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[2020] ZASCA 177
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President of the RSA and Another v Womens Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others (612/19) [2020] ZASCA 177; [2021] 1 All SA 802 (SCA); 2021 (2) SA 381 (SCA) (18 December 2020)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 612/19
In
the matters between:
THE PRESIDENT OF THE REPUBLIC
OF
SOUTH AFRICA
FIRST

APPELLANT
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT

SECOND
APPELLANT
and
WOMEN’S
LEGAL CENTRE TRUST                                            FIRST

RESPONDENT
THE
MINISTER OF HOME AFFAIRS

SECOND
RESPONDENT
SPEAKER
OF THE NATIONAL ASSEMBLY                                THIRD

RESPONDENT
CHAIRPERSON OF THE NATIONAL
COUNCIL
OF PROVINCES

FOURTH RESPONDENT
LAJNATUN NISAA-IL MUSLIMAAT
(ASSOCIATION OF MUSLIM
WOMEN
OF SOUTH AFRICA)

FIFTH RESPONDENT
UNITED
ULAMA COUNCIL OF SOUTH AFRICA                       SIXTH

RESPONDENT
SOUTH AFRICAN HUMAN RIGHTS
COMMISSION
SEVENTH

RESPONDENT
COMMISSION FOR THE PROMOTION AND
PROTECTION OF THE RIGHTS OF CULTURAL,
RELIGIOUS AND LINGUISTIC
COMMUNITIES              EIGHTH
RESPONDENT
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
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT

APPELLANT
and
TARRYN
FARO                                                                        FIRST

RESPONDENT
MARJORIE BINGHAM NO
(IN HER CAPACITY AS THE EXECUTOR OF
THE DECEASED ESTATE OF MOOSA ELY –
ESTATE
NO
4190/2010)

SECOND RESPONDENT
MUJAID
ELY

THIRD RESPONDENT
SHARIFF
ELY

FOURTH RESPONDENT
TASHRICK
ELY

FIFTH RESPONDENT
MUSLIM
JUDICIAL COUNCIL
SIXTH

RESPONDENT
IMAM
IB
SABAN

SEVENTH RESPONDENT
THE
MASTER OF THE HIGH COURT

EIGHTH RESPONDENT
and
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT                                   APPELLANT
and
RUWAYDA
ESAU

FIRST RESPONDENT
MAGAMAT
RIETHAW ESAU

SECOND RESPONDENT
THE CABINET OF THE REPUBLIC
OF
SOUTH
AFRICA

THIRD RESPONDENT
GOVERNMENT
EMPLOYEES PENSION FUND

FOURTH RESPONDENT
MUSLIM
JUDICIAL
COUNCIL                                                 FIFTH

RESPONDENT
MUNEEBAH
JACOB

SIXTH RESPONDENT
Neutral
citation:
President
of the RSA and Another
v Women’s
Legal Centre Trust and Others
;
Minister
of Justice and Constitutional Development v Faro and Others; and
Minister of Justice and Constitutional Development v Esau
and Others
(Case no 612/19)
[2020] ZASCA 177
(18
December 2020)
Coram:
MAYA P, SALDULKER, VAN DER MERWE and
PLASKET JJA AND WEINER AJA
Heard:
25
and 26 August 2020 and 30 September 2020
Delivered:
This judgment was
handed down electronically by circulation to the parties’ legal
representatives by email. It has been published
on the Supreme Court
of Appeal website and released to SAFLII. The date and time for
hand-down is deemed to be 14h00 on 18 December
2020.
Summary:
Constitutional law – Muslim
marriages – whether there is a constitutional obligation on the
State to enact legislation
recognising Muslim marriages – in
the event that a breach of a constitutional obligation has been
established, the appropriate
remedy to be awarded.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (
Boqwana, Desai
and Salie-Hlophe JJ
sitting as court of
first instance): judgment reported
sub
nom
Women's Legal Centre Trust v
President of the Republic of South Africa and Others, Faro v Bingham
NO and Others, Esau v Esau and
Others
(22481/2014,
4466/2013, 13877/2015;
2018 (6) SA 598
(WCC).
1
The appeal and the cross-appeals succeed in part and the order of the
court
a quo is set aside and replaced with the following order:
‘
1.1
The Marriage Act 25 of 1961 (the Marriage Act) and
the Divorce Act 70 of 1979 (the
Divorce Act) are
declared to be
inconsistent with ss 9, 10, 28 and 34 of the Constitution of the
Republic of South Africa, 1996, in that they fail
to recognise
marriages solemnised in accordance with
Sharia
law (Muslim marriages) as valid marriages (which have not been
registered as civil marriages) as being valid for all purposes in

