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In the 26 years since the advent of our non-racial constitutional democracy, many Muslims have remained or have become parties to Muslim marriages, which are not recognised as valid marriages in South Africa (SA) for many purposes. South Africa has come a long way since the judgments of Ismail v Ismail 1983 (1) SA 1006 (A), Kader v Kader 1972 (3) SA 203 (RA), Bronn v Fits Bronn’s Executors and Others (1860) 3 Searle 313 and Seedat’s Executors v The Master (Natal) 1917 AD 302, which withheld legal recognition from Muslim marriages.

Although there have been several judgments from the Constitutional Court (CC) and High Courts, which have criticised the state’s failure to take steps to afford legal recognition to Muslim marriages, the hardship and prejudice suffered by Muslim women and children continue to prevail.

The pre-constitutional view of South African courts for their refusal to recognise Muslim marriages was mainly because they viewed Muslim marriages as potentially polygmous, and thus contra bonos mores.

The plight and difficulties of Muslim women and children, as well as injustices suffered by them as a result of absence of legal recognition are evident in several cases, such as Ryland v Edros 1997 (2) SA 660 (C); Daniel v Campbell NO and Others 2004 (5) SA 331 (CC); Amod v Multilateral Motor Accidents Fund 1999 (4) SA 1319 (SCA); Khan v Khan 2005 (2) SA 272 (T); and Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC).

The hearing and outcome at the Western Cape Division of the High Court

On 31 August 2018, the High Court, in the matter of the Women’s Legal Centre Trust v President of the Republic of South Africa and Others (United Ulama Council of South Africa and Others as amici curiae) and two related matters [2018] 4 All SA 551 (WCC) declared that the state was obliged by the Constitution to establish legislation to recognise Muslim marriages as valid marriages and regulate the consequences of such recognition. It declared that the President and Cabinet have failed to fulfil their constitutional obligations and directed them to rectify that failure within 24 months. It held that if the contemplated legislation was referred to the CC by the President or members of the National Assembly, then the deadline would be suspended pending the final determination of the CC. The court also held that if not enacted within 24 months from the date of the order then –

• a Muslim marriage may be dissolved in terms of the Divorce Act;
• a husband who is a spouse in more than one marriage, the court shall –
  • take all relevant factors and must make any equitable order it deems just; and
  • any person who has sufficient interest may be joined.
• any person may approach the court for variation; and
• the Department of Home Affairs and the Department of Justice publish orders widely in newspapers and radio.

The Supreme Court of Appeal (SCA) hearing

The President appealed and Women’s Legal Centre Trust cross-appealed the matter. At the SCA hearing Saldulker J questioned the counsel for the state as to what the pragmatic solution was for women and children whose constitutional rights were being infringed on a daily basis. She highlighted that Muslim women cannot wait another 20 years. They conceded that the Marriage Act 25 of 1961 and Divorce Act 70 of 1979 infringed the constitutional rights to equality, dignity and access to justice for women in Muslim marriages in that they failed to recognise Muslim marriages as valid marriages for all purposes. They conceded that the rights of children in Muslim marriages were similarly infringed on and with regard to the dissolution of the marriage; they are not afforded the automatic court oversight of s 6 of the Divorce Act in relation to care and maintenance. The non-recognition of Muslim marriages also infringed the rights of access to courts in terms of s 34 of the Constitution.

Parties to the proceedings were given an opportunity to formulate a draft order by agreement, or alternatively to find substantial common ground. They were unable to agree to one draft order.

The SCA in President of the RSA and Another v Womens Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others (SCA) (unreported case no 612/19, 18-12-2020) (Saldulker and Van der Merwe JJA (Maya P, Plasket JA and Weiner AJA concurring)) delivered its judgment on the 18 December 2020. It had to decide on three main issues, namely –

• is the state under obligation to enact legislation under the Constitution;
• whether the provisions are inconsistent with the Constitution; and
• whether the interim measure should have retrospective operation.

Is the state under obligation to enact legislation under the Constitution?

The South African Human Rights Commission (SAHRC) contended that the state is bound by international instruments to which it is a party to, and the state can enact legislation based on four instruments that had been ratified by Parliament, namely –

• the United Nations Convention on the Elimination of all Forms of Discrimination against Women;
• the International Covenant on Civil and Political Rights;
• the Protocol of the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa; and
• the Southern African Development Community Protocol on Gender and Development.

The SCA was of the view that the purpose of the above documents was to advance equality between men and women or spouses and they required the state to enact legislation and take measures to that end. The SCA could not find any provision that required legislation to establish equality between women that are married under different marital regimes. As a result, they found that the instruments did not oblige the state to enact legislation relevant to this matter.

