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The constitution of the Republic of South Africa Act 108 of 1996, provides for the right to equality and prohibits unfair discrimination on listed grounds which include race, gender, religion etc. Unfair discrimination may affect a person’s sense of self-worth (esteem), dignity and have lasting effects on their emotional and mental wellbeing. Sometimes the effects go beyond emotional wellbeing, resulting in damaging patrimonial consequences, as was the case brought before the Constitutional Court (Concourt) for confirmation.

In Women’s Legal Centre Trust v President of the Republic of South Africa And Others (CCT24/21) [2022] ZACC 23 (WLCT case) the applicant sought an order of the Constitutional Court (Concourt) to confirm the decision of the Supreme Court of Appeal (SCA), to the effect that the Marriages Act 25 of 1961, the Divorce Act 70 of 1979 and certain sections of the Divorce Act were inconsistent with the constitution particularly Section 9, 10, 28 and 34.

The decision of the SCA had been made in the case of President of the Republic of South Africa And Another v Women’s Legal Centre Trust And Others; Minister of Justice and Constitutional Development v Faro And Others; Minister of Justice and Constitutional Development v Esau And Others (612/19) [2020] ZASCA 177. This was a landmark decision in its own right because for the first time since the dawn of democracy in South Africa, a court had upheld the recognition of Muslim marriages in view of the constitutional tenets of equality, dignity and freedom of religion. It ought to be remembered that for decades, our courts had decided against the recognition of Muslim marriages in such cases as Ismail v Ismail 1983 (1) SA 1006 (A) and Seedat’s Executors v The Master (Natal) 1917 AD 302.

Apart from requesting the Concourt to confirm the order of constitutional invalidity of the provisions by the SCA, the WLCT also brought a cross appeal to the effect that in the event that the Concourt declines to confirm the invalidity of the legislation, to order that the state is under an obligation to promulgate legislation in recognition of Muslim marriages as per section 7(2) of the constitution.

As a bit of background, the WLCT had brought a petition to the Concourt in 2009 to order the state to recognise Muslim marriages. This petition had been brought under section 167 of the constitution, which provides for direct access to the Concourt. However, the petition was dismissed and the matter was directed to the High Court.

In 2015 and in a consolidated case, the WLCT requested the High Court to declare the non-recognition of Muslim marriages as inconsistent with sections 7(2), 9(1), 9(2), 9(3), 9(5), 10, 15(1), 15(3), 28(2), 31 and 34 of the constitution. The application also requested an order that the provisions of the Marriages Act and the Divorce Act that do not recognise Muslim marriages be declared as invalid.

The consolidated case involved the grievances of Ms Faro and Mrs Esau. The former had sought relief against the Executor of the late Mr Moosa Ely’s estate, so that she can be declared as the deceased’s spouse for succession purposes. This was subsequently achieved, where after she brought an application for recognition of Muslim marriages. The latter (Mrs Esau), sought to interdict the GEPF from paying a share of the pension interest to Mr Esau, to whom she was married to under Muslim rites, until the finalisation of an action to have the pension fund settle her share. The High Court made a finding that the state had an obligation to enact legislation to recognise Muslim marriages. The state acceded that the provisions of the Marriages Act and Divorce Act in so far as they did not recognise Muslim marriages, were inconsistent with the constitution but nevertheless lodged an appeal on the aspect of the obligation to promulgate legislation.

The issues before the Supreme Court of Appeal (SCA) were (i) whether section 7(2) of the constitution placed an obligation on the state to promulgate legislation in recognition of Muslim marriages and its attendant consequences (ii) if the given provisions were inconsistent with section 15 and (iii), whether an interim measure should have retrospective effect at all. The SCA held that the duty to promulgate laws was within the constitutional mandate of the legislature and the judiciary must not be seen to be encroaching by directing parliament to promulgate a new law, but that the judiciary may make a finding on defects in the existing law. It also held that the determination of retrospective effect to 1994 would have unforeseen effects and therefore it was backdated to the date of its order.

With that being said, the Concourt in Women’s Legal Centre Trust v President of the Republic of South Africa And Others (CCT24/21) [2022] ZACC 23 confirmed the order of the SCA to the extent that the impugned provisions violated the constitution, and will be retrospective to marital unions entered into under Sharia law since 15 December 2014. However with regards to the obligation to legislate, the Concourt found that the applicants had failed to establish that section 7(2) of the constitution places an obligation on the state to enact legislation specific to the recognition of Muslim marriages.

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