Women's Legal Centre Trust v President of the Republic of South Africa and Others, Faro v Bignham N.O. and Others, Esau v Esau and Others (22481/2014, 4466/2013, 13877/2015) [2018] ZAWCHC 109; [2018] 4 All SA 551 (WCC); 2018 (6) SA 598 (WCC) (31 August 2018)

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[2018] ZAWCHC 109
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Women's Legal Centre Trust v President of the Republic of South Africa and Others, Faro v Bignham N.O. and Others, Esau v Esau and Others (22481/2014, 4466/2013, 13877/2015) [2018] ZAWCHC 109; [2018] 4 All SA 551 (WCC); 2018 (6) SA 598 (WCC) (31 August 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.:
22481/2014
In
the matter between:
WOMEN’S
LEGAL CENTRE
TRUST
Applicant
and
PRESIDENT
OF THE REPUBLIC
OF
SOUTH
AFRICA
First
Respondent
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Second
Respondent
MINISTER
OF HOME AFFAIRS
Third
Respondent
SPEAKER
OF THE NATIONAL ASSEMBLY
Fourth
Respondent
CHAIRPERSON
OF THE NATIONAL COUNCIL
OF
PROVINCES
Fifth
Respondent
LAJNATUN
NISAA-IL MUSLIMAAT
(ASSOCIATION
OF MUSLIM WOMEN OF
SOUTH
AFRICA)
Sixth
Respondent
UNITED
ULAMA COUNCIL OF SOUTH AFRICA
Seventh Respondent
SOUTH
AFRICAN HUMAN
RIGHTS
COMMISSION
Eighth Respondent
COMMISSION
FOR THE PROMOTION AND
PROTECTION
OF THE RIGHTS OF CULTURAL
RELIGIOUS
AND LINGUISTIC COMMUNITIES
Ninth
Respondent
and
UNITED
ULAMA COUNCIL OF SOUTH
AFRICA
First
Amicus Curiae
LAW
SOCIETY OF SOUTH AFRICA
Second
Amicus Curiae
SOUTH
AFRICAN LAWYERS FOR CHANGE
Third
Amicus Curiae
MUSLIM
ASSEMBLY (CAPE)
Fourth
Amicus Curiae
ISLAMIC
UNITY CONVENTION
Fifth
Amicus Curiae
COMMISSION
FOR GENDER EQUALITY
Sixth
Amicus Curiae
JAMIATUL
ULAMA KWAZULU NATAL
Seventh
Amicus Curiae
and
Case
No.:
4466/2013
In
the matter between:
TARRYN
FARO
Applicant
and
MARJORIE
BINGHAM N.O.
First
Respondent
(in
her capacity as the Executor of the deceased
Estate
of Moosa Ely – Estate No. 4190/2010)
MUJAID
ELY
Second
Respondent
SHARIFF
ELY
Third
Respondent
TASHRICK
ELY
Fourth
Respondent
MUSLIM
JUDICIAL COUNCIL
Fifth
Respondent
IMAM
IB SABAN
Sixth
Respondent
THE
MASTER OF THE HIGH COURT
Seventh
Respondent
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Eighth
Respondent
and
Case
No.:
13877/2015
In
the matter between:
RUWAYDA
ESAU
Plaintiff
and
MAGAMAT
RIETHAW ESAU
First
Defendant
THE
CABINET OF THE REPUBLIC
OF
SOUTH AFRICA
Second
Defendant
THE
MINISTER OF JUSTICE AND
CONSITUTIONAL
DEVELOPMENT
Third
Defendant
GOVERNMENT
EMPLOYEES PENSION FUND
Fourth
Defendant
MUSLIM
JUDICIAL COUNCIL
Fifth
Defendant
MUNEEBAH
JACOBS
Sixth
Defendant
Coram
:
Desai, Boqwana
et
Salie-Hlophe, JJ
Date
:
31 August 2018
JUDGMENT
BOQWANA
J
Introduction
[1]
Our
Constitution
[1]
opens with an acknowledgement that as the people of South Africa, we
recognise the injustices of our past and believe that South
Africa
belongs to all who live in it, united in our diversity. Human
dignity, the achievement of equality and the advancement of
human
rights and freedoms form part of the founding provisions of our
Constitution.
[2]
It also entrenches its supremacy by stating that “
law or
conduct inconsistent with it is invalid, and the obligations imposed
by it must be fulfilled
.”
[3]
[2]
The
Constitution recognises freedom of religion,
belief and opinion by conferring upon everyone that right.
[4]
It also permits for legislation recognising
“
marriages concluded under any
tradition, or system of religious, personal or family law
;
or
systems
of personal and family law under any tradition, or adhered to by
persons professing a particular religion
.”
[5]
Such recognition, importantly, must be consistent
with provisions of the Constitution.
[6]
[3]
Questions
of marriage, religion, law and the Constitution have occupied the
courts over a period of time. Marriage is an institution
that has a
character that goes wider than the individuals concerned. In
Fourie,
[7]
Sachs J remarked that the words “…‘
I do’
bring the most intense private and voluntary commitment into the most
public, law-governed and State regulated
domain
”.
Marriage is thus not only valued by the parties in marriage but by
their families, society and the State. It has consequences
both in
the private and public sphere. Privately it offers reciprocal rights
and duties of love and support between spouses; consequences
and
duties in relation to children and other important benefits. The law
places numerous other consequences with regards to marriage
such as
in a case of insolvency and law of evidence as regards to spouses in
civil and criminal proceedings and other areas. As
an institution,
marriage has also been seen as the “
source of socio-economic
benefits such as the right to inheritance, medical insurance
coverage, adoption, …, spousal benefits,
bereavement leave,
tax advantages and post-divorce rights
.”
[8]
In
Dawood
,
[9]
O Regan J impressed as well that marriage is not only a relationship
of great significance to the parties concerned, it is a relationship

that has public significance.
[4]
The
issues before us concern recognition and regulation of marriages
solemnised and celebrated according to the tenets of Islamic
law
(also referred to as ‘Muslim marriages’).
It is undisputed that marriages entered
into in terms of the tenets of Islam have not been afforded legal
recognition for all purposes.
The applicants argue that
non-recognition and non regulation of these marriages violates
the rights of women and children in
particular, in these marriages.
According to them, the State has failed in its “
duty to
respect, protect, promote and fulfil the rights in the Bill of
Rights
” as required in section 7(2) of the Constitution, in
the face of its constitutional and international obligations and that

the most effective way of dealing with this systemic violation of
rights, is an enactment of statute. This approach, according
to the
applicants, has been postulated by the courts in a number of
judgments dealing with issues concerning Muslim marriages before.
[10]
[5]
These
issues are without a doubt vexed. They attracted interest from
various groupings within the Muslim community, some of whom,
together
with State respondents pose different questions arising from freedom
of religion, religious entanglement, separation of
powers and many
other issues. It is therefore worth explaining the submissions made
by various parties in some detail, as will
be seen below. This is
more so because the matter is extensive, dealing with three
consolidated matters and a myriad of relief.
Before doing so, it is
worth examining the historical background surrounding Muslim
marriages in brief terms.
Historical
background
Judicial
intervention
[6]
Objectionable
views of intolerance against Muslims prevailed in colonial and
apartheid South Africa. These were mirrored in a number
of judgments
of the courts at that time. Cases such as
Brown
v Fritz Bronn’s Executors and Others,
[11]
Mashia Ebrahim v Mahomed Essop,
[12]
Seedat’s Executors v The
Master,
[13]
Kader v Kader,
[14]
and
Ismail v Ismail
[15]
are a reflection of those dim views held in the past. In
Ismail
in particular, the Court
regarded
the recognition of polygynous
unions
solemnised under the tenets of the Muslim faith as void on the ground
of it being contrary to accepted customs and usages,
then regarded as
morally binding upon all members of society. Recognition of
polygynous unions was seen as a regressive step and
entirely immoral.
[7]
Over
a period of time our courts have intervened and decried attitudes
rooted in discrimination and prejudice meted by apartheid
South
Africa against Muslim communities. In
Ryland
v Edros,
[16]
the Court gave effect to the contractual agreement between parties
who were married by Muslim rites. In
Fraser
v Children’s Court, Pretoria North and Others,
[17]
the Constitutional Court held that the Child Care Act 74 of 1983
(‘Child Care Act’) was unconstitutional because it

discriminated unfairly and unjustifiably against the rights of,
amongst others, fathers of children born of unions solemnised in

terms of the tenets of the Islamic faith. In
Amod
v Multilateral Motor Vehicle Accidents Fund (Commission for Gender
Equality Intervening
),
[18]
the Supreme Court of Appeal (‘SCA’), held that the
previous approach in relation to
boni
mores
of the community adopted in
Seedat Executors
and
Ismail
was “
inconsistent with the new
ethos of tolerance, pluralism and religious freedom which had
consolidated itself in the community even
before the formal adoption
of the interim Constitution on 22 December 1993
.”
[19]
The Court recognised monogamous Muslim spousal duty of support as
worthy of recognition.
[8]
Then
came
Daniels v Campbell N.O. and
Others
(‘
Daniels
HC’
),
[20]
where the High Court, dealing with the question whether a surviving
spouse in a monogamous Muslim marriage was a spouse, declared
the
Intestate Succession Act 81 of 1987 (‘
Intestate Succession
Act&rsquo
;) and the Maintenance of Surviving Spouses Act 27 of 1990
(‘Maintenance of Surviving Spouses Act’),
unconstitutional
for excluding a spouse in a Muslim monogamous
marriage for purposes of intestate succession.
[9]
The
matter went to the Constitutional Court where the Court in
Daniels
[21]
held that “[
t
]
he
word spouse in its ordinary meaning
includes parties to a Muslim marriage. Such a reading is not
linguistically strained. On the
contrary, it corresponds to the way
the word is generally understood and used
.”
The Court saw no need to find the impugned Acts unconstitutional and
held that the word spouse should be given a broad
and inclusive
construction. In its analysis, it found there to be “
no
reason why the equitable principles underlying the statutes should
not apply as tellingly in the case of Muslim widows as they
do to
widows whose marriages have been formally solemnised under the
Marriage Act.”
[22]
Notably, the Minister of Justice had been in support of the
confirmation of the High Court order.
[10]
Moseneke
J (as he then was), in a minority judgment in
Daniels
,
[23]
noted that the “
persisting
invalidity of Muslim marriages is … a constitutional
anachronism
” originating “
from
deep rooted prejudice on matters of race, religion and culture. True
to their worldview, judges of the past displayed remarkable

ethnocentric bias and arrogance at the expense of those they
perceived different. They exalted their own and demeaned and excluded

everything else. Inherent in this disposition, says Mahomed CJ, is
‘inequality, arbitrariness, intolerance and inequity’.”
[11]
He
held further that “[
t
]
hese
stereotypical and stunted notions of marriage and family must now
succumb to the newfound and restored values of our society,
its
institutions and diverse people. They must yield to societal and
constitutional recognition of expanding frontiers of family
life and
intimate relationships. Our Constitution guarantees not only dignity
and equality, but also freedom of religion and belief.
What is more,
section 15(3) of the Constitution foreshadows and authorises
legislation that recognises marriages concluded under
any tradition
or a system of religious, personal or family law. Such legislation is
yet to be passed in regard to Islamic marriages
.”
[24]
[12]
In
Khan v Khan,
[25]
the Court held that a polygamous Muslim marriage gave rise to a legal
duty on the part of the husband to maintain his wife as contemplated

in section 2(1) of the Maintenance Act 99 of 1998 (‘the
Maintenance Act&rsquo
;).
[13]
Another
significant judgment from the Constitutional Court came to the fore
in
Hassam v Jacobs N.O. and
Others.
[26]
The Court held
section 1
of the
Intestate Succession Act to
be
inconsistent with the Constitution to the extent that it did not
include more than one spouse in a polygamous Muslim marriage
in the
protection afforded to “a spouse”, and read the words “or
spouses” after the word “spouse”
wherever it
appeared in that section. The Minister of Justice had also supported
the confirmation of declaration of invalidity.
[14]
Insofar
as the views expressed in
Ismail
were
concerned Nkabinde J, had this to say—
“
[t]he
Court assumed, wrongly, that the non-recognition of polygynous unions
was unlikely to cause any real hardship to the members
of the Muslim
communities, except, perhaps, in isolated instances.’ That
interpretive approach is indeed no longer sustainable
in a society
based on democratic values, social justice and fundamental human
rights enshrined in our Constitution. The assumption
made in Ismail,
with respect, displays ignorance and total disregard of the lived
realities prevailing in Muslim communities and
is consonant with the
inimical attitude of one group in our pluralistic society imposing
its views on another.
Contrasting the
ethos which informed the boni mores before the new constitutional
order with that which informs the current constitutional

dispensation, the question remains whether affording protection to
spouses in polygynous Muslim marriages under the Act can be
regarded
as a retrograde
step and entirely
immoral? The answer is a resounding ‘No’. I emphasise
that the content of public policy must now
be determined with
reference to the founding values underlying our constitutional
democracy, including human dignity and equality,
in contrast to the
rigidly exclusive approach that was based on the values and beliefs
of a limited sector of society as evidenced
by the remarks in
Ismail.”
[27]
[15]
As
can be seen, the Courts have on a piecemeal basis tried to ameliorate
the hardships faced by women and children in Muslim marriages
in a
number of cases, including those not mentioned such as Rule 43
applications.
[28]
[16]
The
most recent decision is that of the Constitutional Court in
Moosa
N.O. and Others v Minister of Justice and Correctional Services and
Others,
[29]
where the Court confirmed the High Court order and held that section
2C(1) of the Wills Act 7 of 1953 (‘the
Wills Act&rsquo
;) is to
be read as including the following words “
for
the purposes of this sub-section, a ‘surviving spouse’
includes every husband and wife of a monogamous and polygamous
Muslim
marriage solemnised under the religion of Islam.
”
[17]
Alongside,
judicial intervention, changes have been effected to various pieces
of legislation over the years extending the meaning
of marriage to
religious marriages for purposes of such legislation.
[30]
South
African Law Reform Commission Project
[18]
In
1996, the South African Law Reform Commission (‘the Law Reform
Commission’) recommended that a Project Committee,
specifically
tasked with investigating the legal recognition of Muslim marriages
and related matters and to draft legislation to
recognise and
regulate Muslim marriages in accordance with the Constitution, be
appointed. The Project Committee published the
first issue paper in
May 2000 and circulated it for public comment in July 2000. Between
2000 and 2002, a public process ensued
involving various bodies
within the Muslim community.  In January 2002, the Project
Committee issued Discussion Paper 101,
including a draft Bill for the
recognition of Muslim marriages. A full report of the Law Reform
Commission on Islamic Marriages
and Related Matters was handed to the
then Minister of Justice in July 2003.  In the period 2003 to
2004, various responses
to the Law Reform Commission’s report,
including the draft Bill it had prepared, were lodged for
consideration by the Minister
of Justice. In October 2004, the
Project Committee reconvened to discuss concerns expressed in a
number of responses that had been
received. In March 2005, an
amendment to the proposed draft Bill was submitted by the Project
Committee. According to the Minister
of Justice, between 2008 and
2009 the Bill was in the final stages of preparation for submission
to Cabinet. However, due to the
intensity of objections, the
constitutional issues raised and the sensitivities of some aspects of
the Bill, the Minister was of
the view that the Bill should be
published for public comment before it can be finally considered by
Cabinet.
Progress
since 2009
[19]
In
response to the undertaking to provide a progress report before
Rogers J in the
Faro
matter
,
[31]
the Minister of Justice alleges that a decision was taken by Cabinet
on 8 December 2010 that the Bill be published for public comment
and
on 21 January 2011, it was published for public comment. According to
the Minister, more than 13 742 comments opposed
to the Bill were
received by way of short cellular
phone
comments. Approximately 7184 signed
petitions were received expressing objections to the Bill and a
further 77 substantive comments
were received from individuals who
objected to the promotion of the Bill on various grounds. These
objections are that the provisions
of the Bill are in conflict with
“
Sharia law
”,
are “
unIslamic
”,
and that several of the provisions are unconstitutional in that they
infringe on the religious freedom of Muslims and their
right to
equality.
[20]
Some
Muslim organisations indicated that any legislative intervention in
Muslim personal law will lead to transmogrification of
the
Sharia.
[32]
They further pointed out that the
Bill’s attempts to strike a balance between the tenets of
Sharia
and ensuring that they conform to the Constitution, have failed
dismally as the Islamic law concepts of
Talãq,
[33]
Faskh,
[34]
’
Iddah,
[35]
and
Khula’,
[36]
which have been incorporated in the Bill, can only be exercised by,
or apply to, either a husband or a wife, and not both, and
are
therefore discriminatory on the basis of gender.
[21]
Approximately
734 messages were received in support of the Bill. Support for the
Bill accordingly appears to be minimal compared
to the voluminous
objections to the Bill. However, one of the bodies, the United Ulama
of South Africa (UUCSA) assured that it
represented the majority of
the Muslims in the country. These bodies assured that there are more
Muslims in the country that will
support the Bill than those that
will not. The Minister of Justice however submits that it is
difficult to gauge the level of support
for the Bill by the Muslim
Community in light of the number of individual objections received,
in contrast to those in support
thereof. The
Mujlisul
Ulama
of South Africa vehemently
denies that UUCSA represents the majority of Muslims in South Africa
and that the majority will support
the Bill, and it further asserts
that UUCSA does not represent certain of the organisations it claims
to represent. The Minister
of Justice submits that even if the
proponents for the Bill were larger in number than the opponents, the
parliamentary process
for the enactment of the Bill is bound to be
turbulent.
[22]
The
Minister of Justice points to the complex theological and
constitutional issues raised by the Bill on Muslim marriages, with

some holding strong views on the proposed alignment of Islamic law
with the secular laws of the country. The divisions could create

unnecessary tension which must be avoided at all costs. The
Department of Justice has therefore elected to adopt a cautious
approach.
Central to the debate is what the correct interpretation of
Muslim Private Law
is and who has legitimacy and/or authority to render that
interpretation. Even those in support of the Bill such as the UUCSA,

have intimated that their members would insist on certain amendments
in the Bill such as appointment of only Muslim judges and
assessors
to preside over Muslim divorces or actions in which parties thereto
are Muslims. The opinions of certain scholars is
that this
jurisdictional precondition must be viewed within the
Qur’anic
definition of “marriage” as an act of worship and as a
sacred covenant that must, of necessity, be solemnised or terminated

by adherents of the Muslim faith. The Minister of Justice
accordingly, is of the view that forging ahead with the promotion of

the Bill, without more extensive public participation and consensus
from the Muslim community, will more than likely have the result
that
support from the Muslim community would fall away.
The Imam Project
[23]
Both
the Ministers of Justice and of Home Affairs refer to the project of
registering Imams as marriage officers by the Department
of Home
Affairs. This they see as a form of according ‘recognition’
to Muslim couples. The respective Ministers allege
that there had
been successful consultation in regard to this project. During
training the Imams are encouraged to advise prospective
couples to
enter into antenuptial contracts in terms of their religious tenets,
which can be accommodated as long as the provisions
of the contract
comply with the Constitution. Imams can still marry those that do not
wish to enter into an antenuptial contract.
As a result four
pro
forma
contracts have been developed
by various Muslim organisations. The Department of Home Affairs has
however not been party to these
agreements. The two Departments,
namely of Justice and of Home Affairs are of the view that the
antenuptial contracts could possibly
form the basis for the division
of property on dissolution of marriage, either by divorce or death
but they could ensure that Muslim
tenets are taken into account,
without giving preference to any particular Muslim school of
jurisprudence, which the Bill is alleged
to do. The Departments are
in agreement that the Department of Home Affairs will continue to
deal with the registration of marriages
and the Department of Justice
will continue to be responsible for the dissolution by divorce and
the proprietary consequences (it
is not explained how so).
Possible Omnibus Bill
[24]
The
Minister of Justice submits that the two Departments are to take the
process forward by looking at the amendments to the existing

legislative framework to give effect to the above approach or even
exploring the possibility of drafting an entirely new Bill which

