Case CCT 24/21
 ZACC 23
Hearing Date: 05 August 2021
Judgement Date: 28 June 2022
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 28 June 2022 at 12h00, the Constitutional Court handed down judgment in an application by the Women’s Legal Centre Trust (WLCT) to confirm an order of the Supreme Court of Appeal. The order declared the Marriage Act 25 of 1961 (Marriage Act), the Divorce Act 70 of 1979 (Divorce Act) and certain provisions of the Divorce Act to be inconsistent with sections 9, 10, 28 and 34 of the Constitution, in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) as being valid for all purposes in South Africa, and to regulate the consequences of such recognition.
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 this Court declines 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 Supreme Court of Appeal.
In the High Court, the WLCT asked the 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 months of the date of the order (the composite relief). In the alternative, the WLCT asked the Court to declare the Marriage Act and the Divorce Act unconstitutional to the extent that they fail to recognise Muslim marriages (the alternative relief).
The High Court granted the composite 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.
Aggrieved by the decision of the High Court, the President of the Republic of South Africa and the Minister of Justice and Correctional Services (collectively, the State parties) appealed to the Supreme Court of Appeal. The issues before the Supreme Court of Appeal were (i) whether the state is 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 Supreme Court of Appeal held that the non-recognition of Muslim marriages violates 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 Supreme Court of Appeal found that it is Parliament that has the responsibility to make laws; the President and Cabinet merely have 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 Supreme Court of Appeal 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.
Before this Court, the WLCT asked for confirmation of the Supreme Court of Appeal’s order that the impugned provisions are inconsistent with sections 9, 10, 28 and 34 of the Constitution insofar as they fail to recognise Muslim marriages as valid marriages. The State parties did not oppose the confirmation application and conceded that the Marriage Act and the Divorce Act are inconsistent with sections 9, 10, 28 and 34 of the Constitution. However, the State parties opposed the WLCT’s application for leave to appeal and the conditional cross appeal. They submitted that the state is under no obligation – in terms of the Constitution or international law - to enact legislation, and that ordering the state to enact legislation would breach the doctrine of the separation of powers. On retrospectivity, the State parties submitted that the retrospective effect of the order had to be limited to avoid disruptions.
Lajnatun Nisaa-Il Muslimaat (Association of Muslim Women of South Africa) opposed the confirmation application. They submitted that, because of certain concessions made by the President during proceedings before the Supreme Court of Appeal, that Court did not properly determine whether the Marriage Act and the Divorce Act were indeed unconstitutional. Lajnatun Nisaa-Il Muslimaat submitted that the Marriage Act and the Divorce Act do not discriminate against Muslim women and are not unconstitutional.
The South African Human Rights Commission (SAHRC) submitted that the state is under a legal obligation (in terms of both domestic and international law) to recognise and regulate Muslim marriages by means of legislation. In relation to South Africa’s obligations under international law, the SAHRC submitted that the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, the SADC Gender and Development Protocol, the Convention on the Elimination of All Forms of Discrimination Against Women and the International Covenant on Civil and Political Rights all obligate the state to recognise all de facto marriages, including Muslim marriages, and to regulate them by means of legislation. In relation to South Africa’s domestic obligations, the SAHRC submits that section 7(2) of the Constitution places a positive obligation on the state to respect, protect, promote and fulfil fundamental rights and that it simply would not be reasonable for the state to seek to fulfil the rights in the Bill of Rights in relation to Muslim marriages in the absence of the enactment of legislation to that effect.
The Commission for Gender Equality (CGE) was admitted as an intervening party. They supported the confirmation application but went further to submit that the section 7(2) issue had to be determined directly, even if this Court upholds the declaration of invalidity. The CGE submitted further that determining the section 7(2) issue is the only effective relief that will protect the rights of women and children in Muslim marriages. Similarly to the WLC, 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.
Muslim Assembly Cape was admitted as the first amicus curiae. They 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. They supported retrospectivity, on the basis that it will ensure that Muslim women will be provided with recourse in relation to the patrimonial consequences of divorce. They further submitted that it is not possible to regulate the consequences of Muslim marriages contractually. While Sharia law addresses and encourages marriage contracts, Muslim Assembly Cape submitted that 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 United Ulama Council of South Africa was admitted as the second amicus curiae. They contended that the state is positively obliged to enact comprehensive and stand-alone 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. They argued inter alia that section 15(3) of the Constitution, which expressly provides that the right to freedom of religion does not prevent legislation from recognising marriages concluded under religious law, constitutionally empowers the state to introduce legislation.
In a unanimous judgment penned by Tlaletsi AJ, the Constitutional 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 Court held that there is no justification for the continuing non-recognition of Muslim marriages. In addition to this, the Court held that the impugned provisions also infringe 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 Court held that its order of constitutional invalidity ought to apply to all unions validly concluded as a marriage in terms of Sharia law and subsisting at the date when the WLCT instituted its application in the High Court (15 December 2014). This extends the extent of retrospectivity that was ordered by the Supreme Court of Appeal, but the Court did not accede to the full extent of unlimited retrospectivity that the WLCT requested. The Court found that it was necessary to strike a balance, given that the rights of third parties could be implicated by the relief if full retrospectivity was granted. The Court stated that limited retrospectivity would ensure that third parties will effectively have been placed on notice, because from the date the action 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 Court determined was whether the state is obliged, in terms of section 7(2), to enact legislation recognising and regulating Muslim marriages. On this, the Court held that the applicants failed to establish, in the circumstances of this matter, that section 7(2) places an obligation on the state to enact legislation specific to Muslim marriages. The Court reasoned that here the state has legislated, albeit in a defective fashion, and, as such, it is not appropriate to make a finding that the state is obliged by section 7(2) to enact standalone legislation on Muslim marriages. Instead, the appropriate course was to challenge the legislation, rather than allege that the state has failed to fulfil a duty to legislate.
The Full judgment here