Speaker of the National Assembly and Another v Women’s Legal Centre Trust and Others (Commission for Gender Equality as Intervening Party; Muslim Assembly Cape and United Ulama Council of South Africa as Amici Curiae) 2025 (1) BCLR 103 (CC)

In September 2024, the Constitutional Court (CC) extended the period of suspension of the declaration of invalidity of the Marriage Act 25 of 1961 and Divorce Act 70 of 1979 with regard to Sharia law (Muslim marriages). This was after the Speaker of the National Assembly and the Chairperson of the National Council of Provinces (collectively referred to as Parliament), brought an urgent application to the CC seeking an extension of the suspension of the declaration of invalidity for another two years, until 27 June 2026. On 28 June 2022, the CC handed down an order that the Marriage Act and the Divorce Act were inconsistent with ss 9, 10, 28 and 34 of the Constitution, in that they fail to recognise marriages solemnised in accordance with Sharia law. Furthermore, the CC also declared ss 6, 7(3) and 9(1) of the Divorce Act inconsistent with the Constitution.

The CC pointed out that Parliament submitted that the reason for the extension sought is to ensure that there is meaningful public engagement in respect to the Marriage Bill, 2023, in accordance with ss 59(1)(a) and 72(1)(a) of the Constitution. Parliament also submitted that it is just and equitable for the extension to be granted, to allow Parliament to cure the constitutional defects, and that the CC has a wide discretion to do so. The CC added that Parliament pointed out that the Divorce Amendment Act 1 of 2024 was assented to by the President on 6 May 2024 and, therefore, the defects in the Divorce Act identified by the CC are not the subject of the application for extension, but only those defects that the Marriage Bill is intended to cure. The CC said that according to Parliament, this is an indication that the Marriage Bill is likely to be passed in the extension period requested.

The CC pointed out that the Marriage Bill, as submitted by Parliament, is complex in nature because it involves different religious laws (such as those that relate to the Muslim, Hindu and Jewish faiths). Which requires multi-disciplinary research into the impact of the policy development by all affected communities. The Bill will also require input from more than one government department. The CC added that Parliament has pointed out that the Department of Home Affairs as is stand is registering Muslim marriages in terms of s 3 of the Recognition of Customary Marriages Act 120 of 1998. And the promulgation of the Divorce Amendment Act is indicative of steps being taken.

Parliament told the CC that prejudice was more likely to be suffered if the relief sought in the application is not granted because there will be no binding legislation to regulate affected marriages. The CC added that with regard to the Bill being passed during the extension period sough, Parliament relied on the steps that have already been taken. The CC said Parliament stated that the process is currently in the public participation stage and under the control of Parliament. The CC pointed out that Parliament also submitted that, on average, Bills take 27 months to be passed by both Houses and that it never exceeds a period of 48 months. The CC said that Parliament stated that it is certain that the Bill will be passed within 24 months.

The CC said that Parliament brought an urgent application before it approximately five weeks before the expiry of the suspension period. The CC added that r 12 of the Rules of the Constitutional Court sets out the requirements for urgent applications and the rules require an explicit setting out of the circumstances that would justify a departure from the ordinary processes. With regard to the power of the CC to grant extension, the CC said it had the power to grant extension in respect made in terms of s 172 of the Constitution. Section 172(1)(b) states courts are afforded a wide discretionary power to grant a just and equitable remedy if it is in the interest of justice to do so. The CC said that Parliament has sufficiently indicated the steps that have been taken, and the timelines cannot be faulted. The CC also pointed out that Parliament has also managed to comply with the order in relation to the Divorce Amendment Action. The CC added that it was worth noting that the first respondent, who was the applicant in the initial judgment, did not oppose Parliament’s urgent application, nor did any of the other parties.

The CC also said that Parliament has implemented temporary measures to regulate affected marriages while the Bill undergoes the prescribed legislative process. The CC said that this suggested that there will be no prejudice suffered. The CC added that Parliament sufficiently explained the adverse implications of not granting an extension on its constitutional obligations to provide a meaningful platform for public participation. The CC said it was therefore just and equitable, and in the interest of justice, for the extension to be granted.

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

This article was first published in De Rebus in 2025 (March) DR 40.