Authored By: Thandeka Yende
University of South Africa
Introduction
2026 marks 30 years of the enactment of Constitution of the Republic of South Africa, widely recognised for its commitment to equality, dignity and social justice. While the transformative impact of the Constitution has received much attention, what is overlooked is the 30 years of judicial reasoning giving effect to these constitutional values.
Adjudication or judicial reasoning is the process through which courts resolve dispute in by applying relevant law. The judiciary is the key pillar of constitutional democracy and judicial reasoning is the heart of the judicial function. Over three decades, South African courts have transformed from institutions that largely upheld parliamentary supremacy to courts that actively protect rights through constitutional supremacy and restorative justice.
Using Women’s Legal Centre Trust v President of the Republic of South Africa as a case study, this paper examines how the reasoning of the higher courts reflects their distinct constitutional functions, demonstrating that the courts achieve justice not through identical reasoning across courts but through an accumulation of different approaches impacted by different institutional roles.
The paper will begin by examining the legal framework of the courts in South Africa and their institutional roles. A case analysis will be divided into two: a brief case analysis that affirms the roles of the courts, and more extended case analysis of the case study Women’s Legal Centre Trust v President of the Republic of South Africa. The paper then critically evaluates the arguments before concluding.
Legal Framework
Chapter 8 on the Constitution of the Republic of South Africa (‘the Constitution’) governs the roles and hierarchy of the courts. Section 165 of the Constitution envisages judicial authority to the courts. Section 166 establishes the hierarchy the courts while Section 167 details the institutional role of each court. Section 173 of the Constitution gives all higher courts the inherent power to develop the common law in accordance with the interest of justice. These constitutional provisions are reinforced by the Superior Courts Act 10 of 2013.
Institutional Role of the Higher Courts
The High Court may decide on constitutional matters and is the court a quo or court of first instance. The Supreme Court of Appeal (SCA) is South Africa’s principle appellate court that determines appeals arising from the High Courts. The Constitutional Court is the highest court on constitutional matter and gives the final determination on constitutional cases.
Case Law Analysis
3.1 Judicial Authority to Develop the Law
In Carmichele v Minister of Safety and Security, the Constitutional Court held courts are under a general duty to develop the common law when it deviates from the objectives of the country’s Bill of Rights. Read along with the courts’ Section 173 inherent power, the higher courts ought to develop law to promote the spirit, purport and objects of the Bill of Right, establishes the obligation and manner that courts have in developing law.
In Du Plessis and Others v De Klerk and Another, the Constitutional Court describes limits of judicial authority: “The judiciary should confine itself to…[making] changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society”.
Both cases describe the role and responsibilities of the courts while limiting them to their institutional roles.
3.2 Women’s Legal Centre Trust v Present of the Republic of South Africa
Women’s Legal Trust Centre (WLTC), consolidating with two other applications, seeks declarations that the President, the Cabinet, and Parliament have failed to fulfil their section 7(2) obligations found in the Constitution to recognise and regulate Muslim marriage. WLTC also seeks an order for the enactment of comprehensive legislation that recognises and regulates Muslim marriages.
Faro v Bingham NO and Others, following the ruling that her Muslim marriage with her deceased husband subsisted after his death and the court ordering she be recognised as “spouse” in the Intestate Succession Act and Maintenance of even after the Ely (the husband) obtained a Talaq (Islamic divorce) certificate from the Muslim Judicial Council (MJC) without enquiring with Faro and the Ely’s eldest daughter’s successful attempt to have Faro’s removed as executrix of Elys’ deceased estate, leaving Faro and her child homeless. Faro made an application further seeking an order declaring the failure of the Minister of Justice to implement policies and procedures needed to establish the validity of Muslim marriages to persons who are spouses seeking to claim benefits from the Intestate Succession Act and Maintenance of Surviving Spouses Act.
The second application is Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and Others, where the Plaintiff claimed that the Cabinet and the Minister of Justice failed to enact legislature that recognises and regulates Muslim marriage as a valid marriage on South Africa and this discriminates against Muslim women married in term of Muslim rites based on gender and religion.
The main issues in this case is progresses through the higher courts are whether the state has fulfilled its section 7 (2) constitutional obligations to enact legislation recognising and regulating Muslim marriages and whether the non-recognition of Muslim marriages amounts to unfair discrimination against women and children, violates their dignity, freedom of religion, cultural rights, children’s rights and access to courts.