regulates the registration of all religious marriages and the
dissolution thereof. The Departments believe that this approach
should be more acceptable to the Muslim community.
[25]
Finally,
the Ministers of Justice and of Home Affairs deny that their
Departments have been dilatory in giving effect to a process
giving
effect to the recognition of Muslim marriages. They aver that the
issue is complex and sensitive. They have been doing everything
in
their power to give effect to rights of vulnerable Muslim women, they
will continue to collaborate with the Muslim community
to ensure a
solution is found that accords with it and possibly other religious
communities who are currently not recognised, who
also may have a
right to have their marriages recognised by statute.
[26]
Now it
appears that there are investigations by the Law Reform Commission
that are being undertaken with the view to developing
a paper on one
Marriage Act for all religions. It also appears that there had been
talks regarding formal recognition of Hindu
marriages as well.
Relief sought
[27]
Before
us are
three consolidated applications brought by the Women’s
Legal Centre Trust (‘WLC’), Tarryn Faro (‘Faro
matter’)
and Ruwayda Esau (‘Esau matter’). The
primary applicant is the WLC, which also represents Ms Faro.
WLC
application
[28]
In
August 2009, the WLC launched an application for direct access to the
Constitutional Court, seeking essentially the same relief
as in this
application.
[37]
In a judgment penned by Camero
n J, dismissing
the application for direct access, the Constitutional Court stated
that “
a multi-stage litigation
process has the advantage of isolating and clarifying issues as well
as bringing to the fore the evidence
that is most pertinent to them.
This is undeniably a case in which that process would be beneficial
not only to the litigants but
also for the Court.”
[38]
[29]
The
Court pointedly observed that “[
t
]
he
application elicited an intense response from a wide range of
organisations concerned with the position of women in the Muslim

community, the application of Islamic law and the interests of the
Muslim community as a whole. Five such organisations secured
amicus
status, while an application by a further organisation to intervene
was held in abeyance pending determination of the preliminary
issues.
It is clear from these applications that not only the legal issues,
but also the factual issues, are much in dispute. They
may require
the resolution of conflicting expert and other evidence. It is not
appropriate for this Court to attempt that task
as a court of first
and final instance.
”
[39]
[30]
The
Constitutional Court’s observations with regards to the
intensity and complexity of the issues raised in debate by various

parties as well as the level of interest and intervention by various
bodies, ranging from women’s groups, government, constitutional

bodies, religious, legal and other important organisations within the
Muslim community, are equally applicable in the matters before
this
Court.
[31]
The
Court emphasised that the dismissal of that application did not
“
reflect on the substance of
the claim that the President and Parliament are under a duty to enact
the legislation in question
.”
[40]
[32]
This
Court is now seized with determining the substance of that claim,
amongst others.
[33]
The
WLC prays for the following relief:
33.1.
Declaring that the
President, in his capacity as the head of the national executive,
together with National Cabinet, and the National
Assembly, have
failed to fulfil the obligation imposed on them by section 7(2) of
the Constitution to protect, promote and fulfil
the rights in
sections 9 (1), (2), (3) and (5), 10, 15(1) and (3), 28(2), 31 and 34
of the Constitution, by preparing and initiating,
diligently and
without delay as required by section 237 of the Constitution, a Bill
to provide for the recognition of Muslim marriages
as valid marriages
for all purposes in South Africa and to regulate the consequences of
such recognition.
33.2.
Declaring that the
Parliament of the Republic of South Africa and the President, in his
capacity as Head of State, have failed to
fulfil the obligation
imposed on them by section 7(2) of the Constitution to protect,
promote and fulfil the rights in sections
9 (1), (2), (3) and (5),
10, 15(1) and (3), 28(2), 31 and 34 of the Constitution by enacting
and bringing into operation, diligently
and without delay as required
by section 237 of the Constitution, an Act of Parliament providing
for the recognition of Muslim
marriages as valid marriages for all
purposes in South Africa and to regulate the consequences of such
recognition.
33.3.
Directing the President,
together with the national Cabinet, and Parliament, to fulfil those
obligations within twelve months by
preparing, initiating, enacting
and bringing into operation an Act of Parliament providing for the
recognition of Muslim marriages
as valid marriages for all purposes
in South Africa and regulating the consequences of such recognition:
Provided that if the relevant
legislation is referred to the
Constitutional Court by the President in terms of section 79(4)(b) of
the Constitution or if the
Act is referred to the Constitutional
Court by members of the National Assembly in terms of section 80 of
the Constitution, the
period of twelve months shall be extended by
the period between such referral and the decision of the
Constitutional Court.
[34]
An
order declaring that the State had breached its international
obligations which was also sought has since been abandoned.
[35]
In the
alternative, the WLC seeks relief declaring the Marriage Act 25 of
1961 (‘the Marriage Act), the Divorce Act 70 of
1979 (‘the
Divorce Act&rsquo
;) and the Recognition of Customary Marriages Act
120 of 1998 (‘the Recognition Act’), insofar as they fail
to provide
for and regulate Muslim marriages as valid for all
purposes in South Africa, to be inconsistent with the relevant rights
listed
above.
[36]
Pending
the promulgation of legislation, to remedy these inconsistencies, in
the interim, WLC seeks a reading-in to be done in the
Recognition Act
to provide for the recognition and regulation of Muslim marriages.
[37]
In addition to or in the alternative to the
reading-in, the WLC seeks to suspend the declaration of invalidity in
relation to the
various impugned legislation for twelve months, for
Parliament to correct the defects, failing which the declaration of
invalidity
will take effect and the reading-in into the Recognition
Act shall occur.
[38]
In the further alternative to the above prayers,
the WLC would seek a declarator deeming Muslim marriages to be valid
in terms of
the Marriage Act and the
Divorce Act, and
that the common
law be extended to include Muslim marriages.
[39]
Lastly, the WLC seeks an order declaring the
pro
forma
marriage contract, prepared by the
Muslim Judicial Council (‘the MJC’) to be contrary to
public policy and unenforceable
in law.
[40]
During the course of hearing of oral argument,
Counsel for the WLC presented the Court with various alternative
draft orders.
Faro
application
[41]
Faro
launched an application on 23 March 2013 incorporating Part A (review
application) and Part B (constitutional relief). Part
A was an
interim relief sought to preserve the status quo pending the
determination of the relief sought in Part B. In Part B,
Faro
seeks an order declaring that marriages solemnised in accordance with
Islamic Law are deemed to be valid marriages in terms
of the
Marriages Act, alternatively that the common law definition be
extended to include Muslim marriages. This overlaps with
the relief
sought by the WLC in the alternative.
[42]
Where
the two matters differ is that in the Faro application, Faro further
seeks an order declaring the failure by the Minister
of Justice to
implement policies and procedures, which accord with the Promotion of
Administrative Justice Act (PAJA),
[41]
to regulate enquiries by the Master of the High Court (‘the
Master’) into the validity of Muslim marriages when persons

purporting to be spouses seek to claim benefits in terms of the
Intestate Succession Act and
Maintenance of Surviving Spouses Act, to
be unconstitutional and suspending this declaration for 18 months to
allow the Minister
time to put in place such policies and procedures.
This relief is opposed by the Master and the Minister for Justice.
[43]
The
WLC argues that this relief follows from the fact that decisions by
the Master amount to administrative action and thus must
comply with
PAJA. A ‘spouse’, which term includes parties to Muslim
marriages as held in
Daniels
,
[42]
may be entitled to various benefits under the Interstate Succession
Act and the Maintenance of Surviving Spouses Act. The Master
has wide
quasi-judicial powers under the Administration of Estates Act 66 of
1965 (‘
Administration of Estates Act&rsquo
;) to determine
factual disputes, including the determination of beneficiaries. Such
determinations must be made in a procedurally
fair manner including
the giving of notice of, and reasons for, the proposed action and be
afforded a fair opportunity to make
representations. In the absence
of a procedure to enable the Master to hold enquiries into disputes
regarding the status of spouses
in Muslim marriages, the Master is
unable to make such a determination in a procedurally fair manner.
There is a duty on the State
to put into place regulatory measures to
give effect to the various decisions of the Courts affording
recognition to the consequences
of Muslim marriages. Moreover, there
is a positive obligation on the Minister of Justice as the political
head of the department
responsible for the administration of estates,
to establish the necessary policies and procedures for the holding of
enquiries
by Masters to resolve disputes concerning the status of
persons purporting to be spouses in Muslim marriages.
[44]
Part
A of the Faro application was determined by Rogers J in the
Faro
[43]
matter in favour of the applicant. The facts of that case appear in
the judgment, and need not be repeated save to mention that
Faro
married the late Moosa Ely (‘Ely’) on 28 March 2008, in
accordance with Islamic tenets. Imam Saban, who officiated
their
marriage, was not a licensed marriage officer and accordingly, the
union did not constitute a marriage in civil terms. Following
an
argument with Faro, Ely who was ill at the time, sought and obtained
a
Talãq
certificate from Imam Saban. This was done without enquiring from
Faro. That meant in terms of Islamic law, that the marriage was

dissolved. According to Faro, the
Talãq
was revoked during the ’
Iddah
period with the resumption of sexual relations. On 8 April 2010,
without Faro’s knowledge, Ely’s adult daughter from
an
earlier marriage obtained a certificate from the Muslim Judicial
Council (‘MJC’) declaring that the marriage between
Faro
and Ely had been annulled. Faro was appointed as executrix of the
Ely’s deceased estate. The dispute as to whether the
marriage
subsisted at the time of Ely’s death arose between Ely’s
daughter with others against Faro, resulting in affidavits
and
letters written to the Master. According to Faro she was forced out
of her family home where she lived with Ely and forced
to live in
shelters. Her minor children were taken into care. Faro was
eventually removed as executrix by the Master. The Master
dismissed
Faro’s objections, apparently relying on the MJC’s views
that she was not the deceased’s wife.
[45]
Having
considered expert evidence regarding the tenets of Islam, Rogers J
set aside the Master’s decision and
declared that the
marriage between Faro and Ely subsisted at the date of the latter’s
death, and that she be recognised as
the ‘spouse’ for the
purposes of
Intestate Succession Act and
as a ‘survivor’
for the purposes of the Maintenance of Surviving Spouses Act.
[46]
Part
B, which is before this Court, was postponed by agreement between the
parties for approximately ten months on the basis undertaken
by the
Minister of Justice to file an affidavit setting out the progress
made in regard to the Bill, which was alleged to be in
process.
Esau Application
[47]
This
application was borne out of an action in which a constitutional
challenge was brought in terms of a stated case. The Plaintiff
(Esau)
claims that the failure on the part of the Cabinet and the Minister
of Justice (Second and Third Defendants) to initiate
and prepare
legislation providing for the recognition of Muslim marriages as
valid marriages in South Africa and regulating the
consequences of
such recognition, discriminates against Muslim women married in terms
of Muslim rites on the grounds of their gender
and/or their religion
and is inconsistent with sections 9(3) and 7(2) of the Constitution.
This is based primarily on an alleged
breach of the right to equality
on the grounds that Muslim women are unfairly discriminated against.
[48]
Esau
calls for a declaration that the aforementioned failure is
inconsistent with the Constitution and directing the Cabinet and
the
Minister of Justice to prepare and initiate the required legislation
within 18 months. Further, Esau prays for a declaration
that a
de
facto
monogamous marriage concluded in terms of Muslim rites
shall be regarded as valid for the purposes of the Matrimonial
Property
Act 88 of 1984 (‘
Matrimonial Property Act&rsquo
;), the
Divorce Act and
the common law duty of support upon divorce.
[49]
This
relief is opposed by Mr Esau (the first defendant),
the
Cabinet and the Minister of Justice.
Applicants’
submissions
[50]
Most
of the argument in respect of the applicants’ cases overlaps.
The judgment mainly draws from the WLC’s submissions,
as the
main applicant and will highlight any differences in focus between
the various applicants or
amici
in
support of the WLC’s claim, to the extent necessary,
particularly on the appropriate remedy.
[51]
The
applicants submit that despite judicial intervention and piecemeal
litigation the law still bears the dent of historical discrimination.

Intervention by the courts has, in their view, been confined to the
facts and consequences that were called to be addressed in
particular
cases.  Piecemeal litigation is undesirable both from the point
of view of the individuals affected, many of whom
have no resources
or capacity to litigate, as well as the administration of justice.
[52]
WLC
alleges that it brings this application in the interest of a class of
persons: women who visit their offices often in large
numbers asking
for legal representation in cases where their marriages have been
dissolved by death or divorce. It also brings
this application in the
public interest in terms of section 38 of the Constitution. At the
heart of the application by the WLC
is the account of the hardships
faced by women in Muslim marriages.
WLC – Rights
Violations
[53]
The
WLC’s argument proceeds from the premise that section 7(2)
provides that “[
t
]
he state must respect, protect,
promote and fulfil the rights in the Bill of Rights
.” The
“
State
” is not defined in the Constitution but was
held by the Constitutional Court to include “
all those
actors who derive their authority from the Constitution, including
Parliament, government at national, provincial and
local levels,
state institutions supporting constitutional democracy created by
Chapter 9 of the Constitution,  ‘state
departments and
administrations’  as well as bodies created by
statute
.”
[44]
[54]
Coupled
with section 7(2) is section 8(1) which provides that the Bill of
Rights “
binds the legislature, the executive, the judiciary
and all organs of state
.” The Constitutional Court has held
that this provision in certain circumstances imposes a positive
obligation on the State
“
to provide appropriate protection
to everyone through laws and structures designed to afford such
protection
.”
[45]
In addition, i
mplicit in section 7(2) is that any steps
taken to fulfil this duty must be reasonable and effective.
[46]
[55]
Given the extensive and ongoing rights
violations, the State’s inaction, the insufficiency of
piecemeal recognition, and the
inordinate delay, the WLC argues that
the only reasonable and effective means of fulfilling the duty under
section 7(2) is through
an Act of Parliament recognising and
regulating Muslim marriages.
[56]
The WLC argues that the following rights have
been infringed: equality, dignity, freedom of religion, best interest
of the child,
and access to courts.
[47]
[57]
As for equality, the WLC argues that the failure
to recognise Muslim marriages, alternatively the exclusion of Muslim
marriages
from the Marriage Act,
Divorce Act and
Recognition Act
results in differentiation between the following categories of
people: (a) persons married in terms of the Marriage
Act compared to
those in monogamous Muslim marriages; (b) persons married in terms of
the Marriage Act compared to those in polygynous
Muslim marriages;
and (c) persons in polygynous customary marriages compared to those
in polygynous Muslim marriages. It argues
further that no legitimate
government purpose has been advanced by the State respondents, nor
could such a purpose be advanced
in light of the dicta in
Daniels
[48]
and the fact that the Recognition Act recognises polygynous customary
marriages as valid. Accordingly, the State’s failure
to
recognise Muslim marriages violates section 9(1) of the
Constitution as this category of persons is denied equal protection

and benefit of the law. Further, there has been a section 9(3)
violation as the differentiation is on four listed grounds: directly

on religion, marital status and indirectly on gender and sex. As per
section 9(5), this discrimination on a listed ground is presumed
to
be unfair and this presumption has not been rebutted.
[58]
With regards to dignity, the WLC contends that
dignity is both a value and a right.
[49]
To treat spouses in Muslim marriages as unworthy of protection of the
law devalues, stigmatises and further marginalises this vulnerable

minority group. To remedy this infringement, spouses in Muslim
marriages should be afforded the protection of the law through the

enactment of a statute.
[59]
As for access to courts, WLC contends that
spouses in Muslim marriages have no access to the justice system for
the purposes of
regulating their marriages with regards to
proprietary rights, divorce, maintenance, and custody. This leaves
disputes unresolved
and parties without effective remedies. Further,
even when a religious tribunal makes a decision, it is unenforceable.
Lastly,
courts do not have ‘automatic’ supervision over
children of Muslim marriages who also lack the benefit of Family
Advocate’s
reports, as contrasted with children in civil or
customary marriages. This violates the section 34 right to have
disputes resolved
by a court in a fair public hearing. The
consequences of this infringement include maltreatment, evictions and
economic hardships
for women and children of Muslim marriages.
[60]
In terms of section 28 of the Constitution, the
best interests of a child are of paramount importance in every matter
concerning
that child. Although this duty falls primarily on the
parents, the Constitutional Court has held that the State “
must
provide the legal and administrative infrastructure necessary to
ensure that children are accorded the protection contemplated
by
section 28
.”
[50]
As stated above, upon divorce the care, contact, and maintenance of
children of Muslim marriages is not subject to ‘automatic’

court oversight and thus, without special application to court,
remain unregulated. Secondly, the Marriage Act sets a minimum age
for
marriage,
[51]
whereas such a limitation is not placed on Muslim marriages. In both
these instances, the State has failed to ensure that the legal
and
administrative infrastructure is in place to ensure that children of
Muslim marriages are afforded the protection of section
28.
[61]
The rights of individuals and groups to hold
religious beliefs and practise their chosen religion are enshrined in
sections 15(1)
and 31(1) of the Constitution. WLC does not argue that
these rights have been infringed, but proceeds to reply to the State
respondents’
contention that legislation recognising and
regulating Muslim marriages would infringe upon section 15(1), by
contending that the
right to freedom of religion does not trump other
rights and moreover that courts will not protect religious practices
that infringe
other rights.
[52]
As such, religious practices in respect of divorce which violate the
right to equality cannot be justified on the basis of the
right to
freedom of religion.
[62]
WLC contends that no section 36 limitation
analysis arises as the infringements are as a result of a lack of
legislative recognition
and as such there is “no law of general
application”.
[53]
[63]
Finally, the WLC argues that the
pro
forma
marriage contract is contrary to public
policy as it violates rights in the Bill of Rights.
WLC –
International Duties
[64]
WLC argues that South Africa has ratified
numerous international and regional human rights treaties relevant to
the protection and
promotion of women’s fundamental rights. The
four of primary consideration are: the Convention on the Elimination
of all
forms for Discrimination Against Women (‘CEDAW’);
[54]
the International Covenant on Civil and Political Rights
(‘ICCPR’);
[55]
the Protocol to the African Charter on Human and People’s
Rights on the Rights of Women in Africa (‘Women’s
Protocol’);
[56]
and the Southern African Development Community Protocol on Gender and
Development (‘SADC Protocol’).
[57]
[65]
It contends that if a duty is imposed by an
international instrument, for it to not be rendered nugatory, content
must be given
to it as held by the Constitutional Court in
DE
v RH.
[58]
Section 39 of the Constitution peremptorily enjoins a court to
consider international law when interpreting the Bill of Rights.
[66]
When applied to Muslim marriages in South Africa,
the WLC argues that CEDAW obliges the State to take all appropriate
measures to
ensure the equality of women in Muslim marriages,
including the proprietary consequences and rights and
responsibilities of the
children; to ensure the economic rights of
women in existing polygynous marriages; to provide a minimum age for
marriage; to provide
for registration of all marriages; to provide
for individual choice as to the applicable family law at any stage
during the relationship;
and to ensure that courts review decisions
of religious bodies. This, the WLC contends, can only be achieved
through legislation.
[67]
The ICCPR provides for the freedom of religion
subject to the protection of fundamental rights; prohibits marriages
entered into
without free and full consent; and obliges the State to
take appropriate steps to ensure the equality of rights and
responsibilities
of spouses during the marriage and at its
dissolution.
[68]
The Women’s Protocol obliges the State to
combat discrimination against women through appropriate legislative
and other measures
and guarantees that women are equal before the law
and entitled to equal protection and benefit of the law. Article 6
provides
that the State shall ensure that women and men enjoy equal
rights and are regarded as equal partners in marriage. Article 6
further
obliges the State to enact appropriate national legislative
measures to guarantee that the rights of women in marriage, including

