WOMEN’S LEGAL CENTRE TRUST V PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS.

Case Name: WOMEN’S LEGAL CENTRE TRUST V PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS.

CITATION: (CCT 24/21) [2022] ZACC 23

COURT: CONSTITUTIONAL COURT OF SOUTH AFRICA 

DATE OF DECISION: 28 JUNE 2022

JUDGMENTS: TLALETSI AJ

Introduction

This case is significant because it finally acknowledges that the state’s prolonged refusal to recognize Muslim marriages has placed Muslim women and children without legal protection, dignity, and equality. By declaring this omission unconstitutional, the Constitutional Court affirmed that religious and cultural practices cannot be ignored where doing so causes real harm, especially to vulnerable groups. The judgment shows that treating everyone equally in South Africa is not just about treating everyone the same, but about addressing historical exclusion in a meaningful way. It also demonstrates that courts can require. It also shows that courts can require Parliament to act when inaction undermines constitutional rights, while still respecting the separation of powers.

Facts of the case

In December 2014, the Women’s Legal Centre Trust approached the High Court, alleging that Parliament, the President, and the Cabinet had failed to meet their Constitutional duties to respect, protect, promote, and fulfill various rights guaranteed in the Constitution. These included the rights to equality, dignity, religious freedom, the best interest of the child, cultural participation, and access to courts. These are the rights in section 9(1), (2), (3), and (5), section 10, section 15(1) and (3), section 28(2) of the Constitution. The application was based on the State’s failure to pass legislation recognizing and regulating Muslim marriages. The Women’s Legal Centre Trust sought an order compelling the president and parliament to remedy this failure within 12 months, or, in the alternative, a declaration that the Marriage Act, Divorce Act, and the Recognition of Customary Marriages Act were unconstitutional to the extent that they did not provide for the recognition of Muslim marriages.

The applicant in this matter is WLCT, which sought this application in the public interest. The first and the second respondents are the President of the Republic of South Africa and the Minister of Justice and Constitutional Development. The third to fifth respondents are the Minister of Home Affairs, the Speaker of the National Assembly, and the Chairperson of the National Council of Provinces. The sixth respondent is the South African Human Rights Commission. The seventh respondent is the Commission of the Promotion and Protection of the Rights of Cultural.

Legal Issues

In this case, the court had to determine the Constitutionality of non-recognition of Muslim marriages, whether the Marriage Act 24 of 1961 and the Divorce Act 70 of 1979 are unconstitutional because they fail to recognize marriages solemnized according to Sharia law (that have not been recognized as civil marriages). It specifically examined whether this failure amounted to unjustifiable discrimination and infringed constitutional rights.[1] The court considered whether the non-recognition of Muslim marriages unfairly infringed Section 9 of the Constitution, which is about equality before the law and prohibition of unfair discrimination, Section 10, which is about human dignity, Section 34, which states that everyone has the right to access to courts, and Section 28, which speaks about the best interests of the child.

One of the central disputes concerned whether the Constitution places a positive duty on the state to introduce comprehensive legislation specifically recognizing and regulating Muslim marriages. The Constitutional Court declined to issue an order directing Parliament to enact such legislation on the basis that it was a general obligation in section 7(2) of the Constitution.[2] The court also scrutinized the common law definition of marriage, which traditionally excluded Muslim marriages. It held that this exclusion renders the definition unconstitutional and therefore invalid to the extent of that exclusion.

Arguments Presented

Applicant’s argument

The WLCT argued that the Marriages Act 25 of 1961 and the Divorce Act 70 of 1979 are unconstitutional to the extent that they fail to recognize Muslim marriages. This legislative omission, it was contended, results in systematic exclusion of spouses and children in Muslin marriages from legal protection. The rights that were implicated are section 9; the exclusion amounted to unfair discrimination on the grounds of religion, gender, marital status, and culture. Section 10 was implicated in the sense that the failure to recognize Muslim marriages undermines the dignity of spouses by rendering their family relationships legally invisible. Section 28, Children born of Muslim marriages are denied protections linked to divorce, maintenance, and care. Section 34, spouses in Muslim marriages are effectively barred from accessing divorce remedies under the Divorce Act.

The applicant contended that the common law definition of marriage, which excludes Muslim marriages, is itself unconstitutional. The principle that was invoked is section 39(2) of the Constitution, which states that the common law must be developed in line with the spirit, purport, and objects of the Bill of Rights. The WLCT argued that, read with section 7(2) of the Constitution, the state bears a positive duty to enact comprehensive legislation recognizing and regulating Muslim marriages. The applicant relied on the Hassam v Jacobs NO 2009 (5) SA 572 (CC) case, which dealt with the extension of inheritance rights to widows in polygamous Muslim marriages.