South Africa, and to regulate the consequences of such recognition.
1.2       It is declared that
s
6
of the
Divorce Act is
inconsistent with ss 9, 10, 28(2) and 34 of
the Constitution insofar as it fails to provide for mechanisms to
safeguard the welfare
of minor or dependent children of Muslim
marriages at the time of dissolution of the Muslim marriage in the
same or similar manner
as it provides mechanisms to safeguard the
welfare of minor or dependent children of other marriages that are
being dissolved.
1.3       It is declared that
s
7(3)
of the
Divorce Act is
inconsistent with ss 9, 10, and 34 of the
Constitution insofar as it fails to provide for the redistribution of
assets, on the
dissolution of a Muslim marriage, when such
redistribution would be just.
1.4       It is declared that
s
9(1)
of the
Divorce Act is
inconsistent with ss 9, 10 and 34 of the
Constitution insofar as it fails to make provision for the forfeiture
of the patrimonial
benefits of a Muslim marriage at the time of its
dissolution in the same or similar terms as it does in respect of
other marriages.
1.5       The declarations of
constitutional invalidity are referred to the Constitutional Court
for confirmation.
1.6       The common law
definition of marriage is declared to be inconsistent with the
Constitution and
invalid to the extent that it excludes Muslim
marriages.
1.7       The declarations of
invalidity in paras 1.1 to 1.4 above are suspended for a period of 24
months
to enable the President and Cabinet, together with Parliament
to remedy the foregoing defects by either amending existing
legislation,
or passing new legislation within 24 months, in order to
ensure the recognition of Muslim marriages as valid marriages for all
purposes in South Africa and to regulate the consequences arising
from such recognition.
1.8       Pending the coming
into force of legislation or amendments to existing legislation
referred to
in para 1.7, it is declared that a union, validly
concluded as a marriage in terms of
Sharia
law and subsisting
at the date of this order, or, which has been terminated in terms of
Sharia
law, but in respect of which legal proceedings have
been instituted and which proceedings have not been finally
determined as at
the date of this order, may be dissolved in
accordance with the
Divorce Act as
follows:
(a)       all the provisions of
the
Divorce Act shall
be applicable save that all Muslim marriages
shall be treated as if they are out of community of property, except
where there are
agreements to the contrary, and
(b)       the provisions of
s
7(3)
of
Divorce Act shall
apply to such a union regardless of when it
was concluded.
(c)        In the case of
a husband who is a spouse in more than one Muslim marriage, the court
shall:
(i)         take
into consideration all relevant factors including any contract or
agreement
and must make any equitable order that it deems just, and;
(ii)        may order that
any person who in the court’s opinion has a sufficient interest
in
the matter be joined in the proceedings.
1.9       It is declared that,
from the date of this order,
s 12(2)
of the Children’s Act 38
of 2005 applies to Muslim marriages concluded after the date of this
order.
1.10    For the purpose of applying paragraph
1.9 above, the provisions of
ss 3(1)
(a)
,
3
(3)
(a)
and
3
(3)
(b)
,
3
(4)
(a)
and
3
(4)
(b)
, and
3
(5) of the
Recognition of Customary Marriages Act 120 of 1998
shall apply,
mutatis mutandis, to Muslim marriages.
1.11    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.
1.12    The Department of Home Affairs and the
Department of Justice & Constitutional Development shall publish
a
summary of the orders in paragraphs 1.1 to 1.9 above widely in
newspapers and on radio stations, whatever is feasible, without
unreasonable delay.’
2   In the matter of
Faro v The Minister of
Justice and Constitutional Development
and Others
(Case no
4466/2013), no order is made in relation to the cross-appeal. It is
recorded that:
2.1       In recognition of the
fact that there currently are no policies and procedures in place for
purposes
of determining disputes arising in relation to the validity
of Muslim marriages and the validity of divorces granted by any
person
or association according to the tenets of
Sharia
law
(Muslim divorces) in circumstances where persons purport to be
