Women’s Legal Centre Trust v President of the Republic of South Africa– Case Summary.

I.CASE CITATION AND BASIC INFORMATION

Citation: 2022 (5) SA 323 (CC)

Court: Constitutional Court

Jurisdiction: South Africa

Date of Judgement: 28 June 2022

Coram: Madlanga J, Madondo AJ, Majiedt J, Mhlantla J, Pillay AJ, Theron J, Tlaletsi AJ and Tshiqi J

II.INTRODUCTION

For many years, there was no certainty on the state’s stance regarding the validity of Muslim marriages, but one thing was clear, they were not recognized by national legislation. This case became a landmark judgement, as it analyzed the impacts of this non recognition especially on women and children, raising constitutional and human rights concerns. This judgement addressed the state’s duty to regulate aspects of private law, in this case religiously led relationships. The development of the law in respect of equality and human dignity was also part of this judgement, affirming the need for legal protection in cases where vulnerable parties are disadvantaged. What makes this case noteworthy is its impact on real life issues that were affecting women in Muslim communities, as it shall be shown in the facts.

III.FACTS OF THE CASE

The matter began in the High Court, where there was a dispute over whether Ms Faro, a widow from a Muslim marriage could be recognized as validly married to the deceased. Another case was that of Ms Esau who instituted proceedings against the state for its failure to initiate legislation that recognizes Muslim marriages. Both were represented by the Women’s Legal Trust Centre (WLCT) and merged together as they both sought the same relief.[1] The High Court inter alia found that the state had an obligation to enact legislation to recognize Muslim marriages and that the interim reading will be that Muslim marriages will be dissolved by the Divorce Act, as if they were civil marriages.[2]

An appeal was made to the Supreme Court of Appeal where the state respondents conceded that the Marriage Act and the Divorce Act surely infringed on the constitutional rights to equality, dignity and access to courts of women married according to Shariah law. It was also conceded that the provisions also violated the children’s rights under section 28 of the Constitution.[3] The matters before the Supreme Court of Appeal were then reduced, and the court inter alia established that the Marriage Act and the Divorce Act infringed on the right to equality, dignity, children’s rights and access to courts. The court also held that the common law definition of marriage was invalid, as it excluded Muslim marriages.[4] According to section 172(2)(a) of the constitution, an order of invalidity has no force until confirmed by the constitutional court.[5] This then led to the matter being taken to the constitutional court.

IV.LEGAL ISSUES

The questions that the constitutional court had to answer were:

1. whether the Supreme Court of Appeal was correct in finding the above-mentioned provisions invalid,
2. whether if the invalidity order is confirmed, the order would apply in retrospect or not and
3. whether there is an obligation on the state in terms of section 7(2) of the constitution to enact legislation that recognizes Muslim marriages.[6]

V.ARGUMENTS PRESENTED

5.1 Applicants

The Women’s legal Centre Trust submitted that non-recognition of Muslim marriages was unfair discrimination based on gender, religion and marital status. They argued that the right to dignity was also infringed, as Muslim women were left without any protection by legislation. It was also brought before the court that the Supreme Court of Appeal should have read section 7(2) in relation to section 8(1), considering international provisions and would have realized the necessity of having legislation that protects Muslim marriages. Lastly, they prayed that the relief apply retrospectively, from 27 April 1994.[7]

5.2 Respondents

The state conceded that the Marriage Act and the Divorce Act contravened the afore mentioned provisions. However, they argued that the retrospectivity order must not apply to already dissolved marriages, as they no longer existed under record. They also argued that there is no international provision that puts a mandate on the state to enact legislation that recognizes Muslim marriages.[8]

VI.COURT’S REASONING AND ANALYSIS

The constitutional court commenced with analyzing whether the impugned provisions were indeed an infringement on section 9, 10, 28 and 34 of the constitution. These enshrine the right to equality, right to human dignity, children’s rights and the right to access courts, respectively.[9] The court quoted its reasoning in the Hassam case, where it held that public policy must be determined according to the values of human dignity and equality.[10] It also held that evidence shows that those women often fail to persuade their husbands to register, because they have less-bargaining powers. This then keeps Muslim women and their children, without legal protection in contrast to those whose marriages are registered.[11]

Furthermore, the court held that discrimination based on religion, marital status and gender is constitutionally prohibited.[12] It was also held that non-recognition of Muslim marriages implied that their marriages are not worthy of legal protection, and the court found no justification for the non-recognition. The court further held that views of those who wanted to retain the status quo cannot prevail over constitutional rights, hence the unfair discrimination was found unjustified.[13]

Moreover, the court held that when there is unfair discrimination that is unjustified, surely one’s human dignity would be affected. The court emphasized that husbands in Muslim marriages have limitless powers to an extent that they can obtain a divorce without the opinion of the wife, as it happened in the Faro case. This leaves women, without any say both at the inception and dissolution of the marriage, said the judge. Looking into the Faro case, the court held that the fact that the husband obtained a divorce without the hearing of the wife, shows that one’s right to access courts was infringed. It was also held that since the children’s rights are not paramount when granting divorce in Muslim law, that is also an infringement of section 28 of the constitution.[14] The court held that this infringement was against democratic values, hence unjustified.[15] Lastly, the court held that the common law definition of marriage was invalid, as it failed to recognize Muslim marriages because they are polygamous.[16]