The Respondent’s Argument

The state respondents opposed the application, maintaining that the challenged statutory provisions are constitutionally sound and do not infringe on any of the rights relied upon. They further contended that the Constitution does not impose a duty on the state to enact legislation recognizing Muslim marriages, nor may a court compel the state to do so. The Speaker of the National Assembly rejected the allegation that Parliament had failed to discharge its constitutional responsibilities, arguing that no draft Bill had been placed before Parliament for consideration. In the absence of such a Bill. It was submitted that Parliament’s conduct could not be faulted. The speaker emphasized that the parliament’s conduct could not be faulted. The speaker contended that the authority to initiate legislation resides with the executive, not parliament. It argued that ordering the enactment of legislation would constitute an impermissible intrusion into the legislative domain, contrary to the constitutional allocation of powers.

Court’s reasoning and analysis

The court structured its analysis around two central questions. Whether the failure to recognize Muslim marriages in the Marriage Act, Divorce Act, and common law violates the Constitution and what relief is appropriate and whether it is permissible for the Court to direct the legislature to enact specific legislation. In its detailed judgment, the court examined the challenges faced by women in Sharia marriages, as well as the children born from such unions. The Court found that, in comparison with women in civil and customary marriages, women in Muslim marriages experience unfair discrimination on multiple grounds, including gender, religion, and marital status. It further held that the mere fact that Muslim women gave the legal option to register their marriages, yet choose not to, does not relieve the president and the Cabinet of their constitutional duty to protect these women’s rights. The court reasoned that the failure to recognize Muslim marriages violates the dignity of Muslim women. The court found that there is a systematic violation of the rights to equality, human dignity, access to courts, and children’s rights.

The court cited the Daniels v Campbell NO 2004 (5) SA 331 (CC) case, which stated that the continued non-recognition of Muslim marriages is a constitutional relic that has no place in a democratic South Africa. It stems from historical prejudice based on race, religion, and culture. Earlier courts, influenced by narrow and ethnocentric views, excluded relationships that did not conform to their own understanding of marriage. As Mahomed CJ observed, such an approach was marked by inequality, arbitrariness, and intolerance. These outdated and restrictive views of marriage and family life must now give way to constitutional values that recognize diversity, equality, and human dignity.[3]

The court held that the common law definition of marriage is invalid to the extent that it excludes Muslim marriages. Section 39(2) required the law to evolve to reflect constitutional value rather than past ethnocentric biases.

Judgment and ratio decidendi

The court rejected the argument that the state has no obligation to protect rights in Muslim marriages, while also declining to compel Parliament to enact specific legislation, emphasizing the separation of powers. The Constitutional Court held that the principle of substantive equality requires that Muslim marriages be legally recognized to prevent discrimination against children and spouses. The court held that the rights to dignity and access to justice cannot be denied simply because marriage follows a particular religious or cultural norm, and that the law must adapt to protect vulnerable groups. While courts have the authority to declare legislation unconstitutional and offer guidance or remedies, they cannot compel Parliament to enact specific legislation, as any remedy must respect the constitutional separation of powers. Furthermore, the court held that both common law and statutory provisions must be interpreted and developed in accordance with constitutional values, as required by section 39(2) of the Constitution. The order was suspended for 24 months to allow Parliament and the executive time to amend the law.

Critical Analysis

The judgment formally acknowledges that Muslim marriages enjoy legal recognition and protection comparable to civil and customary marriages. Women and children in Muslim marriages now have a constitutional claim to equality, dignity, and access to remedies, particularly in cases of divorce, maintenance, and inheritance. The Constitutional Court took a principled and rights-based approach, balancing the protection of vulnerable groups against constitutional doctrines such as the separation of powers. It reinforced the transformative mandate of the Constitution by addressing historical discrimination against women and children in Muslim marriages, acknowledging that past legal frameworks reflected patriarchal biases. The marks a clear step toward a more inclusive, equitable, and rights-respecting legal system in South Africa.

Conclusion

The court struck down the exclusion of Muslim marriages from recognition, affirmed the Constitutional rights of spouses and children, and provided Parliament a clear timeframe to remedy the legislation gap, while respecting the separation of powers. This shows that South Africa is progressing to a rights-respecting democratic country, ensuring that everyone’s rights are not infringed, especially vulnerable groups. The decision is a transformative step towards equality, dignity, and inclusivity.

Reference(S):

[1] Safli.org/za/cases/ZACC/2022/23.html

[2] Concourt.org.za

[3] Daniels v Campbell NO  2004 (5) SA (331) (CC)