spouses of deceased persons in accordance with the tenets of
Sharia
law and seek to claim benefits from a deceased estate in terms of the
provisions of the
Intestate Succession Act 81 of 1987
and/or the
Maintenance of Surviving Spouses Act 27 of 1990, the Minister of
Justice undertakes within 18 months of the granting
of this order to
put in place the necessary mechanisms to ensure that there is a
procedure by which the Master may resolve disputes
arising in
relation to the validity of Muslim marriages and Muslim divorces, in
all cases where a dispute arises as to whether
or not the persons
purport to be married in accordance with the tenets of
Sharia
law to the deceased persons and seek to claim benefits from a
deceased estate in terms of the provisions of the
Intestate
Succession Act 81 of 1987
and/or the Maintenance of Surviving Spouses
Act 27 of 1990;
2.2       In the event that the
Minister of Justice fails to comply with the undertaking in para 2.1
the
appellants may enrol the appeal in this Court on the same papers,
duly supplemented, in order to seek further relief.
3          The
Appellants (the President and the Minister of Justice) shall in
respect of
the matter under case no 13877/2015 (
Esau
) pay
Ruwayda Esau’s costs in respect of claim A (including the costs
of the appeal and cross-appeal) such costs to include
the costs of
three counsel to the extent of their employment.
4           In
respect of the matters under Case nos 22481/2014 and 4466/2013:
4.1       Paragraph 8 of the
order of the Western Cape Division of the High Court shall stand, in
terms
whereof 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 the costs of three
counsel to the extent of their employment.
4.2
The President and the Minister of
Justice shall pay the Women’s Legal Centre’s costs
of the
appeal and the cross-appeal, such costs to include the costs of three
counsel to the extent of their employment.
JUDGMENT
Saldulker
and Van der Merwe JJA (Maya P, Plasket JA and Weiner AJA concurring):
Introduction
[1]
The recognition of marriages
solemnised according to the tenets of the Islamic faith (Muslim
marriages) lies at the heart of this
appeal. Muslim marriages have
never been recognised nor regulated by South African law as valid
marriages despite 26 years under
a democratic constitutional
dispensation that is founded, inter alia, on the values of ‘[h]uman
dignity, the achievement
of equality and the advancement of human
rights and freedoms’.
[1]
This is, understandably, both
an emotive and contentious issue. South Africa has come a long way
since the judgments in
Ismail
v Ismail
,
[2]
and other cases such as
Kader
v Kader
,
[3]
Bronn v Fritz Bronn’s
Executors and Others
and
Seedat’s
Executors v The Master (Natal)
,
[4]
which withheld legal
recognition
from
Muslim marriages. Although we have had the benefit of judgments that
have emerged from the Constitutional Court, this Court
and high
courts, expressing trenchant criticism of the failure on the part of
the State to take steps to afford legal recognition
to Muslim
marriages, the historical disadvantages, hardships and prejudice for
parties to Muslim marriages, especially Muslim women
and children,
continues to prevail.
[2]
The views held in the pre-constitutional era by the South African
courts reflect a
refusal to recognise Muslim marriages, mainly
because these marriages were viewed as potentially polygynous, and
thus contra bonos
mores. A scornful and offensive attitude towards
persons married in terms of
Sharia
law prevailed.
[3]
The plight of Muslim women and children and the injustices suffered
by them as a result
of the absence of legal recognition of Muslim
marriages are particularly highlighted in the judgments that we refer
to below.
[5]
[4]
In
Daniels v
Campbell NO and Others,
[6]
Moseneke J succinctly stated:
‘
This
“persisting invalidity of Muslim marriages” is, of
course, a constitutional anachronism. It belongs to our dim
past. It
originates 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”.
These
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, s
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.’
[5]
In a similar vein, in
Hassam
v Jacobs NO and Others
,
[7]
Nkabinde J espoused the
following:
‘
The
prejudice directed at the Muslim community is evident in the
pronouncement by the Appellate Division in
Ismail
v Ismail