polygynous marriages, are promoted and protected. Lastly, Article 7
provides that the State shall enact legislation to ensure that
women
and men have the same rights to seek a divorce and to an equitable
share in the joint property.
[69]
SADC Protocol similarly obliges the State to
adopt legislative, administrative, and other measures to ensure
equality before, and
equal protection and benefit of, the law, as
well as to ensure that women and men enjoy equal rights in marriage
and are regarded
as equal partners in marriage.
[70]
The absence of legislation recognising and
regulating Muslim marriages is in conflict with these and other
international and regional
conventions, argues the WLC.
[71]
According to the WLC, an order directing the
State to enact legislation would not infringe the separation of
powers, as there is
a constitutional duty on courts to ensure
constitutional compliance of the executive and legislature and
moreover to declare any
unconstitutional conduct invalid and provide
an effective remedy.
[59]
[72]
As for the issue of doctrinal entanglement,
[60]
firstly this does not arise as the Court is not being asked to
adjudicate upon any religious precepts. Secondly, if it does arise
it
is not in the usual sense and is an appropriate case for
intervention. The courts have already set precedent, becoming
involving
in and giving orders in apparently religious matters. This
doctrine is not absolute as the courts have not been reluctant, when

presented with clear rights violations, to go against religious
doctrine.
[61]
Respondents’
submissions
The
President
[73]
The President’s primary counterarguments
are that South Africa’s international obligations do not create
enforceable
domestic rights unless and until these obligations have
been incorporated into domestic law by enacting legislation, as was
held
by the majority of the Constitutional Court in
Glenister.
[62]
[74]
There have been no rights violated by the State
on the following bases: the Marriage Act is secular in nature and
does not discriminate
on the basis of religion as discussed in
Singh
v Ramparsad.
[63]
Similarly, the Civil Union Act
[64]
is secular. Furthermore, the primary argument of the WLC, that the
unfair discrimination may be found in the Recognition Act, is
without
merit. That Act was enacted on the bases that customary law is a
recognised part of our system of laws,
[65]
whereas no religious laws have been recognised. Furthermore,
customary law is defined in the Recognition Act to mean “
the
customs and usages traditionally observed among the indigenous
African peoples of South Africa and which form part of the culture
of
those peoples
.” Thus purely religious
marriages cannot be equated with customary marriages. Lastly, the
Constitutional Court in
Volks N.O.
[66]
held that it was justifiable to differentiate between married and
unmarried people amidst the uncontested recognition of the systemic

vulnerability of women in society.
[75]
There has been no actionable delay on the part of
the State as the State has taken steps to implement legislation
recognising and
regulating Muslim marriages as set out by the
Ministers of Justice and of Home Affairs.
The
Minister of Justice
[76]
With regard to South Africa’s international
obligations, the Minister of Justice contends that the CEDAW
committee has reaffirmed
its position: polygyny should be abolished
and identity-based personal status laws perpetuate
discrimination.
[67]
The executive and legislature should be allowed to investigate the
possibility of an omnibus Marriage Act which would avoid creating

multiple family law systems. Further, spouses in Muslim marriages are
able to register a civil marriage and the Imam project seeks
to
enable this process.
[77]
With regards to the section 7(2) arguments
concerning the duties on the State to enact legislation, the Minister
of Justice contends
that while this duty may be positive, the State
has a choice on how to fulfil this duty as long as the manner it
chooses is “reasonable
and effective”.
[68]
The State has fulfilled this duty by enacting legislation which
respects, protects and promotes the rights contended to have been

violated. This legislation includes the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000 (‘PEPUDA’);

the Children’s Act 38 of 2005 (‘the Children’s
Act’); the Domestic Violence Act 116 of 1998 (‘the
Domestic Violence Act&rsquo
;); and the Criminal Law (Sexual Offences
and Other Related Matters) Amendment Act 32 of 2007 (‘the
Sexual Offences Act’).
In this light, the Minister of Justice
contends that the principle of subsidiarity
[69]
renders the relief sought incompetent as legislation (PEPUDA) has
been enacted to give effect to the principal right in issue:

equality.
[78]
Additionally, section 15(3) of the Constitution
does not impose an obligation on the State to enact legislation in
respect of any
particular religious group. The section is not
peremptory as held by the Constitutional Court in
Fourie
.
[70]
Moreover, the Minister contends, without more, that the relief sought
is defeated by section 15(3) itself.
[79]
As for the alleged rights violations, the
Minister contends that section 39(2) obliges courts to develop the
common law in order
to promote the spirit, purport and objects of the
Bill of Rights. This, the Minister contends, has been done through
the relief
issued by the various courts concerning maintenance,
custody, abusive relationships and pensions, which “
ensure
that Muslim women are not unduly prejudices whilst the State
continues to pursue its investigation into
”
the recognition and regulation of Muslim marriages. As for the
argument concerning the Recognition Act, the Minister echoes
the
arguments of the President in that this Act is based on customary law
which is recognised in the Constitution.
[80]
Given that the doctrine of entanglement is a part
of our law,
[71]
the diverse opinions, and the importance of religious freedom, the
Minister contends that it would be unconstitutional for this
Court to
direct the State to regulate religion.
[81]
The Minister contends that the relief sought
would infringe upon the principle of the separation of powers, which
is central to
the structural design of our constitutional democracy.
The particular facts of this matter require public participation to
give
effect to our participatory democracy. The complementary
principle of deference finds application as the executive is
primarily
placed to deal with the issues that arise concerning this
matter such as factual enquiries, political compromises,
implementation
strategies, budgetary considerations and debates on
doctrinal issues. While conceding that courts may interfere to ensure
compliance
with the Constitution, the Minister contends that the
correct forum for this issue is through the parliamentary processes,
which
are structured to ensure public participation and proper
ventilation of the issues. On a similar note, the Minister contends
that
this matter raises disputes of fact that cannot be resolved on
the papers.
[82]
Lastly, the Minister opposes the relief sought in
the Faro application, concerning the implementation of procedures for
the Master
to resolve disputes concerning status in Muslim marriages.
This, the Minister contends, is in conflict with the case law as to
the Master’s powers
[72]
and no basis has been put forward for why such enquiries should be
limited to Muslim marriages, as there are infinite circumstances
in
which a person may be prejudiced by a decision of the Master.
Further, it is unclear whether the Minister has the power to lay
down
such policies and procedures in terms of the
Administration of
Estates Act.
[73
]
The Minister of Home
Affairs
[83]
With regards to the State’s international
duties, the Minister contends that none of the cited conventions
imposes an obligation
to enact legislation and none have been
domesticated into South African law as per section 231 of the
Constitution.
[84]
As for the section 7(2) arguments, the Minister
contends that this section does not impose an obligation to enact
legislation as
contended for by the WLC. There is no express duty on
the State to enact legislation of this kind, unlike sections 9(4),
32(2),
and 33(3) of the Constitution. Similarly, this alleged duty
cannot be equated with socio-economic duties as imposed by sections

26(2) and 27(2) of the Constitution. Furthermore, the executive is
vested with a discretion, not an obligation, to prepare and
initiate
legislation. Similarly, the legislature is vested with legislative
powers, not obligations. Section 237 concerns “constitutional

obligations” which do not arise as the powers in issue are
permissive.
[85]
The Minister addresses each alleged violation of
rights and contends that no violations have been established. On the
right to equality,
the Minister contends that there is no legislation
recognising and regulating any religious marriages, the Marriage Act
applies
to all and there is no impediment to parties to Muslim
marriages to register their marriage civilly. Such parties are free
to regulate
their affairs by contract and whichever route they choose
is a matter of personal choice. Thus there is no differentiation and
no infringement.
[86]
As for the right to dignity, this right includes
treating personal choices to be of value,
[74]
such as choosing to have one’s marriage regulated by Islamic
law or choosing a civil marriage with an antenuptial regime
which
mirrors Islamic law. On the right to religious freedom (sections 15
and 31), there is no duty to enact, the section is permissive
not
peremptory.
[87]
As for right of children, the Children’s
Act provides that marriage includes those in accordance with
religious rites and
thus includes Muslim marriages that are not
registered under the Marriage Act. Furthermore, the Children’s
Act provides for
a blanket prohibition on child marriages thus
setting a minimum age for marriage irrespective of religious
tenets.
[75]
Lastly, the Minister contends that the right to access to courts does
not apply in this scenario as compared with instances where
the
courts have been bypassed (e.g. execution of property with judicial
oversight).
[76]
Muslims are not precluded by want of marital recognition from
approaching courts to resolve disputes. The Minister contends that

the principle of the separation of powers finds application as it is
the legislature’s role to make law and the court’s
to
interpret and apply that law. To direct the State to enact
legislation would do violence to this carefully constructed
principle.
This is unprecedented relief as courts have only
interfered in the past where there is a procedural irregularity in
the passing
of the legislation
[77]
or that the legislation is unconstitutional. As held by the
Constitutional Court, courts may not prescribe the subject-matter of

legislation .
[78]
To direct the State to enact this legislation would be to ignore the
current process which is underway to investigate an omnibus
Act which
would apply to all religious marriages.
[88]
Furthermore, the Minister contends that the
doctrine of entanglement is invoked as the relief sought would result
in legislating
upon or amending key aspects of
Sharia
law. This is distinguishable from the piecemeal development of the
common law.
[89]
As for the
pro forma
contract, the Minister contends that to make the declaration sought
would be to resolve doctrinal disputes as the contract was
allegedly
prepared by the Muslim Judicial Council according to
Sharia
law; such an order may infringe section 15 and 31; and the
contracting parties are not before the court and thus to do so would

be to make an order in the abstract.
Speaker
of the National Assembly & Chairperson of the National Council of
Provinces
[90]
The Speaker of the National Assembly (‘the
Speaker’) and Chairperson of the National Council of Provinces
(‘Chairperson’)
deny that Parliament has failed to fulfil
any obligations as alleged by the WLC, on the grounds that Parliament
has not received
a draft Bill over which it could exercise its
legislative authority. As such there is no conduct of Parliament that
can be impugned.
It is rather the existing legislation that should be
examined for constitutional consistency. Parliament is not vested
with the
power to initiate and prepare legislation. This power is
vested in the executive. This much has been conceded by the WLC. The
remedies
sought will infringe upon the separation of powers and
potentially have retrospective effects. The Court should allow the
legislative
process to run its natural course as this will ensure
public participation and debate around a sensitive, polycentric issue
with
many competing interests in play. Should the Court be minded to
grant the relief sought, the Speaker and the Chairperson submit
that
a period of 24 to 36 months should be given to allow the legislative
process to run its proper course.
Lajnatun
Nisaa-Il Muslimaat [Association of Muslim Women of South Africa] &
United Ulama Council of South Africa [UUCSA]
[91]
The Association of Muslim Women of South Africa
(‘AMWSA’) and UUCSA oppose the relief sought by the WLC.
They contend
that the matter raises factual disputes which cannot be
resolved in motion court and that the WLC as a trust lacks legal
standing
to bring this matter. Further they contend that the relief
sought would violate section 9(4) of the Constitution by unfairly
discriminating
against Muslims on the ground of religion as no other
religion has been “targeted” by the WLC. Lastly, these
respondents
raise the principle of the separation of powers and
issues of doctrinal entanglement as prohibiting the relief sought.
South
African Human Rights Commission
[92]
The South African Human Rights Commission (‘Human
Rights Commission’) has limited its submissions to the issue of
South
Africa’s international obligations and the declarator
sought by WLC in Prayer 6. It provides an overview of international

law, submitting that South Africa has a dualist approach:
international agreements are external and binding between party
States;
whereas only those international agreements which have been
domesticated by enacting legislation have the force of law within
South
Africa.
[79]
International agreements which have been ratified but not
domesticated play an interpretive role in South African Courts:
section
39(1) enjoins a court to apply international law when
interpreting rights in the Bill of Rights; and section 233 provides
that
courts should prefer any reasonable interpretation of domestic
legislation that is consistent with international law. The four
international agreements presented by the WLC have been ratified but
not domesticated and thus play an interpretive role but “cannot

be [sources] of rights and obligations” as held by the
Constitutional Court.
[80]
[93]
The Human Rights Commission submits that CEDAW
and ICCPR require the State to regulate the consequences of all
marriages. Regulation
requires recognition and the Human Rights
Commission submits that legislation is necessary for compliance with
South Africa’s
international obligations. As no legislation has
been enacted, it submits that South Africa is not in compliance with
its international
obligations.
[94]
Although concluding as such, the Human Rights
Commission is of the view that a declaratory order seeking an
international law remedy
is not warranted in the circumstances, given
the principle that courts should not give merely advisory orders that
lack practical
effect and the fact that the State has shown an
intention of enacting, and to have taken steps to enact such
legislation. It, however,
expounded its stance during oral argument
submitting that WLC is entitled to an order declaring that the State
is required to pass
legislation that recognises and regulates Muslim
marriages. It has been unreasonable for the State to leave the
obligation to the
judiciary via piecemeal litigation. There is a need
for legislation. Furthermore, failure to legislate is unreasonable
because
South Africa willingly signed on to various international
instruments that impose an obligation on the international plane to
adopt
legislation that recognises all marriages and regulates them.
It would be unreasonable conduct for it to decide that the rights
of
women should be fulfilled only by means of piecemeal development of
the common law.
[95]
The Human Rights Commission further contends that
no religious marriages are automatically recognised: religious
marriages are only
recognised if they are solemnised by a registered
marriage officer. The position adopted by the State respondents is at
odds with
Glenister
and thus incorrect. The State does not have a free choice whether or
not to legislate; it is constitutionally obliged to do so.
This Court
should at the very least make an order declaring a domestic law
obligation in terms of section 7(2) to enact legislation
within a
reasonable time, even if the court does not find that the State has
not yet failed to fulfil that obligation. The Court
should make an
order declaring that the common law definition of marriage does not
exclude any marriage that, while being monogamous
in fact, is
potentially polygamous by virtue of the tenets of the religion of the
parties. The definition cannot extend to factually
polygamous
marriages in the absence of provisions such as those provided for in
the Recognition Act.
Commission
for the Promotion and Protection of the Rights of Cultural, Religious
and Linguistic Communities
[96]
The Commission for the Promotion and Protection
of the Rights of Cultural, Religious and Linguistic Communities
(‘CRL’)
initially opposed the recognition of Muslim
marriages as such recognition would be discriminatory to other
religions. The CRL has
subsequently amended its position, filing a
supplementary affidavit and heads of argument stating that the
previous position was
based on a misunderstanding of its
constitutional mandate by its previous legal representatives.
[97]
The CRL’s position is that its
constitutional mandate is to promote respect and unity amongst all
communities in South Africa.
[81]
In this light, it supports the elimination of discrimination in all
religious marriages, including but not limited to Muslim marriages.

The CRL recognises the vulnerable position of Muslim women in society
and posits that gender equality trumps religious freedom
as religious
freedoms may not be exercised in a manner that is inconsistent with
any other rights in the Bill of Rights.
[82]
Further, it agrees that there is a duty on the State in terms of
section 7(2) in light of the rights violations and the international

obligations, to ensure that all religious marriages comply with the
values and rights in the Bill of Rights.
[98]
As for the remedy, the CRL does not support the
WLC’s main relief but does support the alternative relief of
reading into
the Recognition Act, with one caveat: the reading-in
should ensure the recognition and regulation of all religious
marriages.
[99]
Lastly, the CRL counters the argument that the
Recognition Act is based on customary law which is recognised in the
Constitution
and thus distinct from religious law. The CRL contends
that custom and religion overlap in many material respects as noted
in
Pillay
[83]
and there are many similarities between African
customary law and the practice of Islam. The Recognition Act however
differentiates
between such groups without any rational explanation
and which differentiation is unjustifiable in an open and democratic
society.
Amici’s Submissions
United
Ulama Council of South Africa
[100]
The United Ulama Council of South Africa (‘UUC’)
is a national religious body purportedly responsible for protecting

and safeguarding religious affairs of Muslims in South Africa and has
given input into and consented to the draft Muslim Marriages
Bill.
Although bearing the same name, this is a different grouping to the
Seventh Respondent.
[101]
The UUC supports the application brought by the
WLC. It agrees that there have been rights violations, especially the
right to dignity
and that the State has a duty in terms of section
7(2) to protect, promote, respect and fulfil these rights, which it
has failed
to do.
[102]
In counterargument to the Respondents, it alleges
that piecemeal litigation is undesirable as it may lead to
uncertainty and fragmented
jurisprudence which is contrary to the
rule of law. It contends that the issue of entanglement does not
arise as the Bill has already
been settled by mainstream Muslims.
Lastly, the UUC contends that separation of powers issues do not
arise as the Court is mandated
by the Constitution to make an order
to ensure effective relief, even when this may have policy
implications.
Law
Society of South Africa (‘LSSA’)
[103]
The LSSA submissions deal extensively with the
historical background and social structures of the Muslim community,
finding these
to be particular oppressive to women and that, given
the rights violations, there is a need for legislative recognition
and regulation.
The LSSA supports the arguments and relief sought by
the WLC. Lastly, the LSSA contends that neither the doctrine of
entanglement
nor the principle of the separation of powers prohibits
this Court from granting the relief sought.
SA
Lawyers 4 Change
[104]
The SA Lawyers 4 Change, a voluntary association
with a stated mission of the advancement of women’s rights,
supports the
argument and relief sought by the WLC. This
amicus
does not, in its heads, further the argument presented by the WLC.
Muslim
Assembly
[105]
The Muslim Assembly describes itself as an
“establishment” within the Muslim Community whose role is
to facilitate aspects
of the Muslim Community, including the issuing
of marriage and divorce certificates. The Muslim Assembly operates
under the auspices
of the Islamic Council of South Africa (‘ICSA’).
The Muslim Assembly provides marital counselling services in the
Western
Cape and basis its recommendations on the experiences it has
encountered by providing these services. The Muslim Assembly supports

the arguments and relief sought by the WLC.
[106]
It submits that recognition and regulation in the
form of legislation is necessary to protect women and children. It
details Islamic
divorce procedures and consequences, noting that it
has no powers of enforcement. Furthermore, the Muslim Assembly sets
out the
applicable provisions of the Children’s Act and
Divorce
Act which
ensure that the best interest of the child are of paramount
importance in civil divorces but which are not automatically applied

in Muslim divorces.  This can only be rectified by legislative
intervention. Lastly, the Muslim Assembly contends that women
may
suffer in polygamous marriages, where one marriage is in terms of
Islamic tenets and the other is civil. Where the civil marriage
ends
in divorce there is no protection afforded to the wife married in
terms of Islamic tenets. This too is a problem with the
Imam Project.
Islamic
Unity Convention
[107]
The Islamic Unity Convention (‘IUC’)
is a voluntary umbrella organisation consisting of 102 Muslim
organisations, with
an interest in the welfare of Muslim communities.
While the IUC acknowledges the hardships faced by Muslim women and
children and
commends the WLC for attempting to solve these issues,
it does not support the main relief sought. The IUC’s main
contention
is that enacting legislation will infringe the rights to
freedom of religion
(sections 15
and
31
) by forcing Muslims to choose
between civil law and the prescripts of Islamic law. These prescripts
cannot be codified and to do
so would result in the same problems
faced with the codification of customary law during apartheid. The
true mischief that has
been unearthed is the non-recognition of
Muslim Personal Law. The IUC briefly examines foreign jurisdictions’
approach to
this issue, alleging that India recognises Muslim
Personal Law and the United Kingdom has set up Muslim Arbitration
Tribunals,
which ensure that disputes are resolved according to
Sharia
law.
[108]
That being noted, the IUC nevertheless supports
the interim relief sought, which would alleviate some of the hardship
experienced
by Muslim women, pending the enactment of legislation
which recognises and allows for the enforcement of relevant Muslim
Personal
Law. Lastly, the IUC also support the submission by the
Commission on Gender Equality for the establishment of procedures in
the
Master’s Office for the dissolution of deceased estates
where it is alleged that the deceased was a spouse in a Muslim
marriage.
Commission
on Gender Equality
[109]
The Commission on Gender Equality (‘the
Gender Commission’) supports the WLC’s arguments and
relief, but only
partly and with modification. The Gender Commission
agrees that the State has failed to fulfil its
section 7(2)
duty,
towards Muslim women in particular. There is no obstacle to bringing
this form of a challenge as the principle of subsidiarity
does not
apply as there is no Act giving effect to these rights; the State has
shown its inability to fulfil this duty; and no
parallel system of
law will develop if this form of argument is allowed.
[84]
Further, this section 7(2) challenge is preferable to a frontal
challenge to existing legislation as the rights violations are

