Application for the extension period for the declaration of constitutional invalidity of s 7(1) of the Recognition of Customary Marriages Act

March 1st, 2020

Minister of Justice and Correctional Services v Ramuhovhi and Others (CC) (unreported case no CCT 194/16, 26-11-2019) (Mhlantla J (Khampepe ADCJ, Froneman J, Jafta J, Madlanga J, Majiedt J, Mathopo AJ, Theron J, Tshiqi J and Victor AJ))

The Constitutional Court (CC) suspended an application by the Minister of Justice and Correctional Services, for an extension period for the declaration of constitutional invalidity of s 7(1) of the Recognition of Customary Marriages Act 120 of 1998 (the Act) to afford Parliament an opportunity to correct the defect. On 15 October 2019, six weeks before the expiry of the suspension period, the Minister of Justice and Correctional Services approached the CC seeking an extension of the suspension period for another 12 months, until 30 November 2020.

In the alternative, the minister asked for an extension while the CC was considering and determining whether the extension should be granted. The application was not opposed. In that regard, the first, second, third and tenth respondents filed notices to abide.

The matter was determined without oral argument or written submissions. The issue was whether the application should be granted having regard to the trite principle relating to applications of this nature and the terms of the order in the Ramuhovhi I case (Ramuhovhi and Others v President of the Republic of South Africa and Others 2018 (2) SA 1 (CC)).  In support of the application, the minister submitted that the Department of Justice and Constitutional Development and Parliament have been unable to timeously enact new legislation and it is unlikely they will have done so before 29 November 2019.

The minister contended that 2018 and 2019 were atypical years in the legislative process due to the 2019 elections, which caused inevitable interruptions and changed the ordinary deadlines for government departments to submit Bills to be passed. He explained further that the bulk of the work had been done by the department and that the legislative process largely rests with Parliament. He, however, noted that because the Recognition of Customary Marriages Amendment Bill (the Bill) deals with customary law (a functional area of concurrent legislative competence in terms of sch 4 of the Constitution) it will be required to follow the process set out in s 76 of the Constitution. The minister pointed out that he was expecting further input from the National House of Traditional Leaders given the public interest in the Bill.

The minister anticipated that an extension of 12 months would be sufficient and explained that even though the Bill had reached Parliament the department deemed it prudent to approach the CC soon after it became apparent that the 29 November 2019 deadline would not be met. He submitted that the department acted reasonably and diligently in attending to the administrative procedure required before Parliament continues with the process.

The CC ascribed certain factors, which should be taken into account when exercising the discretionary remedial power, including –

  • the sufficiency of the explanation for failing to correct the defect in the prescribed time;
  • the potential prejudice if the extension is not granted;
  • prospects of remedying the defect during the extended period of suspension; and
  • the need to ensure functional and orderly state administration for the benefit of the general public.

However, the power extends the period of suspension of the declaration of invalidity should be exercised sparingly.

The CC looked at whether it was necessary to consider the application. The CC said the point of departure was its reasoning in the Ramuhovhi I case. The CC added that the reasoning and judgment in the Ramuhovhi I case was clear and unequivocal. The CC pointed out that there was a specific purpose for the inclusion of para 6 of the order and this was articulated in the judgment where Madlanga J stated: ‘I think it best to leave it to Parliament to finally decide how to regulate the proprietary regime of pre-Act polygamous customary marriages. I consider appropriate relief to be a suspension of the declaration of invalidity accompanied by interim relief. This twin-relief has the effect of granting immediate succour to the vulnerable group of wives in pre-Act customary marriages whilst also giving due deference to Parliament. In the event that Parliament finds the interim relief unacceptable, it is at liberty to undo it as soon as practically possible. Should Parliament fail to do anything during the period of suspension, the interim relief must continue to apply until changed by Parliament’.

The CC said that para 6 of the order reflects this reasoning: ‘In the event that Parliament fails to address the defect referred to in paragraph 4 during the period of suspension, the orders in paragraphs 5(a) and 5(b) will continue to apply after the period of suspension.’ The CC added that it is trite that court orders must be complied with. It is imperative to the rule of law and the functioning of the constitutional democracy that court orders are respected. The CC pointed out that Parliament was given sufficient time to address the issue.

The CC said it took a precautionary measure and made provision in the event that Parliament failed to do so.  The CC noted that it was clear that Parliament was not going to be able to remedy the defect in time, as the suspension period was to expire end of November 2019. The CC pointed out, that it was confirmed by the Minister of Justice and Correctional Services, who indicated that the deadline was not going to be met. Therefore, the CC said in compliance with para 6 of the order, from 29 November 2019, the regime in terms of para 5 of the order will continue to apply to polygamous customary marriages concluded before the Act came into operation.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2020 (March) DR 32.