Whether the provisions are inconsistent with s 15 of the Constitution

The SCA referred to ss 43 and 44 of the Constitution, which stipulates that the legislative authority in the national sphere of government is exclusively vested in Parliament. In terms of s 42(1) of the Constitution, Parliament consists of the National Assembly and the National Council of Provinces. The legislative authority confers on the National Assembly and the National Council of Provinces to pass legislation. It is the responsibility of Parliament to make laws. It follows that the obligation to enact legislation is found outside s 7(2) of the Constitution. The SCA advised there was no authority where the court directed the enactment of legislation and, in its view, for a court to order the state to enact legislation on the basis of s 7(2) alone – in order to realise fundamental rights – would be contrary to the separation of powers. Parliament makes legislative choices and the court may only act in terms of s 172 if they are not rational or constitutionally compliant. On this basis, the SCA set aside para 1 of the WCC’s judgment and replaced it with the declaratory orders that the Women’s Legal Centre Trust had sought in the alternative.

Although the High Court included reference to s 15 of the Constitution in para 1 of the order, it did not make any finding that any provisions of the Marriage Act or Divorce Acts are inconsistent with s 15. The SCA stated that this was not the argument of the Women’s Legal Centre Trust and the crux of the argument was quite correctly that the permissive powers of s 15(3) do not prevent legislation and thus the declarations of unconstitutionality should not contain reference to s 15.

Whether the interim measure should have retrospective effect

The Women’s Legal Centre Trust requested the court to order interim relief and backdate the relief to April 1994. The SCA stated this was a far-reaching proposal that goes way beyond what it sought in the High Court and in the cross-appeal. It is also a complex subject and may have profound unforeseen circumstances. It is also the prerogative of Parliament to determine if it should apply retrospectively.

The SCA order

The SCA replaced the WCC order, set aside para 5 of the High Court order, and made an order as follows:

• The Marriage Act and Divorce Act are declared inconsistent with the Constitution as they fail to recognise Muslim marriages.
• Section 6 of the Divorce Act is inconsistent with the Constitution as it fails to provide for mechanisms to safeguard the welfare of children of Muslim marriages.
• Section 7(3) of the Divorce Act is inconsistent with the Constitution as it fails to provide for redistribution of assets.
• Section 9(1) of the Divorce Act is inconsistent with the Constitution as it fails to make provision for forfeiture of matrimonial benefits of a Muslim marriage.
• Declarations of constitutional invalidity are referred to the CC for confirmation.
• The common law definition of marriage is declared inconsistent with the Constitution and invalid to the extent it excludes Muslim _m­arriages.
• The declarations of invalidity in paras 1.1 to 1.4 are suspended for a period of 24 months to enable the President and Cabinet, together with Parliament to remedy the foregoing defects by either amending legislation or passing new legislation within 24 months in order to ensure the recognition of Muslim marriages as valid marriages for all purposes in SA and to regulate the consequences arising from such recognition.
• Pending legislation, a Muslim marriage may be dissolved in accordance with the Divorce Act as follows:
• The Divorce Act shall be applicable save that all Muslim marriages shall be treated as out of community of property, except where there are agreements to the contrary.
• Section 7(3) of the Divorce Act shall apply.

In the case of a husband who is a spouse in more than one Muslim marriage, court:

• Shall consider any contract or agreement and must make an equitable order.
• May order person with sufficient interest joined in proceedings.
• Declared that s 12(2) of the Children’s Act 38 of 2005 applies to Muslim marriages.
• The provisions of s 3 of the Recognition of Customary Marriages Act 120 of 1998 apply to Muslim marriages.
• Any interested party may approach the court.

The SCA views that the order given will cure the hardship by vulnerable women and children in Muslim marriages, which will operate until proper legislation is put in place. The effect of the order is that a court may redistribute assets of a couple of a Muslim marriage on the dissolution of the marriage in a manner, which the court may deem just. The wife may also be granted maintenance beyond the iddah period (‘the period a woman must observe after the death of her spouse or after a divorce, during which she may not marry another man. Its purpose is to ensure that the male parent of any offspring produced after the cessation of a nikah (marriage) would be known’ (www.ijhcs.com, accessed 1-2-2021)), unless there is an agreement on dissolution. The state may push ahead with a Single Marriage Bill where they want to give recognition to all marriages, including civil, religious and customary marriages and same-sex unions. To ensure that the Single Marriage Bill is properly responsive to the nuances of different types of marriages and caters for specific needs of relevant communities, in depth consultations with relevant stakeholders within those communities and broader civil society will be required including the Women’s rights groups. The SAHRC may have to engage with the stakeholders within the Muslim communities to address the outstanding issues and tension in relation to the Muslim Marriages Bill.

This matter has given Muslim marriages recognition, but has not implemented Muslim Personal Law nor made Sharia Law part of South African law.

Mohammed Moolla BProc (UKZN) is a senior magistrate at the Wynberg Magistrate’s Court in Cape Town.

This article was first published in De Rebus in 2021 (March) DR 10.