3.2.1 High Court
In this case, the High Court dedicated extensive attention to establishing the constitutional foundation and values that will guide the judgement, the historical legal development and prejudice of the recognition and regulation of Muslim marriages and social context of the matter before engaging with the legal issues. This approach affirms the function of High Court as the court of first instance. As Justice Theron explains in ‘Refreshing and Enhancing Judgement Writing Skills’, judgements directed to the legal community require detailed analysis, logic and reasoning. Before evaluations of the legal issues even begin, the court had sufficiently painted a picture of the systemic failure by the State to provide recognition and regulation of Muslim marriages, and on the millions of people in the Muslim community in the country. The court extensively quotes landmark precedent and Constitutional provisions, consistently grounding its reasoning in the foundational values of equality and human dignity. The judicial reasoning of the court criticises the short-fallings and biases of courts in protecting women’s rights since the dawn of democracy. The judgement established a pattern of constitutional exclusion and demonstrated the need for greater care.
The Judge ordered the State (legislature) to enact legislation that recognises marriages formalised in accordance with Sharia law in 24 months and that Muslim marriages may be dissolved in accordance with the Divorce Act 70 of 1979.
3.2.2 Supreme Court of Appeal
In the Women Legal Centre Trust matter, the SCA utilised a narrower and more doctrine-driven approach to judicial reasoning by closely scrutinising whether the constitutional, statutory and international authorities that the High Court relied on justified the relief granted. The court acknowledges the “emotive and contentious” nature of the matter but immediately began dissecting the legal authorities relied upon by the High Court’s judgement. Unlike the High Court where the court sought to identify constitutional injustices and establishing the historical and social context of the matter, the SCA was more concerned about ensuring that High Court’s reasoning was consistent with Constitutional values and principles that affirm democracy, particularly the separation of powers. While the High Court’s reasoning called for constitutional justice, the SCA’s reasoning called for constitutional justice within the limits of judicial authority.
The court set aside the first order of the High Couch which called for the State to enact Sharia marriage recognising and regulating legislation-claiming it is a violation of the separation of powers. The court also set aside the High Court’s order for the Muslim marriage to be dissolved in accordance with the Divorce Act. In its place, the court declared Marriages Act and Divorce Act inconsistent with the Constitution and referred the declaration of invalidity to the Constitutional Court.
3.2.3 Constitutional Court
The Constitutional Court does not delve straight into context in the way the High Court does but does not clinically dissecting the reasoning of the courts like the SCA does. The court finds a balance between contextual sensitivity and complying to its institutional role of the court of final instance.
The court’s reasoning was broader in its application, touching on constitutional rights, separation of powers, developing the common law and being very aware of the consequences of its reasoning. Like the High Court, its assessment is grounded in context and morals, just with more a final and declaratory analysis than the suggestive and persuasive rigour of the High Court. The Constitutional Court’s reasoning has the critical sharpness of the SCA, picking up on gaps of arguments and authorities; but, unlike the SCA, filling the gaps with the right “constitutional approach”.
The Constitutional Court reconciled constitutional values with institutional limits. It confirmed the declarations of constitutional validity, declared the common-law definition of marriage as constitutional invalid, granted the retrospective relief and suspended the declaration of invalidity to allow Parliament to amend the legislative defects.
Critical Evaluation
A consistent observation is how the institutional roles of the courts informed the judicial reasoning. The High Court demonstrated how contextually rich judgements are in a court a quo and how this can give operational ease by giving contextual and historical reference for judgements in following proceedings. However, as the SCA observed the matter as being “emotive”, the High Court’s value-driven reasoning led the Judge to a remedial order that exceeded the court’s institutional role by declaring that Parliament enact legislation.
The SCA’s doctrine-driven judicial reasoning did well in grounding the judgement within constitutional and institutional limits. Had the matter ended in the SCA, however, the women and children born into and married according to Sharia law would have continued to experience injustice due to institutional compliance.
Constitutional Court reconciled the two approaches by integrating contextual sensitivity with institutional compliance. One may question, like the Judge in the High Court, whether the Constitutional Court could have adopted a better approach to ensure that the constitutional order for a case of continuous systemic shortcomings is fulfilled, particularly given the repeated judicial criticism of the State’s prolonged failure to address legislative defects.