. 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 our society. Recognition
of
polygynous unions was seen as a retrograde step and entirely immoral.
The 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
.’
The WLC application
[6]
In 2009, the Women’s Legal Centre Trust (the WLC), an
organisation established
to advance women’s rights by
conducting constitutional litigation and advocacy on gender issues,
approached the Constitutional
Court for direct access in terms of s
167 of the Constitution, in an application concerning the same
substantive issues raised
in this matter. The application was
dismissed on the basis that no proper case had been made out for
direct access and so the matter
was not properly before the court.
[8]
[7]
During November 2015, the WLC launched a semi-urgent application in
the high court
against the President of the Republic of South Africa
(the President), the Minister of Justice and Constitutional
Development (Minister
of Justice), the Minister of Home Affairs, the
Speaker of the National Assembly, and the Chairperson of the National
Council of
Provinces, being the first to the fifth respondents.
[8]
The WLC contended that the State had failed to recognise and regulate
marriages solemnised
in accordance with the tenets of
Sharia
law and was consequently in breach of ss 7(2), 9(1), 9(2), 9(3),
9(5), 10, 15(1), 15(3), 28(2), 31 and 34 of the Constitution.
The WLC
argued that s 7(2) of the Constitution obliged the State to prepare,
initiate, introduce and bring into operation legislation
recognising
Muslim marriages, and that the President and Cabinet had failed to
fulfil this obligation. In the alternative, it essentially
sought
orders declaring the Marriage Act 25 of 1961 (the Marriage Act) and
the Divorce Act 70 of 1979 (the
Divorce Act), as
well as specified
provisions thereof, unconstitutional insofar as they fail to
recognise and provide for Muslim marriages.
The Faro application
[9]
In this application, Mrs Tarryn Faro, represented by the WLC,
launched an application
against Ms Marjorie Bingham in her capacity
as executrix of the estate of the late Mr Moosa Ely, (to whom Mrs
Faro had been married
according to Islamic rites), the Muslim
Judicial Council (MJC), the Master of the High Court, Western Cape
and the Minister of
Justice. The facts were as follows. On 28 March
2008, Mrs Faro and Mr Ely concluded a Muslim marriage, which was
terminated on
24 August 2009, when Mr Ely issued a
Talaq
(an Islamic divorce). However, the
Talaq
was subsequently revoked when Mr Ely and Mrs Faro resumed intimate
marital relations. No further
Talaq
was pronounced before Mr Ely died on 4 March 2010.
[10]
On 8 April 2010, however, Mr Ely’s daughter from an earlier
marriage, Ms Naziema Bardien,
obtained a certificate from the MJC,
without Mrs Faro’s knowledge, declaring that the marriage
between Mrs Faro and Mr Ely
had been annulled. On 21 April 2010, Mrs
Faro was appointed as the executrix of Mr Ely’s estate. The
Master then informed
her that Mr Ely’s estate could not be
wound-up until the dispute with regard to her marital status had been
resolved. After
meeting with Ms Bardien and the MJC, the Master, on 7
December 2011, resolved that the Muslim marriage had been validly
terminated.
On 10 April 2012, Ms Bingham was appointed as the
executrix of Mr Ely’s estate and she then proceeded to wind-up
the estate.
[11]
The WLC assisted Mrs Faro to lodge an objection to Mr Ely’s
liquidation and distribution
account, but to no avail. In 2013, Mrs
Faro launched an application in the high court for relief that
included: (a) the setting
aside of the Master’s failure to
uphold an objection that would have resulted in the recognition of
Mrs Faro as Mr
Ely’s spouse for the purposes of the Intestate
Succession Act 81 of 1987 (Intestate Succession Act) and the
Maintenance of
Surviving Spouses Act 27 of 1990 (the Maintenance of
Surviving Spouses Act); (b) for a declaration that Muslim marriages
are deemed
to be valid marriages in terms of the Marriage Act; in the
alternative, for a declaration that the common law definition of
marriage
be extended to include Muslim marriages; and further in the
alternative, an order directing the Minister of Justice to put in
place
policies and procedures in accordance with the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), to regulate the holding

