CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 24/21
In the matter between:
SPEAKER OF THE NATIONAL ASSEMBLY First Applicant
CHAIRPERSON OF THE NATIONAL
COUNCIL OF PROVINCES Second Applicant
and
WOMEN’S LEGAL CENTRE TRUST First Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Second Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Third Respondent
MINISTER OF HOME AFFAIRS Fourth Respondent
SOUTH AFRICAN HUMAN RIGHTS
COMMISSION Fifth Respondent
COMMISSION FOR THE PROMOTION
AND PROTECTION OF THE RIGHTS
OF CULTURAL, RELIGIOUS AND
LINGUISTIC COMMUNITIES Sixth Respondent
LAJNATUN NISAA-IL MUSLIMAAT
(ASSOCIATION OF MUSLIM
WOMEN OF SOUTH AFRICA) Seventh Respondent
and
COMMISSION FOR GENDER EQUALITY Intervening Party
MATHOPO J
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and
MUSLIM ASSEMBLY CAPE First Amicus Curiae
UNITED ULAMA COUNCIL OF SOUTH AFRICA Second Amicus Curiae
Neutral citation: Speaker of the National Assembly and Another v Women's Legal
Centre Trust and Others [2024] ZACC 18
Coram: Maya CJ, Gamble AJ, Kollapen J, Majiedt J, Mathopo J,
Mhlantla J, Rogers J, Theron J and Tshiqi J.
Judgments: Mathopo J (unanimous)
Order Issued on: 26 June 2024
Reasons issued on: 18 September 2024
Summary: Declaration of invalidity — extension of the period of suspension
— Marriage Bill — public involvement — urgent application —
just and equitable order
REASONS FOR ORDER
MATHOPO J (Maya CJ, Gamble AJ, Kollapen J, Majiedt J, Mhlantla J, Rogers J,
Theron J and Tshiqi J concurring):
Introduction
[1] This is an application for an extension of the period of suspension of the declaration
of invalidity, following this Court’s decision in Women’s Legal Centre Trust v President
of the Republic of South Africa .1 On 28 June 2022 , this Court handed down an order
1 Women’s Legal Centre Trust v President of the Republic of South Africa [2022] ZACC 23; 2022 (5) SA 323
(CC); 2023 (1) BCLR 80 (CC).
MATHOPO J
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that declared the Marriage Act 2 and the Divorce Act3 inconsistent with sections 9, 10,
28 and 34 of the Constitution , in that they fail to recognise marriages solemnised in
accordance with Sharia law (Muslim marriages). This Court also declared sections 6,
7(3) and 9(1) of the Divorce Act inconsistent with the Constitution.
[2] The declaration of consti tutional invalidity of 28 June 2022 was suspended for a
period of 24 months to allow Parliament to correct the defect, and was due to expire on
27 June 2024.
[3] On Wednesday, 26 June 2024, this Court made the following order:
1. “The declaration of invalidity i n paragraph 1.6 of the order of this Court
in Women’s Legal Centre Trust v President of the Republic of South
Africa [2022] ZACC 23; 2022 (5) SA 323 (CC); 2023 (1) BCLR 80 (CC)
is further suspended from 27 June 2024 to 27 June 2026.
2. No order as to costs is made.
3. Reasons for this order shall be given at a later date.”
[4] This matter was decided without a hearing, and these are the reasons for the order
of this Court, dated 26 June 2024.
Urgent extension application
[5] On 23 April 2024, approximately two months before the expiry of the suspension
period, the applicants, the Speaker of the National Assembly and the Chairperson of the
National Council of Provinces (collectively referred to as Parliament ), brought an
urgent application to this Court, seeking an ext ension of the suspension of declaration
of invalidity for another two years, until 27 June 2026.
[6] The Chief Justice issued directions requesting the following:
2 25 of 1961.
3 70 of 1979.
MATHOPO J
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1. “The applicants and respondents that are opposing this application are
directed to file written submissions of not more than 20 pages each in
which they address the following issues—
(a) the urgency of the application;
(b) any prejudice that may be suffered in granting the extension sought
by the applicants; and
(c) the prospects of the Marriage Bill [B43-2023] being passed during
the extended period of suspension.