VII.JUDGEMENT AND RATIO DECIDENDI

The court found that the Supreme Court of Appeal was correct in that both the Marriage Act and the Divorce Act were inconsistent with section 9, 10, 28 and 34 of the constitution. Section 6, 7(3) and 9(10 of the Divorce Act were also found to be unconstitutional as they inter alia did not provide for minor children in the dissolution of Muslim marriages, did not provide for the forfeiture of benefits for Muslim marriages. Accordingly, the order of invalidity was confirmed. The court also held that the order will apply to all unions concluded from 2014, when the proceedings were instituted, and will apply to pending divorce cases as per the date of the order. However, no obligation to enact new legislation was found. The executive and the legislature were ordered to remedy the sections within 24 months.[17]

VIII.CRITICAL ANALYSIS

8.1. Significance of the decision

This judgement led to an expansion of the law in that it was made to be inclusive. Muslim marriages were to be now recognized legally as valid marriages, despite non registration. So, this judgement was important as it redirected the country to a full recognition of human rights and respect of each one’s diversity. It was an affirmation that one who does things differently, remains a human, with full rights. Also, the Divorce Act specifically, section 6(3) was amended to include that, children from Muslim marriages, must be taken into account, taking into consideration their best interests, before granting a divorce.[18]

However, this was long overdue. Muslim marriages, for years, were partially recognized and did not enjoy equal status as civil marriages. One of the justifications was that they did not comprise a fair share of the population. This is not a justifiable ground, because in 1994, Muslims comprised about 2% of the country’s population.[19] That is about 1 million of the population, hence strange to argue that they were not much populated for the state to include them into legislation. This means that, for 26 years, Muslim women and children were living at the mercy of their husbands, without any legal protection. Cases of Muslim marriages had long begun, but there seemed to be no urgency at all. This, raises concerns on how much the state prioritizes human rights, if it fails to act urgently on such serious matters. The state and its organs failed to fulfill their constitutional duty to protect each of its citizens.

8.2. Implications and Impact

The judgement gave legal certainty to Muslim communities. Before 2022, these communities did not have certainty on what the courts might decide concerning their marriage disputes. Courts relied on discretion without any legislation, hence there was a high level of uncertainties. The decision of the court clarified and underlined the principle, resulting in the Muslim marriages being recognized by legislation. This then limited the powers of the husbands, as the state now monitors their marriages too. In the same vein, gender equality was championed by this judgment, as women in Muslim marriages were now able to put forth their opinions and influence their futures, both in the inception and dissolution of marriage. The status of Muslim women was elevated, due to this judgement.

8.3 Critical Evaluation

This decision can be argued to have been significant in that it proved once again that unfair discrimination on the grounds of religion is not tolerated in South Africa. The constitution puts the right to equality and the right to human dignity under inviolable rights,[20] and this was rightly affirmed in the present judgement, hence proving the country’s continuous respect of the constitution. However, like any other judgement on such a sensitive issue, this matter attracted criticism. During the litigations, a Muslim organization in its submissions implied that the state should not interfere much in religious issues.[21] This is an indirect critique of state involvement in religion. However, when religion violates human rights, and is against the boni mores, the state is justified to intervene.

IX.CONCLUSION

This case exposed a long-standing gap on the recognition of Muslim marriages by law, that was not justified. It was shown that the distinction between civil and religious marriages was unfair discrimination based on religion, gender and marital status. This judgement championed the right to equality and the paramountcy of children’s interests in matters of divorce, even those from Muslim marriages. The most important thing about this case is that Muslim marriages are now recognized by legislation in South Africa, and women and children now enjoy legal protection. This case will be remembered as one that resolved legal uncertainty regarding the status of Muslim marriages in South African Law. The future implications of this judgement may include legal questions regarding the authority of Islamic courts and tribunals to grant divorce and determine maintenance obligations. 

X.BIBLIOGRAPHY

Cases

Women’s Legal Centre Trust v President of the Republic of South Africa; Faro v Bingham N.O.; Esau v Esau; 2018 6 SA 598 (WCC)

Women’s Legal Centre Trust v President of the Republic of South Africa 2022 5 SA 323 (CC)

Legislation

The Constitution of the republic of South Africa, 1996

The Divorce Amendment Act 1 of 2024

Secondary Sources

Islamic Studies in South Africa, American Journal of Islam and Society (1994) < https://www.ajis.org/index.php/ajiss/article/view/2436> accessed 20 may 2026  

[1] Women’s Legal Centre Trust v President of the Republic of South Africa; Faro v Bingham N.O.; Esau v Esau; 2018 6 SA 598 (WCC).

[2] Women’s Legal Centre Trust v President of the Republic of South Africa 2022 5 SA 323 (CC) [21].

[3] Ibid 23.

[4] Ibid 27.

[5] Constitution of the Republic of South Africa, 1996.

[6] Women’s Legal Centre Trust (n2) [41].

[7] Women’s Legal Centre Trust (n2) [31]–[33].

[8] Women’s Legal Centre trust (n2) [34].

[9] Chapter 2 of the constitution (n5).

[10] Women’s Legal Centre Trust (n2) [45].

[11] Women’s Legal Centre Trust (n2) [47].

[12] Women’s Legal Centre Trust (n2) [53].

[13] Women’s Legal Centre Trust (n2) [55]-[56].

[14] Women’s Legal Trust Centre (n2) [57]-[59].

[15] Women’s Legal Centre Trust (n2) [63].

[16] Women’s Legal Centre Trust (n2) [68].

[17] Women’s Legal Centre Trust (n2) [69]-[83].

[18] Divorce Act 70 of 1979 (as amended 2024).

[19] Islamic Studies in South Africa.

[20] Chapter 2 of the constitution (n5).

[21] Women’s Legal Centre Trust (n2) [56].