of enquiries by the Master into the validity of a Muslim marriage,
where persons purporting to be spouses of a Muslim marriage
seek to
claim benefits from a deceased estate in terms of the provisions of
the
Intestate Succession Act and
the Maintenance of Surviving Spouses
Act; and (c) declaring that the Minister’s failure to implement
such policies and procedures
to be unlawful and unconstitutional. The
matter came before Rogers J, who upheld the relief claimed in (a),
declaring that the
marriage between Mrs Faro and Mr Ely subsisted at
the date of the latter’s death, and that she be recognised as a
‘spouse’
for the purposes of the
Intestate Succession
Act, and
as a ‘survivor’ for purposes of the Maintenance
of Surviving Spouses Act. Mrs Faro thereafter approached the high
court
in respect of the remaining issues.
The Esau application
[12]
In this application, Mrs Ruwayda Esau launched an urgent application
for an interdict against
Mr Esau, (with whom she had concluded a
Muslim marriage in October 1999), the Government Employees Pension
Fund (GEPF), the Minister
of Justice, the Cabinet of the Republic of
South Africa and the MJC. The interdict was to prevent the GEPF from
paying out to Mr
Esau 50% of his pension interest, pending an action
to be instituted by Mrs Esau for payment of the pension interest to
her. The
interdict was granted. Mrs Esau’s claim in the action
proceedings was premised on the State’s failure to enact
legislation
recognising and regulating Muslim marriages, based on
constitutional principles and on the existence of a universal
partnership.
The issue of the constitutional claim was separated from
the other issues and it was heard in the high court in a consolidated
hearing.
Judgment of the high court.
[13]      The three aforegoing
applications, that of the WLC, Mrs Faro and Ms Esau, were
consolidated and
came before the full bench of the Western Cape
Division of the High Court (the high court). Boqwana J (with whom
Desai and Salie-Hlope
JJ concurred) issued the following order:
‘
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.’
[14]
The high court granted the President and the
Minister of Justice leave to appeal to this Court. It
also granted
the WLC and Mrs Esau leave to cross-appeal. The cross-appeal of the
WLC was directed at paras 5 and 6 of the order
of the high court. Mrs
Esau cross-appealed to obtain effective interim relief pending the
legislation envisaged in the order of
the high court. The WLC also
obtained leave to conditionally cross-appeal: in the event of the
appeal succeeding in respect of
the main relief, it would seek the
granting of the alternative relief that it had sought in the high
court. The South African Human
Rights Commission (SAHRC) and Mrs Faro
also opposed the appeal. The Commission for Gender Equality and the
United Ulama Council
of South Africa (UUCSA) presented argument to
this Court as amici curiae.
[15]
During argument in this Court the appellants made concessions
that had a profound impact on the determination of
the appeal. After
having had the opportunity to take specific instructions, counsel for
the appellants placed on record that they
conceded that the Marriage
Act and the
Divorce Act infringed
the constitutional rights to
equality, dignity and access to justice of women in Muslim marriages
in that they failed to recognise
Muslim marriages as valid marriages
for all purposes. The appellants   conceded too that the
rights of children born
in Muslim marriages were, under s 28 of the
Constitution, similarly infringed. Thus the appellants, in essence,
acceded to the
alternative relief. These concessions were made fairly
and correctly, for the reasons elaborated upon in the high court
judgment.
For present purposes it suffices to emphasise the
following.
[16]
The considerations that led Nkabinde J to conclude in
