Statement – WLCT v President of the Republic of South Africa & Others

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Media Statement

Women’s Legal Centre Trust v President of the Republic of South Africa & Others (case no: 22481/2014) – Recognition of Muslim Marriages:

The Women’s Legal Centre welcomes the judgment handed down by the Western Cape High Court this morning (31 Aug 2018) by Honourable Judges Desai, Boqwana, and Salie-Hlophe.

The judgment declares that the President and Cabinet have failed to fulfil their constitutional obligations to respect, protect, promote and fulfil the rights in sections 9, 10, 15, 28, 31 and 34 of the Constitution[1], and that such conduct is invalid.[2] The President and Cabinet, together with Parliament have been directed to rectify this failure within 24 months and to enact ‘legislation to recognise marriages solemnised in accordance with the tenets of Sharia law (`Muslim marriages’) as valid marriages and to regulate the consequences of such recognition.’[3] In addition, the judgment has ordered that should such legislation not be enacted within the 24 month period, marriages solemnised in terms of Sharia law may ‘be dissolved in accordance with the Divorce Act 70 of 1979’, provided that section 7(3)[4] of the Act will apply to such unions.[5]

The Court referenced a number of Constitutional Court judgments in confirming that ‘women continue to occupy a vulnerable position in our society in relation to familial structures’, and accepted the comparison made by the WLC between the recognition and protection afforded to women in Muslim marriages, and the recognition and protection of partners in civil or customary marriages.[6] The lack of recognition and protection of women in Muslim marriages was found to amount to discrimination. The argument that Muslim marriages can be registered as a civil marriage was found to fall short, to ignore the reality that women often lack bargaining power in marriages, and to exclude spouses in polygynous marriages.[7] In addition, the Court recognised that children born to Muslim marriages are not afforded the same protections as those who are born to civil or customary marriages, particularly upon the dissolution of these marriages.[8]

The Court found that in terms of South Africa’s international obligations, South Africa has undertaken ‘to take reasonable and appropriate steps to eradicate discrimination against women in marital relationships.’[9]  The Court stated that the State’s failure to recognise Muslim marriages is ‘historic and persistent’, and that it is ‘not a single instance, but rather a systemic failure by the State to provide recognition and regulation, potentially effecting millions of people around the country.’[10]  Bearing this in mind, the Court finds that in failing to enact legislation the State has failed in its constitutional duty to respect, protect, promote and fulfil the rights of those who enter into Muslim marriages, and that it is unreasonable for the State not to enact such legislation when it has the ability to cure systemic rights violations.[11] The Court has made it clear that it is not involved in the form that any proceeding legislation may take.

This judgment, and the order made, is of great significance to women, current and future, who have, and will choose to, enter into a Muslim marriage. The judgment has ensured the State is obliged to enact legislation within 24 months that recognises Muslim marriages, and that regulates the consequences of such marriages.  Should the State fail to do so, the provisions of the Divorce Act will apply, and the matrimonial property regime of the marriage will be deemed to have been out of community of property. However, in terms of section 7(3) of the Divorce Act, and in the absence of any agreement, a court will be able to make any order regarding the division of assets that the court may deem just and equitable.[12] Such a decree of divorce would only be granted by a divorce court once the court is satisfied that the termination of the marriage has taken place under Sharia law, and that the marriage subsisted at the time this temporary order comes into effect (that is, after the 24 months has lapsed and Parliament has failed to enact legislation).[13] Lastly, the Court has directed the Minister of Justice to put in place procedures relating to ‘enquiries by the Master of the High Court into the validity of marriages solemnised in accordance with the tenets of Islamic law. ‘[14] This will mean that the Master will have the ability to properly investigate the existence of marriages solemnised in terms of Islamic law before winding up estates.

We hope to see the fruits of this judgment in the coming months, and that the State will, as required by this judgment, enact legislation without delay that brings to an end over two decades of systemic human rights violations suffered by Muslim women who entered into unrecognised Muslim marriages.

[1] The right to equality, to human dignity, freedom of religion, belief and opinion, rights relating to children, the rights of cultural, religious and linguistic communities, and the right of access to courts.

[2] Para 252.

[3] Para 252.

[4] This section is applicable irrespective of when the marriage was entered into.

[5] Para 252

[6] Paras 119-124

[7] Para 129 – 130.

[8] Para 139.

[9] Para 173

[10] Para 180

[11] Para 181-183.

[12] Paras 221-229

[13] Para 229 -231

[14] Para 252