2. The applicants must file written submissions on or before
Monday, 10 June 2024.
3. The respondents must file written submissions on or before
Monday, 17 June 2024.”
[7] Parliament filed written submissions within the prescribed time . The first
respondent (Women’s Legal Centre Trust) and the second respondent (President of the
Republic of South Africa) filed notices to abide. The other parties d id not participate
in these proceedings.
[8] Parliament submitted that the reason for the extension sought is to ensure that there
is meaningful public engagement in respect of the Marriage Bill , in accordance with
sections 59(1)(a) and 72(1)(a) of the Constitution.4 It also submitted that it is just and
equitable for the extension to be granted, to allow Parliament to cure the constitutional
defects, and that this Court has a wide discretion to do so.5
4 Sections 59(1)(a) reads:
“Public access to and involvement in National Assembly
(1) The National Assembly must
(a) facilitate public involvement in the legislative and other processes of
the Assembly and its committees”.
Section 72(1)(a) reads:
“Public access to and involvement in National Council
(1) The National Council of Provinces must facilitate public involvement in the legislative
and other processes of the Council and its committees”.
5 Acting Speaker of the National Assembly v Teddy Bear Clinic for Abused Children [2015] ZACC 16; 2015 (10)
BCLR 1129 (CC) at para 11; Zondi v Member of the Executive Council for Traditional and Local Government
Affairs [2005] ZACC 18; 2006 (3) SA 1 (CC); 2006 (3) BCLR 423 (CC) at para 45.
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[9] Parliament pointed out that the Divorce Amendment Act 6 was assented to by the
President on 6 May 2024 and, therefore, the defects in the Divorce Act identified by
this Court are not the subject of the application for extension, but only those defects that
the Marriage Bill is intended to cure. According to Parliament, this is an indication that
the Marriage Bill is likely to be passed in the extension period requested.
[10] The Marriage Bill, as submitted by Parliament, is complex in nature because it
involves different religious laws ( such as those that relate to the Muslim, Hindu and
Jewish faiths). It, therefore, requires multi-disciplinary research into the impact of the
policy development by all affected communities. Furthermore, this Bill requires input
from more than one government department.
[11] The Bill was only introduced to the National Assembly on 13 Decem ber 2023.
Parliament submitted that f ive months is not sufficient time to facilitate public
involvement, deliberate on the Bill , and finalise the provincial legislatures ’ processes.
Parliament has provided dates and timelines which indicate that it is taking the
necessary measures to comply with due process.
[12] In relation to urgency, Parliament referenced New Nation I7 and New Nation II 8
and submitted that their application demonstrates the presence of all the factors listed
that determine urgency. It submitted that if it is not granted the extension, it will not be
able to redress the defect in the Marriage Act and will have failed to comply with the
order. As stated, the suspension of invalidity initially granted by the order of this Court
was due to expire on 27 June 2024.
[13] Parliament submitted that no prejudice will be suffered because the necessary
steps have already been taken. As it stands, the Department of Home Affairs is
6 1 of 2024.
7 New Nation Movement NPC v President of the Republic of South Africa [2019] ZACC 27; 2019 (9) BCLR 1104
(CC) (New Nation I) at para 8.
8 See Speaker of the National Assembly v New Nation Movement NPC [2023] ZACC 12; 2023 (7) BCLR 897
(CC) (New Nation II) at para 19.
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registering Muslim marriages in terms of section 3 of the Recognition of Customary
Marriages Act.9 The promulgation of the Divorce Amendment Act is indicative of steps
being taken. Lastly, prejudice is more likely to be suffered if the relief sought in this
application is not granted because there will be no binding legisl ation to regulate
affected marriages.
[14] With regard to the prospects of the Bill being passed during the extension period
sought, Parliament relied on the steps that have already been taken. It stated that the
process is currently in the public participation stage and under the control of Parliament.
It submitted that, on average, Bills take 27 months to be passed by both Houses and that
it never exceeds a period of 48 months. Parliament states that it is certain that the Bill
will be passed within 24 months.