Hassam
[9]
that the differentiation in
respect of Muslim women amounted to discrimination on a ground listed
in s 9(3), are of equal application
in this instance:
‘
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.
I am satisfied that the Act
differentiates between the groups outlined above.
Having found
that the Act differentiates between widows in polygynous Muslim
marriages like the applicant’s on the one hand,
and widows who
were married in terms of the Marriage Act, widows in monogamous
Muslim marriages and widows in polygynous customary
marriages, on the
other, the question arises whether the differentiation amounts to
discrimination on any of the listed grounds
in section 9 of the
Constitution. The answer is yes. As I have indicated above our
jurisprudence on equality has made it clear
that the nature of the
discrimination must be analysed contextually and in the light of our
history.  It is clear that in
the past, Muslim marriages,
whether polygynous or not, were deprived of legal recognition for
reasons which do not withstand constitutional
scrutiny today. It
bears emphasis that our Constitution not only tolerates but
celebrates the diversity of our nation. The celebration
of that
diversity constitutes a rejection of reasoning such as that to be
found in
Seedat’s Executors
v The Master (Natal
)
,
where the
court declined to recognise a widow of a Muslim marriage as a
surviving spouse because a Muslim marriage, for the
very reason
that it was potentially polygynous, was said to be “reprobated
by the majority of civilised peoples, on grounds
of morality and
religion”.’
[17]
In
Moosa
NO and Others v Minister of Justice and Correctional Services and
Others
[10]
the Constitutional Court
accurately described how the persistent non-recognition of Muslim
marriages infringed the right to dignity
of Muslim women:
‘
The
non-recognition of her right to be treated as a “surviving
spouse” for the purposes of the
Wills
Act, and
its
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.’
[18]
The rights to protection of children from
Muslim marriages are infringed in that upon the dissolution
of the
marriage they are not afforded the ‘automatic’ court
oversight of
s 6
of the
Divorce Act in
relation to their care and
maintenance. In addition, they are not protected by a statutory
minimum age for consent to marriage.
Neither s 24 of the Marriage
Act
[11]
nor s 12(2)
(a)
of the Children’s
Act 38 of 2005
[12]
are applicable. It goes
without saying that the non-recognition of Muslim marriages for women
infringes the right to access to courts
under s 34 of the
Constitution.
[19]
In the light of the concessions made by the appellants, we requested
the parties to formulate
a draft order by agreement or, at least, to
find substantial common ground. For this purpose the matter stood
down from 26 August
2020 until 30 September 2020. Nevertheless, the
parties were unable to agree to a draft order. The appellants and the
WLC (supported
by the SAHRC) each placed their own draft order before
us. However, a perusal of the draft orders indicated that a lot of
common
ground had indeed been found, and that the issues for
determination were reduced markedly. We appreciate the efforts and
inputs
of the parties and the amici in this regard.
[20]    In order to demonstrate the areas
of agreement and the issues that remain for decision, it is expedient
to
set out the draft order presented by the appellants, as amplified
in argument:
‘
1.
The appeal and the cross-appeals
succeed in part and the order of the court a quo is set
aside and
replaced with the following order:
2.         The
Marriage Act 25 of 1961 and the Divorce Act 70 of 1979 (the
Divorce
Act) are
declared to be inconsistent with sections 9,10, 28 and 34 of
the Constitution of the Republic of South Africa, 1996, in that they