Women’s Legal Centre Trust demonstrates that judicial reasoning in South Africa develops through the accumulation of the institutionally impacted approaches of the courts. By the time a constitutional precedent is set by the Constitutional Court, the courts have progressively developed the matter in its contextual sensitivity and institutional compliance.
Conclusion
Conclusively, judicial reasoning is profoundly impacted by the constitutional role of each court. This paper has demonstrated judicial reasoning across the higher courts for a single matter may reflect different approaches and priorities but ultimately contribute to the achievement of justice. Through examining the judicial reasoning of the Women’s Legal Centre Trust case, it was demonstrated that contextual sensitivity is important to establish historical, social and contextual aspect that the court of first instance must consider, but its judgement may be flawed due to the need to express the gravity of the injustices being experienced. Equally, a doctrine-driven appellate court is necessary to ensure that such cases are administered according to existing constitutional principles correctly and consistently, even if it means delaying the relief sought. More importantly, the Constitutional Court’s ability to balance contextual sensitivity with institutional limitations with care and authority is what makes judicial reasoning significant in South Africa’s constitutional democracy. Justice through judicial reasoning is an accumulation of different approaches impacted by constitutional functions that aim to ensure that the courts are tools to meaningfully achieve justice. There should be a production of more literature that dissect the reasoning of the judicial reasoning of courts to understand and improve the way justice is administered through judicial reasoning.
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[1] Maya TheVoice, ‘Top 5 best constitutions in the world’ (MayatheVoice, 2024) https://mayathevoice.com/top_5_best_constitutions/
[2] Jaco Barnard-Naude, Adrian Bellengere, Christine Bronkhurst, Isolde De Villiers, Anel Du Plessis, Willemien Du Plessis, Warren Freedman, Michelle Karels, Jonathan Klaaren, Louis Kotze, Jacques Mahler-Coetzee, Jean Moore, Thiruneson Padayachy, Ngwako Raboshakga, Sanele Sibanda, Neels Swanepool, Introduction to Law and Legal Skills in South Africa 2e, (first published 2012, Oxford University Press Southern Africa 2021) 287
[3] Barnard-Naude et al. (n 2) 295
[4] Hoolo Nyane, ‘The judicialisation of politics in South Africa: A critique of the emerging trend’ (2020) 36 (4) South african journal on human rights 319, 319
[5] Constitution of the Republic of South Africa Act 1996, Chapter 8
[6] Constitution of the Republic of South Africa Act 1996, s 165
[7] Constitution of the Republic of South Africa Act 1996, s 166 and s 167
[8] Constitution of the Republic of South Africa Act 1996
[9] Superior Courts Act 10 of 2013
[10] Barnard-Naude et al. (n 2) 295
[11] Barnard-Naude et al. (n 2) 295 and Constitution of the Republic of South Africa Act 1996
[12] Barnard-Naude et al. (n 2) 294 and Constitution of the Republic of South Africa Act 1996
[13] Barnard-Naude et al. (n 2) 294 and Constitution of the Republic of South Africa Act 1996
[14] Barnard-Naude et al. (n 2) 294 and Constitution of the Republic of South Africa Act 1996
[15] Carmichele v Minister of Safety and Security [2002] (1) SACR 79 (CC)
[16] Carmichele v Minister of Safety and Security (n 15)
[17] Du Plessis and Others v De Klerk and Another [1996] (5) BCLR 658
[18] Faro v Bingham NO and Others [2013] ZAWCHC 159
[19] Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and Others [2021] (3) SA 593 (SCA)
[20] Leona Theron, ‘Refreshing and Enhancing Judgement Writing Skills’ (2006) 5 (1) The South African Judicial Education Journal 1, 3
[21] Women’s Legal Centre Trust v President of the Republic of South Africa and Others, Faro v Bingham N.O. and Others, Esau v Esau and Others [2018] (6) SA 598 (WCC), para 180
[22] Women’s Legal Centre Trust v President of the Republic of South Africa and Others, Faro v Bingham N.O. and Others, Esau v Esau and Others (n 21) para 155
[23] President of the RSA and Another v Women’s 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 [2021] (2) SA 381 (SCA), para 1
[24] Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2023] (1) BCLR 80 (CC)