historic and systemic, the under-inclusiveness persists across a wide
range of laws and thus new legislation is preferable to effectively

address the issue. The failure and delay by the State to enact
legislation recognising Muslim marriage is unreasonable and clearly

ineffective.
[110]
As for the dissenting arguments, the Gender
Commission contends that recognising Muslim marriages (cf.
registering, regulating and
codifying) does not infringe religious
freedoms. Similarly, “dissent” amongst Muslims is not
sufficient reason to allow
the violation of rights to persist. As for
international duties, CEDAW does not prohibit polygamy and moreover
South Africa recognises
polygamy, albeit in customary marriages.
Lastly, the Imam project is insufficient to remedy the systemic
rights violations and
moreover does not permit polygamous marriages.
[111]
With regards to remedy, the Gender Commission
supports a declarator that the State has failed in terms of section
7(2) and directing
the executive to prepare and initiate legislation
recognising Muslim marriages. This much is well within the Court’s
constitutional
powers in terms of section 172. But the Gender
Commission does not support the ordering of Parliament to enact such
legislation.
This would not be constitutionally permissible, for many
reasons, including that the Members of Parliament must be allowed to
vote
in terms of their mandate and their conscience. Thus the Gender
Commission submits that the order should be limited to the
preparation
and initiation by the executive of this legislation,
which is to be considered by Parliament.
[112]
The Gender Commission contends that a timeframe
should be set within which the preparation and initiation of
legislation, and its
introduction and tabling in Parliament, should
be complete. This coupled with periodic progress reports to the
Court.
[113]
In the interim, the
Divorce Act should
be
declared to apply to Muslim marriages, specifically
section 7(3)
thereof, which provides for the transfer of assets from one spouse to
another. Standard operating procedures for how the Master
is to deal
with the dissolution of an estate where the deceased was allegedly a
spouse in a Muslim marriage, should be prepared
by the Department of
Justice and the Department of Home Affairs. Lastly, these interim
remedies should be widely publicised.
[114]
Should the Court be unwilling to grant the
primary relief in terms of section 7(2) of the Constitution, then the
Gender Commission
contends that the Marriage Act discriminates
against Muslim women, directly and indirectly, on listed grounds of
sex, marital status,
gender and religion and thus is presumed to be
unfair. The unfairness is further demonstrated by the impact this has
on a vulnerable
group and that it serves no legitimate government
purpose. Therefore, the Marriage Act is unconstitutional. Similarly,
the
Divorce Act, if
not read to include Muslim marriages, is
unconstitutional. And so is the common law definition of marriage
which does not permit
polygamy. These should be declared
unconstitutional.
[115]
However, contrary to the contentions of the WLC,
the Gender Commission submits that the Recognition Act is not
unfairly discriminatory
and thus not unconstitutional, as it complies
with the three-part test set out by the Constitutional Court in
Van
Heerden
:
[85]
the Act targets a historically disadvantaged group, seeks to protect
and advance that group, and promotes the achievement of equality.

Furthermore, this Act acknowledges the special status of customary
law afforded by the Constitution, which is not afforded to religious

law.
Jamiatul
Ulama KwaZulu Natal
[116]
The Jamiatul Ulama KZN (‘JU’) is a
body of Muslim theologians and Imams in KwaZulu Natal, which amongst
other things,
issues decrees concerning Islamic law. The JU opposes
the arguments and relief sought by the WLC, contending that the
Constitution
is incompatible with
Sharia
law, and detailing the divergent underpinnings of each. The JU
examines aspects of the Bill to show that it too is inconsistent
with
the Constitution, particularly the right to equality. However, on
grounds of the avoidance of doctrinal entanglement and deference
to
the other spheres of government, the executive and legislature should
be permitted to explore a whole range of options and not
be compelled
by the Court to initiate, prepare or enact legislation.
Evaluation
[117]
Perhaps
the most convenient place from where to start is to understand the
rights underpinning the applicants’ claim and whether
there is
any violation of those rights, and thereafter what obligations are
imposed on the State by the Constitution, if any, as
regards the
fulfilment, protection and promotion of those rights.
Equality
[118]
The
right to equality underlies the applicants’ case as the right
that continues to be violated. This right has been found
to be one
which “
permeates and defines the very ethos upon which the
Constitution is premised.
”
[86]
The Constitutional Court in
Van Heerden
[87]
emphasized the need for courts–
“
to
scrutinise in each equality claim the situation of the complainants
in society; their history and vulnerability; the history,
nature, and
purpose of discriminatory practise and whether it ameliorates or adds
to group disadvantages in real life context,
in order to determine
its fairness or otherwise in the light of the values of our
Constitution.  In the assessment of fairness
or otherwise a
flexible but ‘situation sensitive’ approach is
indispensable because of shifting patterns of hurtful
discrimination
and stereotypical response in our evolving society.
”
[119]
Since
the dawn of our constitutional democracy our jurisprudence is laden
with decisions underlying deep patterns of disadvantages
suffered by
women, particularly black women, which call for eradication; these
need not be repeated.  Women continue to occupy
a vulnerable
position in our society in relation to family structures.
[88]
[120]
Section 9(1) provides that “
[e]veryone
is equal before the law and has the right to equal protection and
benefit of the law
.” Section 9(3)
provides that “[
t
]
he
state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex,

pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language and birth
.” Equality lies at
the heart of the Constitution and is both an underlying value and a
justiciable right.
[121]
Discrimination may be direct or indirect.
The Constitutional Court set out a test to determine whether there
has been a violation
of the right to equality in the matter of
Harksen v Lane N.O and Others.
[89]
[122]
WLC contends that Muslim women are unfairly
discriminated against on the basis of religion, marital status,
gender and sex. It alleges
that the State’s omission to
recognise Muslim marriages or to amend legislation to regulate Muslim
marriages is in direct
conflict with section 9(3) of the Constitution
on grounds of religion and marital status and indirect discrimination
on the ground
of gender and sex.
[123]
The
debate should not be located on whether there is differential
treatment between Muslim women and women of other religions because

this analysis may lead to a skewed conclusion that if it is found
that women in other religions are in the same boat as women in
Muslim
marriages owing to the fact that no religious marriages are
recognised
per se
, no discrimination has been established and
hence no violation of rights. That view may be parochial as it may
lose the historical
context of systemic violation of the rights of
Muslim women. It can also not be suggested that just because no
recognition is afforded
to marriages concluded in terms of religion
per se
as contemplated in section 15(3), Muslim marriages are
not entitled to protection.   The better approach is that
which
was adopted by Nkabinde J in
Hassam
when she said
:
[90]
“
The
marriage between the applicant and the deceased, being polygynous,
does not enjoy the status of a marriage under the Marriage
Act. The
Act differentiates between widows married in terms of the Marriage
Act and those married in terms of Muslim rites; between
widows in
monogamous Muslim marriages and those in polygynous Muslim marriages;
and between widows in polygynous customary marriages
and those in
polygynous Muslim marriages. The Act works to the detriment of Muslim
women and not Muslim men.
”
[124]
In
this connection the WLC is correct and the Court has identified it to
be appropriate to compare women in Muslim marriages with
those in
civil and customary marriages and as well as to compare Muslim women
and Muslim men. Whilst marriage itself is not asserted
as a right
constitutionally, it has been given “
a seal of
constitutional significance
” by the Constitutional
Court.
[91]
[125]
Having
found that there was differentiation as outlined above, the Court in
Hassam
enquired whether that amounted to discrimination on any
of the listed ground and the answer was yes. It considered the
jurisprudence
of that Court which obliged the Court to analyse the
nature of the discrimination contextually. It took into account that
“
in the past, Muslim marriages, whether polygynous or not,
were deprived of legal recognition for reasons which do not withstand
constitutional scrutiny today.
”
[92]
These caused Muslim widows significant and material disadvantage of
the sort the equality provision seeks to avoid. The denial
of
benefits also affected Muslim women, particularly in polygynous
marriages, “
(because Muslim personal law does not permit
women to have more than one husband), the discrimination also has a
gendered aspect.
”
[93]
[126]
The Court therefore found that “
grounds
of discrimination can thus be understood to be overlapping on the
grounds of, religion, in the sense that the particular
religion
concerned was in the past not one deemed to be worthy of respect;
marital status, because polygynous Muslim marriages
are not afforded
the protection other marriages receive; and gender, in the sense that
it is only the wives in polygynous Muslim
marriage that are affected
by the Act’s exclusion
.”
[94]
[127]
The Court hastened to emphasise that its
conclusion did not mean that “
the rules
of Muslim personal law, if enacted into law in terms of section 15(3)
of the Constitution, would necessarily constitute
discrimination on
the grounds of religion, for the Constitution itself accepts
diversity and recognises that to foster diversity,
express provisions
for difference may at times be necessary. Nor does this conclusion
foreshadow any answer on the question as
to whether polygynous
marriages are themselves consistent with the Constitution. Whatever
the answer to that question may be, one
we leave strictly open now,
it could not result in refusing appropriate protection to those women
who are parties to such marriages.
Such a result would be to lose
sight of a key message of our Constitution: each person is of equal
worth and must be treated accordingly
.”
[95]
[128]
The
reasoning in
Hassam
is still applicable in South Africa today.
Whilst the disadvantageous position of Muslim women, particularly
those in monogamous
marriages, has been ameliorated in many respects,
there is still a gap with regards to non-recognition that affects
women, not
only in polygynous marriages.
[129]
The
defence that Muslim women can choose to register their marriages in
terms of the Marriage Act has been found not to be an adequate
answer
in many judgments, including
Daniels.
[96]
Furthermore, spouses in existing or prospective polygynous Muslim
marriages are excluded from entering into civil marriages and
are
denied the legal benefits and protection attached to these marriages.
[130]
The
choice argument may also ignore disparities in bargaining power
between men and women in marriages. In
Volks N.O.,
[97]
Sachs J (albeit in a minority judgment), held that “
while it
is necessary to emphasise the importance of people taking
responsibility for their lives, and to acknowledge the extraordinary

self-reliance shown by many women in the face of extreme hardship,
the law cannot ignore the fact that lack of resources has left
many
women with harsh options only
.”
[131]
It
cannot entirely be concluded that in all respects the majority of
women in Muslim marriages have freely chosen to avoid protections

offered in civil marriages.  Before the Imam Project came about,
there were few Imams who were registered as marriage officers.
Also,
some women may not be aware that their marriages do not carry any
legal protection, and even those who do realise the need
for a civil
marriage may lack the bargain of power to convince their husbands to
register civilly.
[132]
Furthermore,
choice cannot have a bearing on the question of breach.  The
existence of a choice has not prevented the Constitutional
Court in
finding that the State had acted unconstitutionally in various
statutes excluding spouses in Muslim marriages despite
the choice
they had to register.
[98]
[133]
In
addition to that, the fact that a woman elected a Muslim marriage has
no bearing on whether she will experience social economic

disadvantage.  Breaches of constitutional rights may arise
despite these choices.  In
Van der Merwe v Road Accident Fund
(Women’s Legal Centre as Amicus Curiae),
[99]
the Constitutional Court held the following:
“
This line
of reasoning falters on two grounds. First, the constitutional
validity or otherwise of legislation does not derive from
the
personal choice, preference, subjective consideration or other
conduct of the person affected by the law. The objective validity
of
a law stems from the Constitution itself, which in section 2,
proclaims that the Constitution is the supreme law and that law

inconsistent with it is invalid. Several other provisions of the
Constitution buttress this foundational injunction in a democratic

constitutional state. A few should suffice. Section 8(1) affirms that
the Bill of Rights applies to all law and binds all organs
of state
including the judiciary. Section 39(2) obliges courts to interpret
legislation in a manner that promotes the spirit, purport
and objects
of the Bill of Rights. And importantly, section 172(1) makes plain
that when deciding a constitutional matter within
its power, a court
must declare that any law that is inconsistent with the Constitution
is invalid to the extent of its inconsistency.
Thus the
constitutional obligation of a competent court to test the objective
consistency or otherwise of a law against the Constitution
does not
depend on and cannot be frustrated by the conduct of litigants or
holders of the rights in issue. Consequently, the submission
that a
waiver would, in the context of this case, confer validity to a law
that otherwise lacks a legitimate purpose, has no merit.
”
[134]
Equally,
in the present circumstances, the assessment of the constitutional
obligation cannot be negated by the women’s choice
not to
register their marriages. The applicants have, therefore, been able
to show discrimination.
[135]
Because
the discrimination is on the listed ground, it is presumed to be
unfair in terms of section 9(5). The State respondents
have not
sought to suggest that any legitimate governmental purpose is served
by this unfair discrimination.  It is doubtful
that they can.
Dignity
[136]
Lack
of recognition of Muslim marriages has been held to infringe upon the
dignity of a Muslim woman, the most recent decision being
Moosa
N.O.
[100]
The Constitutional Court there, dealing with an applicant’s
right to be treated as a “surviving spouse”
for the
purpose of the
Wills Act, found
that the—
“
concomitant
denial of her right to inherit from her deceased husband’s
will, strikes at the very heart of her marriage of
fifty years, her
position in her family and her standing in her community. It tells
her that her marriage was, and is, not worthy
of legal protection.
Its effect is to stigmatise her marriage, diminish her self-worth and
increase her feeling of vulnerability
as a Muslim woman.
Furthermore,
as the WLC correctly submitted, this vulnerability is compounded
because there is currently no legislation that recognises
Muslim
marriages or regulates their consequences.
In short, the non-recognition of the third applicant’s right to
be treated as a ‘surviving spouse’ infringes
her right to
dignity in a most fundamental way, and is a further ground for
declaring
section 2C(1)
constitutionally invalid.”
[101]
Access to court on
dissolution of marriage and children’s rights
[137]
Whilst
there has been intervention through a number of judgments,
vulnerability of women in Muslim marriages on dissolution of their

marriage is still an area where very limited, if any, legal
protection is afforded. The facts in the
Faro
case demonstrate
this vulnerability quite powerfully. A husband has the power to
obtain unilateral divorce through the
Talãq.
The result
is that a woman in that situation has no adequate safeguards to
obtain relief consequent to a divorce in a court, including
division
of marital property; she relies on religious bodies to grant orders
which are not legally enforceable.
[138]
Guardianship, maintenance, custody of, and access to children
after divorce are important aspects. The argument regarding remedies

available in civil and customary marriages, including benefits that
come with Mediation in Certain Divorce Matters Act 24 of 1987
and the
“automatic” oversight role of the Court in this regard is
compelling. These remedies are important enough to
have been afforded
to civil and customary marriages. Whilst there is regulation in some
instances, it seems to be inadequate. Muslim
women are not able to
access the system for purposes of dissolving their marriages and
regulating consequences thereof. The WLC
alleges that it is regularly
approached by women who experience hardships and are left with no
remedies. Vulnerabilities still
exist, despite the protections that
have been availed by the courts by extending consequences of
different statutes to spouses
in Muslim marriages.
[139]
Pegged
with the section 34 rights is section 28(2) which states that the
child’s best interests are of paramount importance
in every
matter concerning a child. Children in Muslim marriages are therefore
not provided with adequate protection as those in
civil and customary
marriages enjoy, upon dissolution of the marriage of their parents by
way of divorce. In terms of
section 6
of the
Divorce Act, a
decree of
divorce shall not be granted until the court is satisfied as to the
welfare of the minor or dependent children and it
may call for an
investigation to be undertaken and for any relevant person to appear
before it.
[140]
This
all serves to indicate that there has been, and is, an ongoing
infringement of the
section 34
rights of persons in Muslim marriages,
as well as the children thereof whose rights are stated in section 28
of the Constitution,
to have any dispute that can be resolved by the
application of law decided in a fair public hearing.
Has
the State failed to fulfil its obligations?
[141]
The
State respondents submit that by the enactment of marriage
legislation, PEPUDA, the Children’s Act and other legislation,

the State has given effect to its section 7(2) obligations. However,
the various pieces of legislation were not designed to address
the
discrimination against Muslim women and children. If that were the
case, there would not have been a need for courts to intervene
over a
period of time. The principle of subsidiarity as regards PEPUDA,
being the available subsidiary legislation, does not apply
either.
Whilst PEPUDA is legislation enacted to prevent or prohibit unfair
discrimination, it does not deal with other rights that
the
applicants rely on coupled with the section 7(2) obligations read
with section 237 upon which their case is founded.
Subsidiarity
does not apply when the enabling legislation, in this case PEPUDA,
does not adequately cover the constitutional rights
in need of
protection.
[142]
Whilst
the courts have helped to remediate the situation through piecemeal
litigation, there remains a gap, namely divorces. It
is correct that
nothing prevents a Muslim woman from approaching courts for a remedy;
some relief may not be competent for the
courts to grant without an
empowering basis to do so.
[143]
There is evidently a systemic violation of rights
to equality, human dignity, access to courts, and children’s
rights that
has been shown over the years. Corrosion of rights
triggers duties imposed upon the State under section 7(2).
[102]
The question is whether the State has an obligation to intervene
beyond the piece-meal litigation that has been adopted by the
courts
over a period of time. If so, what kind of intervention should that
be?
[144]
According
to the applicants, given the problems highlighted by different courts
in various judgments over a period of time, the
reasons for those
decisions and the complexities of Islamic law, cultural and religious
practices, the most reasonable and effective
way of ensuring the
obligations that the State has are fulfilled is to grant relief that
would ensure that Muslim marriages are
recognised for all purposes.
Section 7(2) obligations
[145]
According
to the applicants, the obligation for the State to recognise Muslim
marriages and their consequences flows directly from
the Bill of
Rights. In this regard, they rely on section 7(2) of the Constitution
which provides that “
the state
must respect, protect,
promote and fulfil the rights in the Bill of Rights”
and
section 237 which requires all constitutional obligations to be
performed diligently and without delay.
[146]
In
Glenister,
the
Constitutional Court confirmed that:
“
Our Constitution
appropriates the obligation for itself, and draws it deeply into its
heart, by requiring the state to fulfil it
in the domestic sphere. In
understanding how it does so, the starting point is section 7(2),
which requires the state to respect,
protect, promote and fulfil the
rights in the Bill of Rights. This Court has held that in some
circumstances this provision imposes
a positive obligation on the
state and its organs ‘to provide appropriate protection to
everyone through laws and structures
designed to afford such
protection.’ Implicit in section 7(2) is the requirement that
the steps the state takes to respect,
protect, promote and fulfil
constitutional rights must be reasonable and effective
.
”
[103]
[147]
It is clear from what is stated above that
section 7(2) imposes an obligation on the State, which obligation may
in some circumstances
be a positive one, and may require protection
through laws and structures, and whatever steps are taken must be
reasonable and
effective.
[148]
In
Minister of Safety and Security
v Van Duivenboden,
[104]
it was held that:
“
[t]he
state is obliged by the terms of s 7 of the
1996 Constitution not only to respect but also to ‘protect,
promote and fulfill
the rights in the Bill of Rights’ and s 2
demands that the obligations imposed by the Constitution must be
fulfilled. As
pointed out in Carmichele, our Constitution points in
the opposite direction to the due process clause of the United States
Constitution,
which
was held …
not to impose affirmative duties upon the state. While private
citizens might be entitled to remain passive when
the constitutional
rights of other citizens are under threat, and while there might be
no similar constitutional imperatives in
other jurisdictions, in this
country the state has a positive constitutional duty to act in the
protection of the rights in the
Bill of Rights.”
[149]
There are a number of ways that the State can
adopt to respect, protect, promote and fulfil the rights in the Bill
of Rights:
“
The
Constitution leaves the choice of the means to the state. How this
obligation is fulfilled and the rate at which it must be
fulfilled
must necessarily depend upon the nature of the right involved, the
availability of government resources and whether there
are other
provisions of the Constitution that spell out how the right in
question must be protected or given effect. Thus, in relation
to
social and economic rights, in particular those in sections 26 and
27, the obligation of the state is to ‘take reasonable

