v President of the Republic of South Africa (Ramuhovhi I).
On 30 November 2017, the Constitutional Court in Ramuhovhi I declared section 7(1) of the Recognition of Customary Marriages Act (Act) constitutionally invalid. It ordered that the declaration of constitutional invalidity be suspended for 24 months until 29 November 2019 in order to afford Parliament an opportunity to correct the defect. The Court granted interim relief that a husband and his wives in pre-Act polygamous customary marriages must share equally in the right of ownership of, and other rights attaching to, family property, including the right of management and control of family property; and a husband and each of his wives in each of the marriages constituting the pre-Act polygamous customary marriages must have similar rights in respect of house property. If Parliament failed to correct the defect by passing remedial legislation within the period of suspension, the Court’s order provided that this interim relief would become final.
On 15 October 2019, six weeks before the expiry of the suspension period, the Minister of Justice and Correctional Services (Minister) approached the Court and asked for an extension of the suspension period for 12 months until 30 November 2020. In the alternative, the Minister sought an interim extension while the Court considered the application. The application was not opposed.
In support of the application, the Minister submitted that the Department of Justice and Correctional Services and Parliament have been unable to timeously enact new legislation and it is unlikely they will be able to do so before 29 November 2019. He contended that this was due to the 2019 elections which caused inevitable interruptions and changed the ordinary deadlines for government departments to submit Bills to be passed. The Minister submitted that an extension of 12 months would be sufficient and no prejudice would be suffered by any party should the extension be granted.
This matter was decided without a hearing. In a unanimous judgment penned by Mhlantla J, the Constitutional Court held that it is trite that court orders must be complied with. The Court noted that the reasons furnished for Parliament’s failure to remedy the defect in the legislation were not satisfactory. Significantly the Court observed that extending the period of suspension here will serve no useful purpose. This is because the interim regime flowing from the order of 30 November 2017 would apply whether there is an extension or not.
Moreover, Parliament will still be free to process the Bill regardless of whether there is an extension or not. In these circumstances the court held that a proper case has not been made out for extending the period of suspension.
Accordingly, the Constitutional Court dismissed the application for an extension.
The Full judgment here