Analysis
Urgency
[15] The determination of urgency in the context of this application requires a
consideration of various factors. These include, but are not limited to, the adequacy of
the reasons provided for the failure to comply with the extended suspension period,
prejudice if the relief sought is or is not granted, and the prospects of curing the
constitutional defects within the new deadline or, more generally, the prospects of
complying with the deadline . I now turn to the facts as pleaded by Parliament to
determine whether a case for urgency has been made out.10
[16] As stated above, Parliament brought an urgent application before this Court
approximately five weeks before the expiry of the suspension period. Rule 12 of this
Court’s rules sets out the requirements for urgent applications. The rules require an
explicit setting out of the circumstances that would justify a departure from the ordinary
processes. This Court issued directions requesting specific submissions in order to
9 120 of 1998.
10 New Nation II above n 8 at para 19.
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exercise its discretion to satisfy itself that the matter is indeed urgent. After
27 June 2024, Parliament would have been in contravention of th e order contained in
the first judgment had the order of this Court not been granted on 26 June 2024. To
avoid such contravention, it was decided that this matter required the urgent attention
of this Court.
Power of this Court to grant extension
[17] This Court has the power to grant extension orders in respect of orders made in
terms of section 172 of the Constitut ion. According to section 172(1) (b), courts are
afforded a wide discretionary power to grant a just and equitable re medy if it is in the
interests of justice to do so. In New Nation II,11 dealing with a second application for
an extension of the period of suspension of the declaration of invalidity, this Court held
that—
“[a] proper case justifying the need for an extension must be made out because the
effect of suspending the operation of a declaration of invalidity is to preserve law which
has been found unconstitutional and void, usually, as was the case here, to afford
Parliament opportunity to remedy the defect.”
[18] Parliament has sufficiently indicated the steps that have been taken , and the
timelines cannot be faulted. Parliament has also managed to comply with the order in
relation to the Divorce Amendment Act. It is worth noting that the first respondent ,
who was the applicant in the initial judgment, did not oppose this urgent application ,
nor did any of the other pa rties. Additionally, Parliament has implemented temporary
measures to regulate affected marriages while the Bill undergoes the prescribed
legislative process. In my view, this suggests that there will be no prejudice suffered.
[19] Parliament has sufficiently explained the adverse implications of not granting an
extension on its constitutional obligations to provide a meaningful platform for public
participation. The Constitution recognises participatory democracy as a vital element
11 Id at para 22.
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of South Africa’s democracy. In South African Iron and Steel Institute ,12 it was held
that “the purpose of public participation and involvement in democratic processes is
primarily to influence decision -making processes that affect the will of the people ”13.
In Doctors for Life,14 Ngcobo J captured the idea of participatory democracy as follows:
“The participation by the public on a continuous basis provides vitality to the
functioning of representative democracy. It encourages citizens of the country to be
actively involved in public affairs, identify themselves with the institutions of
government and become familiar with the laws as they are made. It enhances the civic
dignity of those who participate by enabling their voices to be heard and taken account
of. It promotes a spirit of democratic and pluralistic accommodation calculated to
produce laws that are likely to be widely accepted and effective in practice. It
strengthens the legitimacy of legislation in the eyes of the people. Finally, because of
its open and public character it acts as a counterweight to secret lobbying and influence
peddling. Participatory democracy is of special importance to those who are relatively
disempowered in a country like our s where great disparities of wealth and influence
exist.”
[20] This Court also took judicial notice of the delay that will be occasioned due to
the 2024 elections. In the new term, Parliament will comprise new members. Some of
them will require time to familiarise themselves with the Parliamentary rules and
procedures governing the law-making processes as well as with the subject matter of
the Bill , taking into account its complexity in as far as the laws governing various
traditional and religious faiths are concerned.
[21] It was therefore just and equitable, and in the interests of justice, for the extension
to be granted and it was so ordered.
12 South African Iron and Steel Institute v Speaker of the National Assembly [2023] ZACC 18; 2023 (10) BCLR
1232 (CC) at para 28.
13 Id at para 28.
14 Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC);
2006 (12) BCLR 1399 (CC) at para 115.
For the Applicants:
M Gwala SC and N Mathe -Ndlazi
instructed by the State Attorney, Cape
Town