legislative and other measures, within its available resources, to
achieve the progressive realisation of these rights’
.”
[105]
What
kind of State intervention is required, if any?
[150]
It goes without saying that the Court ought to
show due deference to the other arms of the government as to how
measures falling
within their spheres are to be fulfilled with due
regard to the doctrine of separation of powers. “
The
court should take care not to usurp the functions of administrative
agencies. Its task is to ensure that the decisions taken
by
administrative agencies fall within the bounds of reasonableness as
required by the Constitution.
”
[106]
[151]
The State respondents deny that section 7(2)
imposes the duty to enact legislation. According to them, the
executive is vested with
a discretion and not an obligation to
prepare and initiate legislation. So is the legislature conferred
with legislative powers
and not obligations.
Is the State obliged to
enact legislation?
[152]
Section 7(2) does not define steps the State
should take in affording the protection, promotion and fulfilment of
rights in section
7(2). This is unlike certain provisions which have
been highlighted by the State respondents where there is an express
obligation
imposed upon the State to introduce legislation. What is
implied, however, in section 7(2) is that the steps taken must be
reasonable
and effective. Clearly an obligation is imposed on the
State to give effect to the rights contained in Chapter 2 of the
Constitution.
[153]
The
applicants argue that it is permissible and preferable to decide this
case based on the State’s breach of its positive
duties rather
than the frontal challenge to the various marriage statutes. This
approach is supported by the Gender Commission,
the Human Rights
Commission (with certain additional orders) and various
amici
.
[154]
The
Gender Commission takes this point further by submitting that the
lack of protection for women in Muslim marriages cannot be
traced to
a particular statute. It stems from a historical pattern of unfair
discrimination against the Muslim community which
resulted in their
interests being ignored by the law.
[155]
Furthermore,
any attack on the under-inclusiveness of the existing law would need
to encompass a host of provisions across a range
of laws and such a
task would distract from the primary constitutional breach, which is
the State’s failure to take reasonable
and effective steps to
protect Muslim women in law. The undesirability of piecemeal relief
was highlighted in a number of judgments
including,
Bhe
and
Others v Khayelitsha Magistrate and Others,
where the Court held
“
[t]he problem with development by the courts on a case by
case basis is that changes will be very slow; uncertainties regarding
the real rules of customary law will be prolonged and there may well
be different solutions to similar problems
”
.
[107]
[156]
The
applicants contend that there has been inaction by the State
respondents which has resulted in ongoing violations. This can
never
be reasonable if one has regard to the delays.
[157]
In interpreting what obligations are imposed by
section 7(2) and whether this section necessarily appropriates the
obligations contended
for by the applicants, i.e. to enact statute,
the Court must draw from section 39 of the Constitution which deals
with how the
Bill of Rights should be interpreted. Key to this
section is that when interpreting the Bill of Rights the Court “
(a)
must promote the values that underlie an open and democratic society
based on human dignity, equality and freedom; (b) must
consider
international law; and (c) may consider foreign law
.”
[108]
[158]
The applicants have referred to the international
agreements which South Africa has committed itself to. There seemed
to be some
concession from the applicants that those agreements have
not been domesticated and therefore are not law in South Africa.
Section
231 which deals with  ‘
International
agreements
’ provides
:
“
(1)
The negotiating and signing of all international agreements is the
responsibility of the national executive.
(2)
An international agreement binds the Republic only after it has been
approved by resolution
in both the National Assembly and the National
Council of Provinces, unless it is an agreement referred to in
subsection (3).
(3)
An international agreement of a technical, administrative or
executive nature, or an agreement
which does not require either
ratification or accession, entered into by the national executive,
binds the Republic without approval
by the National Assembly and the
National Council of Provinces, but must be tabled in the Assembly and
the Council within a reasonable
time.
(4)
Any international agreement becomes law in the Republic when it is
enacted into law by
national legislation; but a self-executing
provision of an agreement that has been approved by Parliament is law
in the Republic
unless it is inconsistent with the Constitution or an
Act of Parliament.
(5)
The Republic is bound by international agreements which were binding
on the Republic when
this Constitution took effect
.”
[159]
Section 232 provides that “
Customary
international law is law in the Republic unless it is inconsistent
with the Constitution or an Act of Parliament.”
Lastly,
section 233 deals with the application of international law and
provides that:
“
When interpreting any legislation, every court must prefer
any reasonable interpretation of the legislation that is consistent
with
international law over any alternative interpretation that is
inconsistent with international law.
”
[160]
In
National Commissioner
of the South African Police Service v Southern African Human Rights
Litigation Centre and Another,
[109]
Majiedt AJ having examined the relevant constitutional provisions,
summed up the place of international law in the Constitution
as
follows:
“
The
Constitution provides that: (a) customary international law is part
of our domestic law insofar as it is not inconsistent with
the
Constitution or an Act of Parliament; (b) international treaty law
only becomes law in the Republic once enacted into domestic

legislation; and (c) national legislation should, in turn, be
interpreted in the light of international law that has not been
domesticated into South African law by national legislation but
that is nonetheless binding upon it.”
[161]
The nature of international agreements was also
examined in
Glenister
by Ngcobo J as follows:
[110]
“
An international agreement that has been ratified by
resolution of Parliament is binding on South Africa on the
international plane.
And failure to observe the provisions of
this agreement may result in South Africa incurring responsibility
towards other signatory
states.  An international agreement that
has been ratified by Parliament under section 231(2), however, does
not become part
of our law until and unless it is incorporated into
our law by national legislation. An international agreement that has
not been
incorporated in our law cannot be a source of rights and
obligations.
”
[162]
In
Glenister
,
the Court was called upon to determine, amongst other issues, whether
the State had fulfilled its duty under section 7(2) to protect,

respect, promote and fulfil the rights in the Bill of Rights, in the
context of fighting corruption. It was held that corruption

undermines the rights in the Bill of Rights and must be combated. An
anti-corruption unit had been established under the National

Prosecuting Authority (NPA). An Act of Parliament moved this unit
from the NPA to under the auspices of the South African Police

Services. As mentioned above, the majority of the Court held that
“
[i]mplicit in section 7(2) is the
requirement that the steps the state takes to respect, protect,
promote and fulfil constitutional
rights must be reasonable and
effective.
”
[111]
[163]
Certain international agreements, which had been
ratified but not domesticated, called on the party states to
establish anti-corruption
units that had the necessary independence
to function effectively. The majority noted that undomesticated
international agreements
do not create binding rights and obligations
within South Africa. But section 39(1)(b) placed an interpretive
injunction on the
courts to take such agreements into account when
interpreting any rights in the Bill of Rights. This was bolstered by
section 233
which enjoins courts to prefer any reasonable
interpretation of the legislation that is consistent with
international law. The
majority stated that:
“
It is possible to determine the content of the obligation s
7(2) imposes on the State without taking international law into
account.
But s 39(1)(b) makes it constitutionally obligatory that we
should. This is not to use the interpretive injunction of that
provision,
as the main judgment suggests, to manufacture or create
constitutional obligations. It is to respect the careful way in which
the
Constitution itself creates concordance and unity between the
Republic's external obligations under international law, and their

domestic legal impact
.”
[112]
[164]
The majority went on to find that the
Constitution, interpreted in accordance with South Africa’s
international obligations,
requires independence as a necessary
condition of a reasonable anti-corruption unit. The majority was
careful to emphasise that
“
[t]his is not
to incorporate international agreements into our Constitution. It is
to be faithful to the Constitution itself, and
to give meaning to the
ambit of the duties it creates in accordance with its own clear
interpretive injunctions”.
[113]
[165]
Thus in sum, international agreements are
external and create binding obligations between party States. Only
those international
agreements which have been domesticated, by
enacting legislation under section 231(4) of the Constitution, have
the force of law
within South Africa. International agreements which
have been ratified but not domesticated play an interpretive role in
South
African courts: section 39(1) enjoins a court to apply
international law when interpreting rights in the Bill of Rights and
section
233 provides that courts should prefer any reasonable
interpretation of domestic legislation that is consistent with
international
law. As held by the majority in
Glenister
,
the Constitution calls for concordance between the rights and
obligations it enshrines and those rights and obligations that South

Africa has bound itself to by international agreement.
[166]
The four international agreements, CEDAW, ICCPR,
Women’s Protocol and the SADC Protocol, have been duly signed,
approved by
the South African Parliament and ratified
[114]
and are therefore binding as a matter of international law (as was
held in
Glenister
).
None of the agreements, however, have been transposed into domestic
law through an enactment under section 231.
[167]
Article 16(1) of CEDAW requires State parties to
“
take all reasonable measures to
eliminate discrimination against women in all matters relating to
marriage and family relations
and in
particular shall ensure, on a basis of equality of men and women:
(a)
The same right to enter into marriage;
(b)
The same right freely to choose a spouse and to enter into marriage
only with their
free and full consent;
(c)
The same rights and responsibilities during marriage and at its
dissolution;
(d)
The same rights and responsibilities as parents, irrespective of
their marital status,
in matters relating to their children; in all
cases the interests of the children shall be paramount;
(e)
The same rights to decide freely and responsibly on the number and
spacing of their
children and to have access to the information,
education and means to enable them to exercise these rights;
(f)
The same rights and responsibilities with regard to guardianship,
wardship,
trusteeship and adoption of children, or similar
institutions where these concepts exist in national legislation; in
all cases
the interests of the children shall be paramount;
(g)
The same personal rights as husband and wife, including the right to
choose a family
name, a profession and an occupation;
(h)
The same rights for both spouses in respect of the ownership,
acquisition, management,
administration, enjoyment and disposition of
property, whether free of charge or for a valuable
consideration
.
”
[115]
[168]
Article 23(4) of the ICCPR provides that:
“
State
Parties to the present Covenant shall take appropriate steps to
ensure equality of rights and responsibilities of spouses
as to
marriage and its dissolution. In the case of dissolution, provision
shall be made for the necessary protection of children.
”
[116]
[169]
Article 6 of the Women Protocol states as
follows:
“
States
Parties shall ensure that women and men enjoy equal rights and are
regarded as equal partners in marriage. They shall enact
appropriate
national legislative measures to guarantee that
:
(a)
no marriage shall take place
without the free and full consent of both parties;
(b)
the minimum age of marriage for
women shall be 18 years;
(c)
monogamy is encouraged as the
preferred form of marriage and that the rights of women in marriage
and family, including in polygamous
marital relationships are
promoted and protected;
(d)
every marriage shall be recorded
in writing and registered in accordance with national laws, in order
to be legally recognised;
(e)
the husband and wife shall, by
mutual agreement, choose their matrimonial regime and place of
residence;
(f)
a married woman shall have the
right to retain her maiden name, to use it as she pleases, jointly or
separately with her husband's
surname;
(g)
a woman shall have the right to
retain her nationality or to acquire the nationality of her husband;
(h)
a woman and a man shall have
equal rights, with respect to the nationality of their children
except where this is contrary to a
provision in national legislation
or is contrary to national security interests;
(i)
a woman and a man shall jointly
contribute to safeguarding the interests of the family, protecting
and educating their children;
(j)
during her marriage, a woman
shall have the right to acquire her own property and to administer
and manage it freely.
”
[170]
South Africa recorded its reservations that it
did not consider itself bound by Articles 6(d) an
d
6(h).
[117]
Article 7 provides that:
“
States
Parties shall enact appropriate legislation to ensure that women and
men enjoy the same rights in case of separation, divorce
or annulment
of marriage. In this regard, they shall ensure that:
(a)
separation, divorce or annulment of a marriage shall be
effected by judicial order;
(b)
women and men shall have the same rights to seek separation,
divorce or annulment of a marriage;
(c)
in case of separation, divorce or annulment of marriage, women
and men shall have reciprocal rights and responsibilities towards

their children. In any case, the interests of the children shall be
given paramount importance;
(d)
in case of separation, divorce or annulment of marriage, women
and men shall have the right to an equitable sharing of the joint

property deriving from the marriage
.”
[171]
In terms of Article 8(a):
“
Women and
men are equal before the law and shall have the right to equal
protection and benefit of the law. States Parties shall
take all
appropriate measures to ensure:
(a)
effective access by women to judicial and legal services,
including legal aid;”
[172]
Finally, Articles  8 (1) , (2) and (3) of
the SADC Protocol provide:
“
1.
State Parties shall enact and adopt appropriate legislative,
administrative and other measures
to ensure that women and men enjoy
equal rights in marriage and are regarded as equal partners in
marriage.
2.
Legislation on marriage shall ensure that:
(a)
no person under the age of 18 shall marry unless otherwise specified
by law which
takes into account the best interests and welfare of the
child;
(b)
every marriage takes place with the free and full consent of both
parties;
(c)
every marriage, including civil, religious, traditional or customary,
is registered
in accordance with national laws; and
(d)
during the subsistence of their marriage the parties shall have
reciprocal rights
and duties towards their children with the best
interests of the children always being paramount.
3.
States Parties shall enact and adopt appropriate legislative and
other measures
to ensure that where spouses separate, divorce or have
their marriage annulled:
(a)
they shall have reciprocal rights and duties towards their children
with the best
interest of the children always being paramount; and
(b)
they shall, subject to the choice of any marriage regime or marriage
contract, have
equitable share of property acquired during their
relationship
.”
[173]
Therefore, South Africa has committed itself to
take appropriate and reasonable measures to eradicate discrimination
against women
in marriage and family relations.  Some of these
conventions require enactment of legislation by member States to give
effect
to equality rights of women and children. Even though the
provisions of the international agreements have not been transported
into South African law, South Africa has undertaken when it ratified
these agreements and protocols to take reasonable and appropriate

steps to eradicate discrimination against women and children in
marital relationships. In both the Women’s Protocol and the

SADC Protocol, State parties, of which South Africa is one, agreed to
enact and adopt appropriate legislation. South Africa therefore
has
obligations that became binding on it in the international sphere. As
the Court stated in
Glenister
,
this is not to incorporate international agreements into our
Constitution, but it is “
to be faithful
to the Constitution itself, and to give meaning to the ambit of the
duties it creates in accordance with its own
clear interpretive
injunctions
.”
[118]
[174]
The obligation to consider international law when
interpreting the Bill of Rights was considered in a number of
decisions following
Glenister.
In
Singh
[119]
for instance, the Equality Court examined the employment policy of
magistrates in the context of persons with disabilities. It
found
that section 9(2) of the Constitution and section 4(2)(a) of PEPUDA
placed a complementary duty on the state to take active
measures to
promote the equality of people with disabilities.
[120]
To this, the Court noted the interpretive injunction of section 39(1)
as expressed in
Glenister
(at paras 201-2), and considered international law, which reinforced
the finding that the state has a duty to promote the employment
of
people with disabilities.
[121]
[175]
In
Fick,
[122]
the Constitutional Court considered whether, in terms of
the common law, South African courts have the jurisdiction to
register
and thus facilitate the enforcement of a costs order made
against Zimbabwe by the Tribunal created in terms of the Treaty of
the
South African Development Community, which South Africa had
ratified. Article 32 of the Tribunal Protocol, an offshoot of the
Treaty,
called upon member parties to ‘ensure execution of
decisions of the Tribunal’. The Court reasoned that the
development
of the common law was necessary in light of sections 34,
8 and 39 and that such development is
“
to
be informed by international law, as set out in the Amended Treaty,
which obliges South Africa to facilitate the enforcement
of decisions
of the Tribunal.
”
[123]
The Court went on to hold that:
“
Analogous
to the reasoning in Glenister, based on partial reliance on the
SADC Protocol on Corruption which flows from the
Treaty, South
Africa's obligation to develop the common law as a measure necessary
to  execute the Tribunal's decision—
‘
is a duty
this country itself undertook when it acceded to these international
agreements. And it is an obligation that became binding
on the
Republic, in the international sphere, when the National Assembly
and the NCOP by resolution adopted them
.’”
[124]
[176]
In
My Vote Counts
NPC
,
[125]
the High Court considered whether political parties had a duty to
disclose private funding, in light of section 32 and 19 of the

Constitution. It was further argued that the constitutional
requirement for disclosure of private funding information is
reinforced
by sections 7(2) and 1(d) of the Constitution, as well as
a number of international agreements which have been ratified by
South
Africa. The Court examined each of the sections of the
Constitution as well as the ratified international agreements, which
instructed
each State party to incorporate the principle of
transparency into the funding of political parties and went on to
hold:
“
In
view of all of the above
I accept that s 32(1), read with
s 19 of the Constitution, and also ss 7(2) and 1(d) thereof,
requires disclosure of information
on political parties' private
funding for the exercise and protection of the right to vote.
”
[126]
[177]
Although not expressly mentioned in this
concluding paragraph, it would appear that the Court embraced the
interpretive injunction
of section 39 and considered international
agreements, which had been ratified, when interpreting rights in the
Bill of Rights,
to find that the principle of transparency required
disclosure of private funding of political parties.
[178]
Thus, as the State is under a section 7(2) duty
“
to respect, protect, promote and fulfil
the rights in the Bill of Rights
”, this
duty may be invoked where there is an alleged violation of rights in
the Bill of Rights by the State. This in turn
may trigger the courts’
powers to determine whether the State has fulfilled its obligations
under section 7(2). How the State
fulfils the duty is within its own
power to determine. However, what steps it takes must be ‘reasonable
and effective’.
The question of what is reasonable and
effective might be answered in part by examining the nature of the
rights violations and
in part by international law, which courts are
enjoined to consider when interpreting the Bill of Rights.
[179]
Continued non-recognition of marriages solemnised
according to Islamic tenets infringes on the rights to equality and
dignity. As
has already  been found, the right to have any
dispute that can be resolved by the application of law decided in a
fair public
hearing before a court, as well as a child’s right
to have their interest treated as of paramount importance in every
matter
concerning the child, are also infringed by non-recognition.
[180]
As seen through the cases, the non-recognition of
Muslim marriages is historic, persistent and unfulfilled since the
beginning of
democracy. This 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. Marriage
concerns a plethora of issues, from status to property, involving a
wide
range of laws, which are complex and fundamentally important.
[181]
While the State has the authority to determine
how it fulfils its section 7(2) duty, this must necessarily be in
line with the Constitution.
In this instance, given the nature of the
rights violations, in the context of the complexity and importance of
marriage, the only
reasonable means of fulfilling the section 7(2)
duty is through the enactment of legislation.
[182]
This interpretation of section 7(2) is aligned
with the international obligations that South Africa has taken on.
That is to say,
as was held in
Glenister
,
the conclusion that in the specific context of this matter the only
reasonable means of fulfilling the section 7(2) duty is through
the
enactment of legislation, may be found without resort to South
Africa’s international obligations. But to do so would
be to
disregard section 39(1). Moreover, these international obligations
whilst not creating binding and enforceable rights within
South
Africa, lend much interpretive weight to what is reasonable under
section 7(2). As the Court in
Glenister
held:
“
That the
Republic is bound under international law to create an
anti-corruption unit with appropriate independence is of the foremost

interpretive significance in determining whether the State has
fulfilled its duty to respect, protect, promote and fulfil the rights

in the Bill of Rights, as s 7(2) requires. Section 7(2) implicitly
demands that the steps the State takes must be reasonable. To
create
an anti-corruption unit that is not adequately independent would not
constitute a reasonable step. In reaching this conclusion,
the fact
that s 231(2) provides that an international agreement that
Parliament ratifies 'binds the Republic' is of prime significance.
It
makes it unreasonable for the State, in fulfilling its obligations
under s 7(2), to create an anti-corruption entity that lacks

sufficient independence
.
”
[127]
[183]
In analogous reasoning, it is of foremost
interpretive significance that South Africa is bound under
international law to enact
legislation to give effect to a plethora
of rights in the context of marriage. It would be unreasonable for
South Africa not to
enact legislation, when faced with systemic
rights violations which can only be cured by legislation, and whilst
bound by international
agreements to enact legislation.
[184]
The permissive nature of section 15(3) of the
Constitution insofar as it allows for the introduction of legislation
that recognises
marriages concluded under a system of religious or
personal and family law does not forbid such a conclusion. The
reasoning adopted
does not trench upon powers conferred on other arms
of the State in this regard. What it postulates is that absence of
legislation
to protect the rights of women and children in Muslim
marriages amounts to a breach of a constitutional duty by the
relevant arms
of the State. Case-by-case and incremental development
of the law is not entirely effective for reasons already canvassed.
Comprehensive
legislation is required because it would provide
effective protection of marriages concluded in terms of the tenets of
Islamic
law, whilst giving expression to Muslim persons’ rights
to freedom of religion.
[185]
This approach takes care of the concerns raised
by the respondents and some of the
amici
that incorporating Muslim marriages into common law or within the
marriage legislation would effectively amount to contamination
of a
religious marriage with a secular system. By doing so, it was argued
that the Court would be disregarding the choice Muslims
have to
practise and get married in terms of their own religious tenets. It
would be subjugating Islamic law or marriages concluded
in terms of
Sharia
law to the
provisions of common law and various applicable matrimonial
legislation which are profoundly at odds with each other.
This
approach recognises that whilst courts have the power to develop
common law incrementally, it is the legislature that is tasked
with a
major responsibility for law reform.
[128]
This is the kind of case where the Court should defer to Parliament
to develop or introduce a law in accordance with a particular
policy.
Thus, it remains open to Parliament to alter the common law through
legislative reform or introduce legislation which would
recognise
marriages concluded under a system of religious or personal and
family law as contemplated in section 15(3) of the Constitution.
[186]
A
number of decisions, whilst not pronouncing on the issue
per
se
, have in fact foreshadowed that
legislation is best suited to deal with the consequences of
recognition of Muslim marriages for
all purposes.
[129]
In
Daniels
, Moseneke J
said thus:
“
I
am acutely alive to the scorn and palpable injustice the Muslim
community has had to endure in the past on account of the legal

non-recognition of marriages celebrated in accordance with Islamic
law.  The tenets of our Constitution promises religious

voluntarism, diversity and independence within the context of the
supremacy of the Constitution. The legislature has still not

redressed, as foreshadowed by the Constitution, issues of inequality
in relation to Islamic marriages and succession.  The
report of
the Commission suggests that there is considerable divergence of
views on the envisaged legislation within the Muslim
community.
A
matter so complex and replete with contending policy, personal law
and pluralistic considerations is better suited for legislative

rather than judicial intervention.  Thus, in my view, a precise
and tailored ‘reading-in’ remedy, pending appropriate
and
timeous legislative intervention, is more appropriate than a
re-interpretation of the challenged statutes
.
”
[130]
[187]
In
Moosa N.O.
,
Cachalia AJ noted that the vulnerability of Muslim women “
is
compounded because there is currently no legislation that recognises
Muslim marriages or regulates their consequences
.”
[131]
[188]
The steps taken by the executive respondents by
introducing the Bill or contemplating an omnibus Bill seem to be an
acknowledgement
that legislation is the most reasonable and effective
way of protecting the rights implicated. This remedy does not dictate
to
the other arms what options to take. The Court is not involved in
what form the legislation should take. Whether or not the relevant

parties decide to vary or revive the Bill that has been in discussion
for many years, introduce new legislation, vary current marriage

legislation, or adopt omnibus legislation remains a choice for the
executive and the legislature.
Remedy
[189]
In terms of section 38, which provides for legal
standing in matters concerning rights violations, “
the
court may grant appropriate relief, including a declaration of
rights
.”
[190]
In
Fose v
Minister of Safety and Security
,
[132]
decided under the Interim Constitution, Ackermann J held:
“
Given the historical context in which the interim
Constitution was adopted and the extensive violation of fundamental
rights which
had preceded it, I have no doubt that this Court has a
particular duty to ensure that, within the bounds of the
Constitution, effective
relief be granted for the infringement of any
of the rights entrenched in it.
In our
context an appropriate remedy must mean an effective remedy,
for without effective remedies for breach, the values
underlying and
the rights entrenched in the Constitution cannot properly be upheld
or enhanced. Particularly in a country where
so few have the means to
enforce their rights through the courts, it is essential that on
those occasions when the legal process
does establish that an
infringement of an entrenched right has occurred, it be effectively
vindicated. The courts have a particular
responsibility in this
regard and are obliged to ‘forge new tools’ and shape
innovative remedies, if needs be, to achieve
this goal.”
[191]
This was quoted with approval and was held to
apply equally to an understanding of “appropriate relief”
under section
38 of the Final Constitution in
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs and
Others
.
[133]
[192]
Section 38 must be read with section 172(1) of
the Constitution which provides for the powers of courts in
constitutional matters
as follows:
“
When
deciding a constitutional matter within its power, a court-
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid
to the extent of its inconsistency; and
(b)
may make any order that is just and equitable, including-
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent
authority to correct the
defect.”
[193]
If the Court is minded to find that the Cabinet
and Parliament have failed in their section 7(2) duties, then this
Court must declare
such conduct to be invalid. The Court may suspend
this declaration of invalidity to allow for the defects to be cured
by Cabinet
and Parliament.
[194]
A
declarator stating the constitutional obligations of the State in
terms of section 7(2) is appropriate. So is a declarator that
the
State has failed to fulfil its constitutional obligations. In
Treatment Action Campaign
[134]
the Court remarked that the declaration must be in the form that
identifies the constitutional infringement.
[195]
For the order to be effective, in these
circumstances, it is also necessary for a mandatory order to be made.
As was stated in
Treatment Action Campaign
:
“
Where
a breach of any right has taken place, including a socio-economic
right, a court is under a duty to ensure that effective
relief is
granted. The nature of the right infringed and the nature of the
infringement will provide guidance as to the appropriate
relief in a
particular case. Where necessary this may include both the issuing of
a mandamus and the exercise of supervisory jurisdiction.”
[135]
[196]
In
My Vote Counts
NPC,
[136]
the Constitutional Court recently held that whilst suspension
normally accompanied a declaration of invalidity, it is not automatic

and should not be done if it served no purpose. What was needed to be
done in that case, however, was to make an order that directed

Parliament to cure the deficiency within the period the Court deemed
fit. The Court then proceeded to direct Parliament to amend

legislation and take any other measure it deemed appropriate within a
period of 18 months.
[137]
[197]
According to the applicants, given the history of
delay in introducing a relevant statute and pointedly the
finalisation of the
Bill, there is a possibility that the preparation
and initiation of the legislation may be slow or not take off at all,
leaving
the women and children in Muslim marriages without a remedy.
Even if the delay is justified, as the
State
respondents concerned have sought to demonstrate, prejudice to women
and children in Muslim marriages would still continue,
so setting a
reasonable time-line within which to comply is important.
[198]
Draft legislation has never been placed before
Parliament for consideration. It has stalled at the executive level,
which is entrusted
with preparing and initiating legislation in terms
of section 85(2)(d) of the Constitution. Unlike Parliament, the
executive is
not confronted with multiple political positions in
order to adopt policy and present it to Parliament in a form of a
draft. Directing
the executive to draft legislation does not pre-empt
a democratic process in Parliament, it simply requires the executive
to remedy
an unconstitutional position, whilst acknowledging that the
members of Parliament may exercise their democratic mandate. The
order
this Court grants should reflect these considerations.
[199]
Whilst the National Assembly as part of
Parliament can also initiate or prepare legislation in terms of
section 55(1)(b) of the
Constitution, it is not unreasonable to
accept the position that it may have been counter-productive and
unreasonable to introduce
legislation parallel to the process that
was already ensuing at the executive level. And that this is possibly
the kind of matter
that requires policy choices to be initiated at
the level of the executive. Therefore, Parliament’s contention
that the complaint
against it may be premature is not without
foundation.
[200]
Although, it may not be appropriate to find that
Parliament has failed to fulfil its duty, at this stage, it is,
however, just and
equitable to make an order that requires both the
executive and the legislature, as part of the State to work in
collaboration,
within their constitutionally defined roles, by
rectifying the failure identified and by fulfilling the duty placed
on the State
by section 7(2) of the Constitution to respect, protect,
promote and fulfil the rights in the Bill of Rights.
[201]
Finally on this issue of the remedy, the Gender
Commission also proposes supervision of the implementation of the
Order so as to
ensure that it is effective as in
AllPay
[138]
where a structural interdict was imposed
requiring SASSA to report back to Court at each of the crucial stages
of the new tender
process. This was further extended in
Black
Sash.
[139]
Whilst supervision has its advantages, this is not the kind of case
that warrants such a remedy. It certainly is distinguishable
from
cases where the Court had to adopt that approach. The Court in those
cases had to ensure that given the unlawful conduct that
prevailed,
which if continued unchecked would place the social security of
millions of South Africans in jeopardy, it had to supervise
the
progress. The case we are dealing with here is not at those levels
and furthermore it deals with sensitive and complex issues
of
religion, policy and law, in an area which has not been traversed
before. Whilst there is an infringement of constitutional
rights, the
courts have not before required the relevant State respondents to
fulfil their constitutional obligations in the manner
it would in
this judgment. Anticipation of or countering of non-compliance that
has not occurred is, therefore, inappropriate.
Supervision in this
context would amount to a breach of the separation of powers.
Should there be interim
relief?
[202]
The WLC is asking that, pending the finalisation
of legislation, there is an interim remedy of reading-in marriages
concluded according
to the tenets of Islamic law temporarily into the
Recognition Act. This Act, it was submitted is the most suited and
practical
as it already caters for and regulates, amongst others,
proprietary consequences of spouses in polygynous marriages. Concerns
raised
by the respondents and the Gender Commission in regard to this
proposed interim remedy have merit.
[203]
In
National
Coalition,
the Constitutional Court
formulated guidelines for determining when a ‘reading in’
remedy would be appropriate.
In summary, a court considering ‘reading
in’ should:
(i)
“
ensure
that the provision which results from severance or reading words into
a statute is consistent with the Constitution and its
fundamental
values
”;
(ii)
“
interfere
with the laws adopted by the Legislature as little as possible
”;
(iii)
be
able to “
define
with sufficient precision how the statute ought to be extended in
order to comply with the Constitution
”;
(iv)
strive
to be “
as
faithful as possible to the legislative scheme within the constraints
of the Constitution
”;
(v)
the
‘reading in’ remedy should not result in an
“
unsupportable
budgetary intrusion
”;
and
(vi)
where
“
reading
in would, by expanding the group of persons protected, sustain a
policy of long standing or one that is constitutionally
encouraged,
it should be preferred to one removing the protection
completely
”.
[140]
[204]
In
Sarrahwitz v Maritz
N.O.
,
[141]
the Constitutional Court held that this remedy does not necessarily
infringe the separation of powers:
“
[Severance
and reading in] would not undermine separation of powers for at least
two reasons. The remedy of severance or reading-in
has been part of
our constitutional jurisprudence for many years now. It was developed
with due regard to the separation of powers
principle.  And this
continues to be so because a resort to these remedies has never
precluded Parliament from amending the
invalidated provisions
whichever way it pleases, provided it does so mindful of the need to
cure the constitutional defect(s) identified
by this court. It is
therefore open to Parliament to even enact an altogether new piece of
legislation in response to this judgment.
Severance and reading-in were resorted to by this court in several
cases where it was considered eminently suited to address a
constitutional
defect. And this is one of those cases where this
remedy is appropriate
.”
Is
an interim remedy suitable and if so what form should it take?
[205]
If the Recognition Act is made applicable to
Muslim marriages, the entire statute will apply. In terms of section
7(2) of the Recognition
Act a “
customary
marriage entered into after the commencement of this Act in which a
spouse is not a partner in any other existing customary
marriage, is
a marriage in community of property, unless such consequences are
specifically excluded by the spouses in an antenuptial
contract.
”
The
Matrimonial Property Act applies
in that regard.
[142]
In
MN v MM and Another,
[143]
it was stated that a second customary
marriage, entered into without compliance with
section 7(6)
, which
required court approval over the antenuptial agreement, would be a
marriage out of community property.
Section 7(1)
was found in
Gumede
to be unconstitutional insofar as it did not
apply to customary monogamous marriages entered into before the
commencement of the
Recognition Act.
[144]
The order, however, applied to marriages that were in existence at
the time of that Court Order.
Ramuhovhi
[145]
extended the finding in
Gumede
to polygynous marriages. For marriages concluded before the
Recognition Act, it made an order that w
ives
and husbands will
have
joint
and equal ownership and other rights to, and joint and equal rights
of management and control over, marital property, during
the period
of suspension and whilst affording Parliament time to cure the
defect. If Parliament fails to cure the defect, this
regime would
continue to apply after the period of suspension.  T
he
Court further held that its order would not "
invalidate
… any transfer of marital property
"
that had already occurred.
[146]
[206]
If the Recognition Act is made to apply to Muslim
marriages, this set of rules adopted in
Gumede
and
Ramuhovhi
would
also be transposed to Muslim marriages. As to retrospectivity, it can
be safely assumed that since the Recognition Act had
been in place
for many years before
Gumede
was decided in 2008 and
Ramuhovhi
in 2017, spouses in customary marriages would have been aware of the
Recognition Act. The same cannot be said of spouses in Muslim

marriages.
[207]
Furthermore, applying the Recognition Act as an
interim measure may not only lead to confusion of spouses in Muslim
marriages as
to the applicable regime, it arguably will not be
reflective of Muslim beliefs. It will impose either common law
notions of ‘in’
or ‘out of community of property’
or the customary law approach developed in
Ramuhovhi
for polygynous marriages that were concluded before the Recognition
Act came into force.
[208]
An argument that an order that deems all Muslim
marriages to be in community of property would not be just and
equitable is compelling;
such an order could be viewed as intruding
on religious freedom. It would convert marriages that are currently
‘out of community
of property’ in terms of
Sharia
law to marriages ‘in community of property’. This will
apply to both existing and future marriages. It is one thing
to make
available the existing ordinary civil remedies for spouses in Islamic
marriages to enforce their rights and quite another
to drastically
alter the matrimonial regime that applies to Islamic marriages. The
legislature may, ultimately decide to make such
an inroad into
religious freedom, but that is a decision that should be left with
Parliament.
[209]
A
declarator by this Court that marriages concluded in terms of Islamic
law are ‘out of community of property’ would
not change
that position as the law and regime in regard to the Recognition Act
has been stated in the Act and by the Constitutional
Court in
Gumede
and
Ramuhovhi
.
Islamic marriages have their own marital regime and that should
be respected as far as possible pending the decisions of
the
legislature. Most importantly, this is an interim measure. The Court
cannot predict what Parliament will decide. It may decide
that by
default, the ‘out of community’ position should remain,
or prescribe a regime that is unique to Muslim marriages.
Altering of
the current regime by the Court could cause disruption to spouses in
Muslim marriages’ marital status and affairs,
only for that
position to be changed again by the legislature in a few years when
it passes legislation.
[210]
Converting marriages out of community of property
to those in community of property does not only have benefits for
women but may
also carry obligations in that spouses married in
community of property not only share the assets equally, the same
applies with
liabilities of each spouse.
[211]
Since the Recognition Act makes provision for the
registration of customary marriages by spouses, the Department of
Home Affairs
may be required to develop a registration system for
only an interim period which may have negative budgetary
significance.
All these issues make the Recognition Act an
unsuitable option for the interim.
[212]
The Gender Commission proposed changes to the
Divorce Act by
making marriages concluded in terms of Islamic law
subject to the
Divorce Act in
the interim, as the area of
vulnerability currently not taken care of by piecemeal court
intervention has been that of divorce,
fair distribution of assets
and custody orders.
[213]
The Gender Commission proposes that the
Divorce
Act should
be declared to apply to all Muslim marriages that still
subsist at the time of the granting of the order, in the interim. In
addition
that there should be a reading-in of words similar to
section 8(4)(b) and (c) of the Recognition Act, to accommodate
dissolution
of a marriage in a polygynous situation, to the
Divorce
Act. This
will entail introducing a new
section 7
(3A) which would
require a court granting a decree of divorce for the dissolution of a
Muslim marriage in the case of a husband
who is a spouse in more than
one Muslim marriage to take into consideration all relevant factors
including any contract, or agreement
and must make any equitable
order that it deems just. It may also order any person who in its
opinion has sufficient interest to
be joined in the proceedings.
[214]
The State respondents, particularly the Minister
of Home Affairs, is of the view that the proposed application of the
Divorce Act to
all Muslim marriages presents the Court with the same
challenges applicable in the transposition of Muslim marriages into
the Recognition
Act. In this regard, it is argued that the underlying
effect would be the replacement of the prescripts of the
Sharia
with the
Divorce Act. It
is submitted that the reading-in of the word
‘spouse’ to be inclusive of a spouse in a Muslim marriage
by the Courts
in previous instances, did not do violence to the
Sharia
canons, because
those were narrow, limited and minor; they did not disturb the
institution of a Muslim marriage, arrangements and
choices of the
parties involved or the marital regime of a Muslim marriage in terms
of the
Sharia
.
[215]
In terms of
section 3
of the
Divorce Act, a
marriage may be dissolved by a Court only when it is irretrievably
broken down or as a result of mental illness or continuous
unconsciousness of a party to a marriage. According to the
respondents opposing this relief, this is making inroads into the
concepts
of
Talãq
and
Faskh
which
parties to a Muslim marriage are entitled to exercise so long as they
comply with the tenets of
Sharia
.
[216]
This means marriage entered into in terms of
Sharia
would not
simply be dissolved by way of
Talãq
or
Faskh
as by law
(i.e. the
Divorce Act) these
are not recognised grounds for
dissolution of a marriage. Evidence would have to be given to the
satisfaction of the Court that
there was irretrievable breakdown of a
marriage as required by
section 4
of the
Divorce Act before
a decree
of divorce can be granted despite or over and above the
Talãq
and
Faskh
.
[217]
Counsel for Esau suggested far more radical
wording to be introduced into the
Divorce Act such
as that the
Talãq
and
Faskh
or a
Marriage Annulment Certificate by a responsible authority in Muslim
law shall be considered a decree of divorce to overcome
the seeming
inconsistency between the provisions of the
Divorce Act and
Sharia
law.
[218]
Section 7(3)
of the
Divorce Act which
was
suggested as a measure to apply to Muslim marriages on the interim
basis, by the Gender Commission and Esau currently reads
as follow
s:
“
A court
granting a decree of divorce in respect of a marriage out of
community of property-
(a)
entered into before the commencement of the
Matrimonial
Property Act, 1984
, in terms of an antenuptial contract by which
community of property, community of profit and loss and accrual
sharing in any form
are excluded; or
(b)
entered into before the commencement of the Marriage and
Matrimonial Property Law Amendment Act, 1988, in terms of section 22
(6)
of the Black Administration Act, 1927 (Act 38 of 1927), as it
existed immediately prior to its repeal by the said Marriage and
Matrimonial Property Law Amendment Act, 1988,
may, subject to
the provisions of subsections (4), (5) and (6), on application by one
of the parties to that marriage, in the absence
of any agreement
between them regarding the division of their assets, order that such
assets, or such part of the assets, of the
other party as the court
may deem just be transferred to the first-mentioned party.”
[219]
In terms of section 7(4) such an order shall not
be granted unless the Court is satisfied that it is equitable and
just to do so
“
by reason of the fact
that the party in whose favour the order is granted contributed
directly or indirectly to the maintenance
or increase of the estate
of the other party during the subsistence of marriage, either by
rendering of services, or the saving
of expenses which would have
otherwise have been incurred, or in any other manner
.”
[220]
Section 7(3) was discussed in
Bezuidenhout
[147]
by the Supreme Court of Appeal, wherein it was noted that—
“…
it
is a well-known fact that our common law provides for marriages in
community of property as the norm while the English system
does not.
The result is that, unlike in England, a marriage can in our law be
concluded out of community of property only if the
parties
consciously elect to do so in terms of an antenuptial agreement
executed before a notary public. Of course we know that
these
contracts often led to great inequity and unfairness, particularly
towards wives who performed their traditional role. This,
after all,
was the raison d'être for the enactment of s 7(3).
Nevertheless, its formulation reflects a deliberate choice
on the
part of the Legislature to limit the courts' discretion in
interfering with the contractual election - good or bad - made
by the
parties when they entered into their marriage. For instance, the
section applies only to marriages that were entered into
prior to the
commencement of the
Matrimonial Property Act 88 of 1984
on the basis
of an antenuptial contract. With regard to marriages entered into
subsequently, in terms of an antenuptial contract,
the section finds
no application at all. (They are governed by ch 1 of the
Matrimonial
Property Act 88 of 1984
.) Women whose marriages were entered into
later and with the exclusion of the accrual system may therefore be
in the same disadvantaged
position as before. Some suggest that the
Legislature was too conservative and the reasons for its choice
difficult to understand
(see eg June Sinclair An Introduction to the
Matrimonial Property Act 1984
at 49 - 52). One can sympathise with
these views. The fact remains, however, that the Courts cannot go
further than the Legislature
allows them to go and that the
Legislature does not allow them to treat all marriages upon divorce
as if they were in community
of property and without an antenuptial
contract.”
[221]
Section 7(3)
refers to marriages out of community
of property entered into before the commencement of the
Matrimonial
Property Act, in
terms an antenuptial contract by which community of
profit and loss and accrual sharing are excluded. It also refers to
marriages
entered into before the commencement of the Marriage and
Matrimonial Property Law Amendment Act 3 of 1988 and the Black
Administration
Act 38 of 1927. In these instances, the Court may, in
the absence of an agreement between the parties regarding division of
their
assets and on application by one of the parties to the
marriage, order that such assets, or such part of the assets of the
other
party as may be just be transferred to the other party.
[222]
The question arises as to those Muslim marriages
entered into after the commencement of the
Matrimonial Property Act
(and
other legislation mentioned in
section 7
(3)), where there is no
agreement between the parties. It seems to be common cause that
Islamic law does not recognise the concept
of communal property, and
division of property. Clearly, the reading into the
Divorce Act along
the lines suggested by the Gender Commission may not be sufficient.
It may be that insertions would have to be made either to the
Divorce
Act or
Matrimonial Property Act in
respect of those marriages.
[223]
These difficulties all point to complications as
they require a wholesale of changes in matters that may require
comprehensive legislative
reform. This is one of the reasons why the
Court in
Fourie
refrained from granting an interim order. Sachs J expressed the
complexities as follows:
“
...I
have come to the conclusion, however, that such an arrangement would
not be appropriate in the present matter.
It
is necessary to remember at all times that what is in issue is a
question of status.
Interim arrangements that would be replaced by subsequent legislative
determinations by Parliament would give to any union established
in
terms of such a provisional scheme a twilight and impermanent
character out of keeping with the stability normally associated
with
marriage. The dignity of the applicants and others in like situation
would not be enhanced by the furnishing of what would
come to be
regarded as a stop-gap mechanism.”
[148]
[224]
Whilst the issue here is not about the ability to
get married, as it was in
Fourie
but
proprietary consequences, the concerns remain which affect questions
of status, which are quite significant and in which Parliament
should
be given a free hand to establish a comprehensive framework having
regard to a particular policy position.
What should happen if
legislation is not enacted?
[225]
Notwithstanding what is
stated above, the state of inertia that has beset the executive for
the last 20 years which has, without
a doubt been brought about by
the controversial policy choices to be made, may simply
continue
despite the order to rectify the failure,
leaving
women and children in Muslim marriages that currently enjoy no
protection, vulnerable. It cannot be disputed that the realm
of
divorce remains the main lacuna currently giving rise to potential
injustice. It seems just and equitable for some form of default

regime, if legislation envisaged as the main remedy is not passed
within the time stipulated, to operate on a temporary basis until
the
coming to force of the legislation
on
some future date. There
seems to be no escaping that some form of judicial intervention may
be necessary, if no legislation is passed
after the period
stipulated
in the order.
[226]
A
temporary
provision making
the
Divorce Act applicable
may be the most suitable under the
circumstances. This would only be applicable if legislation is not
passed within the contemplation
of the main relief. They would have
had been given an opportunity to correct the defect and failed to do
so.
[227]
The application of the
Divorce Act would
mean
that from the religious point of view, whilst it may be that the
Muslim marriage can be terminated by any method recognised
under
Sharia
law; in its
civil aspect, the union would be terminable under the
Divorce Act.
[228]
In regard to proprietary
consequences in terms of
section 7(3)
of the
Divorce Act, a
court
exercises a “just and equitable” jurisdiction. Therefore,
the fact that the union is a Muslim marriage rather
than a civil
marriage can still be taken into account. This may allow some
religious sensitivities to be accommodated by the divorce
court.
This order would not only take care of the complaint
that children born of Muslim marriage do not enjoy “automatic
supervision”
upon divorce that children in other marriages do
but would also allow for redistribution of assets among the divorcing
spouses
based on what the court considers just and equitable.
[229]
As to the grounds of
divorce, in view of a concern that the requirement of “irretrievable
breakdown” may be too intrusive,
and may displace the
requirements under
Sharia
law,
a court
would grant a decree of divorce once satisfied that termination had
occurred under
Sharia
law.
It seems this can be accommodated
under
section 5A
of the
Divorce Act.
This
would mean that the court hearing divorce proceedings in this regard
would need to be sensitive to the requirements of Islamic
law.
[230]
It must be emphasised that
the temporary order would not seek to prohibit spouses in Muslim
marriages from conforming to
Sharia
prescripts if they so elect.
[231]
Lastly, it is worth
emphasising that the order would only be applicable to Muslim
marriages that subsist at the time of the coming
into operation of
the order. It will not apply to any marriage that has been validly
terminated in accordance with
Sharia
law prior to the order becoming operative.
[232]
This relief does not hinge
on the finding of constitutional invalidity of the
Divorce Act. Even
without an order of constitutional invalidity in this regard under
section 172(1)(a)
, the Court may grant an order that is just and
equitable under 172(1)(b) to ameliorate the hardships pending
finalisation of legislation
by Parliament.
[149]
[233]
It is imperative that once
this relief kicks in, it be publicised to ensure certainty and
guidance. The Department of Justice and
the Department of Home
Affairs should be ordered to make publications widely in newspapers
and on radio stations, whatever is feasible,
to make sure that the
public is aware of the new dispensation involving Muslim marriages.
[234]
It is important to stress that this would be a
temporary measure, pending enactment of legislation. This measure
would be triggered
only upon a failure to enact legislation within
the contemplated period, and would place no constraints on the
legislative choices
available to the State.
[150]
It should neither be regarded nor become a permanent feature; such an
occurrence would be undesirable.
[151]
Interim
Master’s remedy
[235]
Faro is asking for an order directing the
Minister of Justice to put in place policies to regulate the holding
of enquiries by the
Master into the validity of marriages solemnised
according to the tenets of Islamic law in cases where benefits are
claimed in
terms of the
Intestate Succession Act and
the Maintenance
of Surviving Spouses Act. Rogers J in
Faro
,
whilst not deciding this issue expressed some reservations about the
relief sought noted that:
“
It
is unclear to me whether the Minister would have powers to lay down
policies and procedures for the Master other than by making

regulations as contemplated in s 103 (1) of the Administration Act of
Estates Act, in particular para (c) of that sub-section
”.
[152]
[236]
The concern expressed by Rogers J was justified.
There is no statutory obligation that we were made aware of, upon the
Minister
of Justice to put in place administrative policies and
procedures which govern the manner in which interstate succession in
respect
of Muslim marriages is conducted. That said, nothing prevents
the Ministers of Justice together with other relevant Minister
including
the Minister of Home Affairs to prepare non-binding
guidelines to assist the Master’s office to act consistently in
these
matters. The Minister may also consider issuing regulations in
this regard in terms of
section 103(1)
of the
Administration of
Estates Act.
Pro
forma contract
[237]
It is not necessary for the Court to deal with
the
pro forma
contracts at this stage, outside any statutory or regulatory
framework. These contracts are prepared by a religious body, and it

is alleged that its terms are in accordance with the prescripts of
Sharia
law.
Whether that is the case is not an issue for the court to entangle
itself in. More so, because parties to these contracts
are not before
court, it would be inappropriate for the Court to suddenly invalidate
their contracts. This relief should accordingly
fail.
Esau
matter
[238]
The Esau action has not been concluded. The
matter should be postponed for hearing on trial for the determination
of Esau’s
claim, to the extent there is one. It would be
premature to grant leave to amend particulars of claim as contented
for on behalf
of Esau. That should be the function of the Court
hearing the trial.
Costs
The WLC asks for costs
including costs of four counsel, on the basis, amongst others, that
the WLC was against nine State counsel.
In the first instance it was
appropriate that the legislature be represented by a set of counsel
different to the executive. Furthermore,
one may criticise the fact
that the President and each of the Ministers chose to be represented
by different sets of counsel. At
first blush, it may appear that
there was no value to having individual teams as issues are the same.
To their credit, argument
presented was particularly focused and
repetition was very limited, at least during oral argument. The
issues are quite complex
and do challenge constitutional conduct and
the role played by each of the members of the executive concerned as
well as the President
as the head of the executive.
[239]
Be that as it may, the key question is whether
the cost order asked for is justified. WLC’s counsel relied on
the judgment
of
Nkala
and Others v Harmony Gold Mining Company Limited and Others
[153]
to support the prayer for
costs. Demonstrably, the work between WLC counsel was shared. This is
a case that raises a host of diverse
and complex issues. In
Nkala
the parties advised that the costs of nine counsel would not exceed
that of three. In the circumstances, it seems just to order
costs to
include those of three counsel. Costs should only be ordered against
the relevant State respondents.
[240]
As
regards the Esau action, costs should be paid by the second and third
defendants, and such should include costs of two counsel.
The
suggestion by Esau’s counsel that the first defendant’s
costs (Mr Esau’s) should also be borne by the State
cannot
hold. The first defendant is not making common cause with the
plaintiff nor abides by the decision of the Court, he opposes
the
relief vehemently. He wishes for the status
quo
to remain. In any event, he has not asked for costs. Esau’s
(plaintiff’s) counsel took it upon himself to do so.
Concluding
remarks
[241]
A
thought occurred as to whether the order made by this Court should
not be referred to the Constitutional Court as envisaged by
section
172(2)(a) of the Constitution for the reason that, the order
declaring a failure to fulfil constitutional obligations by
the State
respondents, includes the President. Section 172(2)(a) provides that
a High Court may make an order “
concerning
the constitutional validity of … any conduct of the President
”
but that such an order is of no force unless confirmed by the
Constitutional Court.
[242]
The term “any conduct of the President”
was discussed by the Constitutional Court in
Pharmaceutical
Manufacturers
[154]
where it held that this section “
is to
be given a wide meaning as far as the conduct of the President is
concerned. The apparent purpose of the section is to ensure
that this
Court, as the highest Court in constitutional matters, should control
declarations of constitutional invalidity made
against the highest
organs of State.
”
[243]
However, the width of this section is not all
encompassing as held in a later decision by the Constitutional Court
in
Van Obo
.
[155]
There, the Court discussed
Pharmaceutical
Manufacturers
, noting that—
“
in that
case this court was called upon to decide whether to confirm an order
of the High Court that had declared invalid a proclamation
by the
President to bring into force an Act of Parliament. The Act concerned
had provided that it would come into operation on
a date to be
determined by the President. The national legislation concerned
required the President to take the positive step of
issuing a
proclamation.
Clearly, only the President could exercise
the power specially conferred on him by legislation. In other words,
the President did
not exercise executive authority together with
other members of the Cabinet. It is that conduct which the court
considered to be
susceptible to confirmation.
It must be
said that whilst Pharmaceutical Manufacturers considered the conduct
of the President to be a proper subject for confirmation
in that
case, it does not furnish the answer to the crisp question of which
conduct of the President, if any, is not susceptible
to confirmation
under s 172(2)(a).”
[156]
[244]
The Court in
Van Obo
,
distinguished the matter before it from
Pharmaceutical
Manufacturers
and limited the breadth of
section 172(2)(a) when it held that—
“
to
categorise all national executive functions at Cabinet level as
'conduct of the President' for the purposes of ss 167(5) and

172(2)(a), by mere virtue of the fact that the President is head of
the national executive, is to misconstrue the true nature of
the
national executive function envisaged by Ch 5 of the Constitution. It
may well be that the President has some residual authority
as head of
the national executive, but the primary responsibility lies with the
government, and with the Ministers to whom a specific
task has been
assigned in accordance with ss 91 and 92 of the Constitution.”
[157]
[245]
Cases in which the validity of “conduct of
the President” was referred to the Constitutional Court include
instances
where the President issued a proclamation to bring into
force an Act of Parliament;
[158]
decided to appoint a commission of enquiry;
[159]
and decided to set aside death sentences.
[160]
All of these cases are instances of the President’s
positive
conduct and where
only
the President’s had the power to perform the conduct that was
declared invalid.
[246]
In
Van Obo
,
the Court struck the matter that was referred to it in terms of
section 172(2)(a) from the roll as it held that the conduct in

question did not amount to “conduct of the President” and
thus did not fall within section 172(2)(a). In that matter,
the
impugned conduct concerned a request for diplomatic intervention by
government in terms of section 85(2) read together with
section 92(1)
of the Constitution, which made it clear that the Minister concerned
bore the constitutional responsibility to execute
the assigned powers
and functions. As the President only had residual powers in that
instance, it did not fall within section 172(2)(a)
for the purposes
of referral for confirmation.
[247]
In the present matter, the President exercises
executive authority, “
together with the
other members of the Cabinet, by … preparing and initiating
legislation
” as per section 85(2)(d) of
the Constitution. This was confirmed in the
Women’s
Legal Centre Trust
,
[161]
where the Court, whilst examining whether it had exclusive
jurisdiction over the subject-matter of the present case, held that

“[
t]he responsibility for preparing and
initiating legislation falls on the national executive as a whole,
and not exclusively on
the President acting as Head of State.
”
[248]
Therefore, this case would appear to fall within
the purview of the
Van Obo
limitation
and not amount to ‘any conduct of the President’ for the
purposes of referral for confirmation. Thus section
172(2)(a) would
not apply and the matter would not be referred to the Constitutional
Court.
[249]
It is worth
reminding the relevant branches of the State of the constitutional
sanction to perform all their constitutional obligations
diligently
and without delay as required by section 237 of the Constitution. The
issue of recognition and regulation of Muslim
marriages has been
outstanding for many years. It is accepted that the issues are of a
complex and controversial nature. That,
however, does not diminish
the obligation imposed on the State by section 7(2) of the
Constitution to,
inter
alia
, fulfil the rights in Chapter 2 of
the Constitution. Courts are required “
to ensure that
this injunction is followed. An order issued to achieve this purpose
therefore cannot be described as trenching upon
the separation of
powers
.”
[162]
As
Rogers J, in
Faro
predicted
,
“
t
here may come a
time when, owing to continued lethargy or paralysis on the part of
the executive promoters of legislation in this
field, a court will
need to intervene
”
[163]
referring to the slow pace at which the process of introducing
legislation recognising and regulating Muslim marriages was moving.
[250]
It is hoped
that
the executive and the
legislature
would act
without delay in bringing about legislation so as to eradicate the
continuous hardships faced by women and children in
Muslim marriages
highlighted in this judgment.
[251]
Finally,
appreciation is extended to each of the parties including
amici
for their well prepared and helpful argument and for assiduously
co-operating to limit the amount of argument when such was
called
for. This is not an uncomplicated matter. The Court is also grateful
for having been provided with a copy of the record
and written
argument in electronic format on tablet devices. This presented us
with very useful logistical assistance.
Order
[252]
In the result, the following orders are
proposed:
1.
It is declared that the State is obliged by section 7(2) of the
Constitution to respect, protect,
promote and fulfil the rights in
sections 9, 10, 15, 28, 31 and 34 of the Constitution by preparing,
initiating, introducing, enacting
and bringing into operation,
diligently and without delay as required by section 237 of the
Constitution, 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.
2.
It is declared that the President and the Cabinet have failed to
fulfil their respective constitutional
obligations as stipulated in
paragraph 1 above and such conduct is invalid.
3.
The President and Cabinet together with
Parliament are directed to rectify the failure within 24 months of
the date of this order
as contemplated in paragraph 1 above.
4.
In the event that the contemplated legislation is referred to the
Constitutional Court by the President
in terms of section 79(4)(b) of
the Constitution, or is referred by members of the National Assembly
in terms of section 80 of
the Constitution, the relevant deadline
will be suspended pending the final determination of the matter by
the Constitutional Court;
5.
In the event that legislation as contemplated in
paragraph 1 above is not enacted within
24
months from the date of this order or such later date as contemplated
in paragraph 4 above,
and
until
such time as the coming into force thereafter of such contemplated
legislation,
the following order shall
come into effect:
5.1
It is declared that a union, validly concluded as
a marriage in terms of
Sharia
law and which subsists at the time this order becomes operative, may
(even after its dissolution in terms of
Sharia
law) be dissolved in accordance with the
Divorce Act 70 of 1979
and
all the provisions of that Act shall be applicable, provided that the
provisions of section 7(3) shall apply to such a union
regardless of
when it was concluded; and
5.2
In the case of a husband who is a spouse in more
than one Muslim marriage, the court shall:
(a)
take into consideration all relevant factors including any contract
or agreement and must make any equitable order
that it deems just;
and
(b)   may
order that any person who in the court’s opinion has a
sufficient interest in the matter be joined in
the proceedings.
5.3
If administrative or practical problems arise in
the implementation of this order, any interested person may approach
this Court
for a variation of this order.
5.4
The Department of Home Affairs and the Department
of Justice shall publish a summary of the orders in paragraphs 5.1 to
5.2 above
widely in newspapers and on radio stations, whatever is
feasible, without unreasonable delay.
6.
An
order directing the Minister of Justice to put in place policies and
procedures regulating the holding of enquiries by the Master
of the
High Court into the validity of marriages solemnised in accordance
with the tenets of Islamic law is refused.
7.
An
order declaring the
pro forma
marriage contract attached as annexure “A” to the Women’s
Legal Centre Trust’s founding affidavit, to be
contrary to
public policy is refused.
8.
In
respect of matters under case numbers 22481/2014 and 4466/2013, the
President, the Minister of Justice and the Minister of Home
Affairs
are to pay the costs of the Women’s Legal Centre Trust
respectively, such costs to include costs of three counsel
to the
extent of their employment.
9.      In respect of the matter under case
number 13877/2015:
9.1
Ruwayda Esau’s claim to a part of the Magamat Riethaw Esau’s
estate, if any, is postponed
for hearing at trial along with Parts B
and E of the particulars of claim.
9.2
The Cabinet and the Minister of Justice shall pay Ruwayda Esau’s
costs in respect of Claim A,
such costs to include costs of two
counsel to the extent of their employment.
_______________________
NP BOQWANA
Judge of the High Court
I agree and it is so ordered.
_______________________
S DESAI
Judge of the High Court
I agree.
_______________________
G SALIE-HLOPHE
Judge of the High Court
APPEARANCES
WLC
v The President and Others
For
the Applicant:

Adv. N Bawa SC, Adv. M O’Sullivan,
Adv. M Adhikari and Adv. J Williams
Instructed
by:

Women’s Legal Centre Trust, Cape Town
For
the First Respondent:

Adv. A Gabriel SC and Adv. S Humphrey
For
the Second Respondent:
Adv. N Cassim SC, Adv.
G Papier and
Adv. M Davis
For
the Third Respondent:
Adv. MA Albertus SC and Adv. K Pillay
For
the Fourth Respondent:
Adv. TJB Bokaba
SC and Adv. L Gcabashe
Instructed
by:

The
State Attorney, Cape Town
For the Sixth
and
Seventh
Respondents:

Mr. Z Omar
Instructed
by:

Zehir Omar Attorneys
For
the Eighth Respondent:
Adv. R Moultrie
and Adv. S Kazee
Instructed
by:

Bowman Gilfillan Inc., Sandton, Johannesburg
For
the Ninth Respondent:                  Adv.
R Laka, Adv. H L Mokhutswane and
Adv. Jooste
Instructed
by:

Maluleke,
Seriti, Makume, Matlala Inc.
For
the Ninth Respondent
(Changed
legal team):
Adv.

R Nyman
Instructed
by:

J
Fredericks Attorneys
For the Amicus
for United
Ulama Council of
South Africa:         Mr M S
Omar
Instructed
by:

Z Barday Attorneys
For the Amicus
for Law
Society of South
Africa:

Mr. A Mahomed
Instructed
by:

Ashraf Mahomed Inc., Newlands, Cape Town
For the Amicus
for SA
Lawyers for
Change:

Ms. Parker Khan
Instructed
by:

Rehana Khan Parker, Cape Town
For the Amicus
for Muslim
Assembly:

Adv. S Mahomed
Instructed
by:

Webber Wentzel, Cape Town
For the Amicus
for Islamic
Unity
Convention:

Adv. Nagia-Luddy and Mr M S Omar
Instructed
by:

Z Omar Attorneys
For
the Amicus for
Commission
for
Gender
Equality:

Adv. M Bishop, Adv. A Christians and
Adv. C McConnachie
Instructed
by:

Legal Resources Centre
For the Amicus
for
Jamiat
(KZN):

Adv. E Vawda
Instructed by:

Kazi Attorney and Halday Attorneys, KZN
Faro v
Marjorie Bingham N.O. and Others
For
the Applicant:

Adv. N Bawa SC, Adv. O’Sullivan,
Adv. M Adhikari and Adv. J Williams
Instructed
by:

Women’s Legal Centre Trust, Cape Town
For
the Seventh and
Eighth
Respondents:

Adv. N Cassim SC,
Adv. G Papier and
Adv. M Davis
Instructed
by:

State Attorney, Cape
Town
R Esau
v M R Esau and Others
For the
Plaintiff:

Adv. J de Waal SC, Adv. A Newton and
Adv. B C Wharton
Instructed
by:

Parker and Khan Inc. Attorneys, Cape Town
For the First
Defendant:

Adv. A Lawrence
Instructed
by:

S Morgan
& Associates, Cape Town
For the Second
Defendant:
Adv. N Cassim SC,
Adv. G Papier and
Adv. M Davis
Instructed
by:

State Attorney, Cape
Town
For
the Third Defendant:
A
dv.
A Gabriel SC and Adv. S Humphrey
Instructed
by:

State Attorney, Cape Town
For the Amicus
for Women’s
Legal Centre
Trust:

Adv. N Bawa SC and Adv. J Williams
Instructed
by:

Women’s
Legal Centre Trust, Cape Town
[1]
Constitution of the Republic of South Africa, 1996 (Act 108 of
1996).
[2]
Section 1 of the Constitution
[3]
Section 2 of the Constitution.
[4]
Section 15(1).
[5]
Section 15(3)(a)(i) and (ii) of the Constitution.
[6]
Section 15 (3)(b).
[7]
Minister of Home Affairs v Fourie; Lesbian and Gay Equality
Project v Minister of Home Affairs
[2005] ZACC 19
;
2006 (1) SA 524
(CC) at para
63.
[8]
Fourie
above at para 70.
[9]
Dawood and Another v Minister of Home Affairs and Others; Shalabi
and Another v Minister of Home Affairs and Others; Thomas and

Another v Minister of Home Affairs and Others
2000 (8) BLCR 837
at para 31.
[10]
Daniels v Campbell N.O. and Others
[2004] ZACC 14
;
2004 (5) SA 331
(CC) at
para 108;
Moosa and Others v Minister of Justice and Correctional
Services and Others
[2018] ZACC 19
at para 16;
Amod
v Multilateral Motor Vehicle Accidents Fund (Commission for Gender
Equality Intervening
)
1999
(4) SA 1319
(SCA) at para 28; and
Faro v
Bingham
NO and Others
[2013] ZAWCHC 159
at para 41-5.
[11]
1860 (3) Searle 313.
[12]
1905 TS 59
.
[13]
1917 AD 302.
[14]
1972 (3) SA 203 (RA).
[15]
1983 (1) SA 1006 (AD).
[16]
1997 (2) SA 690 (C).
[17]
1997 (2) SA 261 (CC).
[18]
1999 (4) SA 1319 (SCA).
[19]
Ibid
at para 20.
[20]
2003 (9) BCLR 969 (C).
[21]
Daniels v Campbell N.O. and Others
[2004] ZACC 14
;
2004 (5) SA 331
(CC) at para 19.
[22]
Ibid
at para 23.
[23]
Ibid
at
para 74.
[24]
Ibid
at 75 (Footnotes omitted).
[25]
2005 (2) SA 272 (T).
[26]
2009 (5) SA 572 (CC).
[27]
Ibid
at paras 25-6
(Footnotes omitted)
.
[28]
In this regard see for instance, the judgment of
AM
v RM
2010 (2) SA 223
(ECP) , where
it was held that the remedy afforded by Rule 43 applied in a case
where validity of a Muslim marriage was in question
and a husband
had alleged termination of marriage under Islam law. See also
Hoosein v Dangor
2009
JDR 1212 (WCC).
[29]
[2018] ZACC 19
; 2018 JDR 0915 (CC); 2018 (5)
SA 13 (CC).
[30]
See
Daniels
above n 21 at para 77, fn 102 wherein it was
noted that:  “
Civil Proceedings
Evidence Act 25 of 1969 (s 10A recognises religious marriages for
the purposes of the compellability of spouses
as witnesses in civil
proceedings); Criminal Procedure Act 51 of 1977 (s 195(2) recognises
religious marriages for the purposes
of the compellability of
spouses as witnesses in criminal proceedings); Taxation Laws
Amendment Act 5 of 2001 (inserts a wider
definition of ‘spouse’
into
Transfer Duty Act 40 of 1949
, which in turn exempts from
transfer duty property inherited by the surviving spouse in a
religious marriage); Government Employees
Pension Law 1996,
Proclamation 21 of 1996
(s 1:definition
of ‘dependent’
and Schedule 1 item 1.19, definition of ‘spouse’);
Estate Duty Act 45 of 1955 (s 4(q)
read with the definition of
‘spouse in s 1 exempts from estate duty property accruing to
the surviving spouse in a religious
marriage); Child Care Act 74 of
1983, as amended by the Child Care Amendment Act 96 of 1996 (s 1 (d)
widens the definition of
‘marriage’ to include any
marriages concluded in accordance with a system of religious law)
”
[31]
Faro v Bingham NO and Others
[2013] ZAWCHC 159
(25 October
2013
)
.
[32]
Sharia
is defined in the Oxford English Dictionary (Online
2018) as: “
Islamic canonical law based on the teachings of
the Koran and the traditions of the Prophet (Hadith and Sunna),
prescribing both
religious and secular duties and sometimes
retributive penalties for lawbreaking. It has generally been
supplemented by legislation
adapted to the conditions of the day,
though the manner in which it should be applied in modern states is
a subject of dispute
between Muslim traditionalists and reformists”.
[33]
Talãq
has been described as “
the dissolution
of a Muslim marriage, immediately or at a later stage, by a husband
or his agent by using the word Talãq
or a synonym or
derivative thereof in any language
” as suggested by the
Muslim Marriages Bill, gazetted for public comment under GN 37 of
2011, No. 33946 (‘Muslim Marriages
Bill’).
[34]
Faskh
has been suggested to
mean “
a decree of dissolution of a
marriage granted by a court, upon the application of a husband or
wife, on any ground or basis permitted
by Islamic law
including, in the case of a wife, any one or more of
the following grounds…”
as per
the Muslim Marriages Bill, which proceeds to lists grounds such as
disappearance, failure to maintain, imprisonment of
a certain
period, mental illness, and cruelty.
[35]
‘
Iddah
has been suggested to mean “
the
mandatory waiting period arising from the dissolution of the
marriage by Talãq, Faskh or death during which period
the
wife may not remarry:
…” as per the Muslim
Marriages Bill.
[36]
Khula’
has been
suggested to mean “
the dissolution of
the marriage bond at the instance of the wife, in terms of an
agreement for the transfer of property or other
permissible
consideration between the spouses according to Islamic law
”
as per the Muslim Marriages Bill.
[37]
Women's Legal Centre Trust v President of the Republic of South
Africa and Others
2009 (6) SA 94 (CC).
[38]
Ibid
at para 28.
[39]
Ibid
.
[40]
Ibid
at para 31.
[41]
Act 3 of 2000.
[42]
Daniels
above n 21.
[43]
Faro
above n 31.
[44]
Women's Legal Centre Trust
above n 37 at para 19.
[45]
Carmichele v Minister of Safety and Security
and Another (Centre for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC)
at para 44 wherein
the Court was examining section 7(1) of the Interim Constitution and
section 8(1) of the Constitution and held
as follows:
“
Under
both the IC and the Constitution, the Bill of Rights entrenches
the rights to life,
human
dignity
and
freedom and security of the person.
The Bill of Rights
binds the State and all of its organs. Section 7(1) of the IC
provided:
'This chapter shall bind all
legislative and executive organs of State at all levels of
government.'
Section 8(1) of the
Constitution provides:
'The Bill of Rights applies to
all law, and binds the Legislature, the Executive, the Judiciary and
all organs of State.'
It follows that there is a
duty imposed on the State and all of its organs not to perform any
act that infringes these rights.
In some circumstances there would
also be a positive component which obliges the State and its
organs to provide appropriate
protection to everyone through laws
and structures designed to afford such protection.”
[46]
See
Glenister v President of the Republic of South Africa and
Others
2011 (3) SA 347
(CC) at 189.
[47]
Sections 9, 10, 15 (read with 31), 28 and 34 of the Constitution,
respectively.
[48]
Above n 21 at para 19.
[49]
Section 10 of the Constitution.
[50]
Government of the Republic of South Africa and Others v Grootboom
and Others
2001 (1) SA 46
(CC) (“
Grootboom
”)
at para 78.
[51]
See section 26 of the Marriage Act.
[52]
See
Christian Education South Africa v Minister of Education
[2000] ZACC 11
;
2000 (4) SA 757
(CC) at para 26.
[53]
See section 36 of the Constitution.
[54]
Adopted by the United Nations General Assembly in resolution 34/180
on 18 December 1979 and which South Africa signed on 29 January
1993
and ratified on 15 December 1995.
[55]
Adopted by the United Nations General Assembly under resolution
2200A (XXI) of 16 December 1966 and ratified by South Africa
on 10
December 1998.
[56]
Adopted by the Assembly of the African Union on 11 July 2003 and
ratified by South Africa on 17 December 2004.
[57]
Adopted by Southern African Development Community on 17 August 2008
and ratified by South Africa on 29 October 2012, with effect
from 22
February 2013.
[58]
2015 (5) SA 83
(CC) at para 49.
[59]
See
Trencon Construction (Pty) Ltd v Industrial Development
Corporation of South Africa Ltd and Another
2015 (5) SA 245
(CC)
at para 45.
[60]
See
Ryland
above n 16 at 703 and
Worcester Muslim Jamaa v
Nazeem Valley
2001 JDR 0733 (C).
[61]
See
Christian Education
above n 52 and
Kotze v Kotze
2003 (3) SA 628 (T).
[62]
Above n 46 at para 92.
[63]
2007 (3) SA 445
(D) at para 45.
[64]
Act 17 of 2006.
[65]
See section 39(2) and Chapter 12 of the Constitution. Also see
Bhe
and Others v Khayelitsha Magistrate and Others
[2004] ZACC 17
;
2005 (1) SA 580
(CC) at para 41 and
Gumede (born Shange) v President of the
Republic of South Africa and Others
2009 (3) SA 152
(CC) at para
20-1.
[66]
Volks N.O. v Robinson and Others
[2005] ZACC 2
at para 54.
[67]
General Recommendation No. 29 on Article 16, dated 30 October 2013,
at para 27.
[68]
Glenister
above n 46 at para 107.
[69]
See
My Vote Counts NPC v Speaker of the National Assembly and
Others
2016 (1) SA 132
(CC) at paras 51-3 and 69.
[70]
Fourie
above n 7 at paras 108-9.
[71]
See
Ryland
above n 16 at 703A-E;
Fourie
above n 7 at
para 92 and
De Lange v Presiding Bishop of the Methodist Church
of Southern Africa for the time being and Another
2015 (1) SA
106
(SCA) at para 33.
[72]
See
Faro
above n 31 at para 27.
[73]
See section 103(1).
[74]
See
Teddy Bear Clinic for Abused Children v Minister of Justice
and Constitutional Development
2014 (2) SA 168
(CC) at para 52.
[75]
See section 12(2) of the Children’s Act read with section
26(1) of the Marriage Act.
[76]
See
Chief Lesapo v North West Agricultural Bank
2000 (1) SA
409 (CC).
[77]
Doctors for Life International v Speaker of the National Assembly
and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC).
[78]
Ronald Bobroff & Partners Inc v De La Guerre; South African
Association of Personal Injury Lawyers v Minister of Justice and

Constitutional Development
2014 (3) SA 134
(CC) at para 6.
[79]
Section 231(4) of the Constitution.
[80]
See
Glenister
above n 46 at paras 92 (minority) and 191
(majority).
[81]
Section 185(1) of the Constitution.
[82]
See
Christian Education
above n 52 at para 26.
[83]
MEC for Education, Kwazulu-Natal and Others v Pillay
[2007] ZACC 21
;
2008 (1)
SA 474
(CC) at para 47.
[84]
See
My Vote Counts
above n 69 at paras 61-3 and 160.
[85]
Minister of Finance and Another v Van Heerden
[2004] ZACC 3
;
2004 (6) SA 121
(CC) at para 37.
[86]
Fraser
above n 17 at para 20.
[87]
Above n 85 at para 27.
[88]
See
Bhe
above n 65 at para 91;
Daniels
above n 21 at
para 22; and
Volks
above n 66 at 225.
[89]
[1997] ZACC 12
;
1998 (1) SA 300
(CC) at para 54.
[90]
Above n 26 at para 31.
[91]
DE v RH
above n 58 at para 39.
[92]
Hassam
above n 26 at para 33.
[93]
Ibid
at para 34.
[94]
Ibid
.
[95]
Ibid
at para 35.
[96]
Above n 21 at paras 25 and 107.
[97]
Above n 66 at para 225.
[98]
For example see
Daniels
above n 21 at paras 25; 107 and 108.
[99]
[2006] ZACC 4
;
2006 (4) SA 230
(CC) at para 61.
[100]
Moosa N.O.
above n 29. (Own emphasis)
[101]
Ibid
at para 16.
[102]
Glenister
above n 46 at para 200.
[103]
Glenister
above n 46 at para 189 (Footnotes omitted). See
also
Carmichele
above n 45 at para 44.
[104]
2002 (6) SA 431
(SCA) at para 20.
[105]
Glenister
above n 46 at para 107.
[106]
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at para 45.
[107]
Above
n 66 at para 112. See also
Fourie
above n 7 at
para 16;
J and Another v Director General,
Home Affairs and Others
[2003] ZACC 3
;
2003 (5) SA 621
(CC); and
Wagener v Pharmacare Ltd; Cuttings
v Pharmacare Ltd
2003 (4) SA 285
(SCA) at
paras 26-37 where the Court discussed the difficulties of imposing
strict liability for defective consumer products
through courts,
rather than through legislation.
[108]
Section 39(1) of the Constitution.
[109]
2015 (1) SA 315
(CC) at para 24.
[110]
Glenister
above n 46 at para 92.
[111]
Ibid
at para 189.
[112]
Ibid
at para 201.
[113]
Ibid
at para 195.
[114]
CEDAW was ratified on 15 December 1995; ICCPR was ratified on 10
December 1998, Women Protocol was ratified on 17 December 2004
and
the SADC Protocol was ratified on 29 October 2012.
[115]
See also CEDAW’s General Recommendation 21,
(1994) remarks follows in respect of Article 16(1)(c) at paras 17-8;
General
Recommendations 29, (30 October 2013) at para 15; and
General Recommendation 33, (23 July 2015) at
paras
45-6.
[116]
See also General Comment 19, (27 July 1990) adopted by the UN Human
Rights Committee, at para 9.
[117]
Recorded upon ratification on 17 December 2004. This was done to
protect women in customary marriages of which many are not
registered.
[118]
Glenister
above n 46 at para 195.
[119]
Singh v Minister of Justice and Constitutional Development and
Others
2013 (3) SA 66 (EqC).
[120]
Ibid
at para 24.
[121]
Ibid
at paras 40-7.
[122]
Government of the Republic of Zimbabwe v Fick
2013 (5) SA 325
(CC).
[123]
Ibid
at 66.
[124]
Ibid
at para 67.
[125]
My Vote Counts NPC v President of the Republic of South Africa
and Others
2017 (6) SA 501 (WCC).
[126]
Ibid
at para 42. (Own emphasis)
[127]
Glenister
above n 46 at para 194.
[128]
Masiya v Director of Public Prosecution, Pretoria and Another
(Centre for Applied Legal Studies and Another, Amici Curiae)
2007 (5) SA 30
(CC) at para 31.
[129]
Amod
above n 18 at para 26.
[130]
Daniels
above n 21 at para 108. (Footnote omitted, own
emphasis).
[131]
Moosa N.O.
above n 29 at para 16. See also
Faro
above
n 31 at para 44.
[132]
[1997] ZACC 6
;
1997 (3) SA 786
(CC) at para 69.
[133]
2000 (2) SA 1
(CC) at para 65. See also
President of the Republic
of South Africa & Another v Modderklip Boerdery (Pty) Ltd (Agri
SA & Others Amici Curiae)
2005 (5) SA 3
(CC) at para 58 and
AllPay Consolidated Investment Holdings (Pty) Ltd v Chief
Executive Officer, South African Social Security Agency and Others
2014 (4) SA 179
(CC) at para 42.
[134]
Minister of Health and Others v Treatment Action Campaign and
Others (No. 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC) at para 121.
[135]
Ibid
at para 106.
[136]
My Vote Counts NPC v Minister of Justice and
Correctional Services and Another
2018 (8)
BCLR 893
(CC) at paras 84-90.
[137]
Ibid
at para 91
[138]
AllPay Consolidated Investment Holdings (Pty) Ltd and Others v
Chief Executive Officer of the South African Social Security Agency

and Others
(No 2)
2014 (4) SA 179
(CC) at para 71.
[139]
Black Sash Trust v Minister of Social Development and Others
(Freedom Under law NPC Intervening
) 2017 (3) SA 335 (CC).
[140]
National Coalition
above n 133 at paras 74-5.
[141]
2015 (4) SA 491
(CC) at paras 71-2.
[142]
Section 7(3) of the Recognition Act,
[143]
2012 (4) 527 (SCA) at para 38.
[144]
Gumede v President of the Republic of South Africa and Others
2009 (3) SA 152 (CC).
[145]
Ramuhovhi and Others v President of the Republic of
South Africa and Others
2018 (2) SA 1 (CC).
[146]
Ibid
at para 71.7.
[147]
Bezuidenhout v Bezuidenhout
2005 (2) SA 187
(SCA) at para 21.
[148]
Fourie
above n 7 at para 154. (Own emphasis)
[149]
See
Head of Department: Mpumalanga Department of Education and
Another v Hoërskool Ermelo and Another
2010 (2) 415 (CC) at
para 97.
[150]
Sarrahwitz
above n 141.
[151]
Bhe
above n 65 at para 116.
[152]
Faro
above n 31 at para 40.
[153]
2016 (5) SA 240 (GJ).
[154]
Pharmaceutical Manufacturers Association of SA: In re Ex parte
President of the RSA
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at para 56.
[155]
Von Abo v President of the Republic of South Africa
2009 (5)
SA 345 (CC).
[156]
Ibid
at para 30. (Own emphasis)
[157]
Ibid
at para 41.
[158]
Pharmaceutical Manufacturers
(above n 154).
[159]
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
[1998] ZACC 21
;
1999
(2) SA 14
(CC)
(1999 (2) BCLR 175)
in para 28.
[160]
Sibiya and Others v Director of Public Prosecutions, Johannesburg
and Others
2005 (5) SA 315 (CC).
[161]
Above n 37 at para 23.
[162]
Economic Freedom Fighters and Others v Speaker of the National
Assembly and Another
2018 (2) SA 571
(CC) at para 217.
[163]
Faro
above n 31 at para 44