fail to recognise marriages solemnised in accordance with
Sharia
law (Muslim marriages) as valid marriages (which have not been
registered as civil marriages) as being valid for all purposes in

South Africa, and to regulate the consequences of such recognition.
3.         It is
declared that
s 6
of the
Divorce Act is
inconsistent with sections 9,
10, 28(2) and 34 of the Constitution insofar as it fails to provide
for mechanisms to safeguard the
welfare of minor or dependent
children of Muslim marriages at the time of dissolution of the Muslim
marriage in the same or similar
manners as it provides mechanisms to
safeguard the welfare of minor or dependent children of other
marriages that are being dissolved.
4.         It is
declared that
s 7(3)
of the
Divorce Act is
inconsistent with sections
9,10, and 34 of the Constitution insofar as it fails to provide that
at the dissolution of a Muslim
marriage for the transfer of assets of
a spouse in a Muslim marriage where such spouse contributed directly
or indirectly to the
maintenance or increase of the estate of the
other party during the subsistence of the Muslim marriage either by
the rendering
of services or the saving of expenses, which would
otherwise have been incurred or in any other manner.
5.         It is
declared that
s 9(1)
of the
Divorce Act is
inconsistent with sections
9, 10 and 34 of the Constitution insofar as it fails to make
provision for the forfeiture of the patrimonial
benefits of a Muslim
marriage at the time of its dissolution in the same or similar terms
as is provided for in
s 9(1)
of the
Divorce Act in
respect of other
marriages.
6.         The
declarations of constitutional invalidity are referred to the
Constitutional Court
for confirmation.
7.         The common
law definition of marriage is declared to be inconsistent with the
Constitution
and invalid to the extent that it excludes Muslim
marriages.
8.         The
declarations of invalidity in paras 2 to 5 above are suspended for a
period of
24 months to enable the President and Cabinet, together
with Parliament to remedy the foregoing defects by either amending
existing
legislation, or passing new legislation within 24 months, in
order to ensure the recognition of Muslim marriages as valid
marriages
for all purposes in South Africa and to regulate the
consequences arising from such recognition.
9.         Pending
the coming into force of legislation or amendments to existing
legislation
referred to in para 8:
9.1.      It is declared that a
union, validly concluded as a marriage in terms of
Sharia
law
and subsisting at the date of this Order, or, which has been
terminated in terms of
Sharia
law, but in respect of which
legal proceedings have been instituted and which proceedings have not
been finally determined as at
the date of this order, may be
dissolved in accordance with the
Divorce Act as
follows:
9.1.1    all the provisions of the
Divorce Act
shall
be applicable save that all Muslim marriages shall be treated
as if they are out of community of property “unless agreed
otherwise”, and
9.1.2    the provisions of
s 7(3)
of
Divorce
Act shall
apply to such a union regardless of when it was concluded.
9.2.      In the case of a husband
who is a spouse in more than one Muslim marriage, the court shall:
9.2.1    take into consideration all
relevant factors including any contract or agreement and must make
any equitable
order that it deems just, and;
9.2.2    may order that any person who in
the court’s opinion has a sufficient interest in the matter be
joined
in the proceedings.
9.3       It is declared that
from the date of this order
s 12(2)
of the Children’s Act 38 of
2005 applies to Muslim marriages concluded after the date of this
order.
9.4       For the purpose
of applying paragraph 9.3 above, the provisions of
ss 3(1)(a)
,
3
(3)(a) and
3
(3)(b),
3
(4)(a) and
3
(4)(b), and
3
(5) of the Recognition
of Customary Marriages Act 120 of 1998 shall apply, mutatis mutandis
to Muslim marriages.
9.5       If serious
administrative or practical problems arise in the implementation of
this order, any
interested person may approach this Court for a
variation of this order.
9.6       The Department of
Home Affairs and the Department of Justice shall publish a summary of
the orders
in paragraphs 9.1 to 9.3 above widely in newspapers and on
radio stations, whatever is feasible, without unreasonable delay.
10. In the matter of
Faro v The Minister of Justice
and Constitutional Development
and Others
(Case no
4466/2013), no order is made in relation to the cross-appeal. It is
recorded that:
10.1     In recognition of the fact that
there currently are no policies and procedures in place for purposes
of
determining disputes arising in relation to the validity of Muslim
marriages and the validity of divorces granted by any person
or
association according to the tenets of
Sharia
law (Muslim
divorces) in circumstances where persons purport to be spouses in
accordance with the tenets of
Sharia
law of deceased persons
and seek to claim benefits from a deceased estate in terms of the
provisions of the
Intestate Succession Act and/or
the Maintenance of
Surviving Spouses Act, the Minister of Justice undertakes within 18
months of the granting of this order to
put in place the necessary
mechanisms to ensure that there is a procedure by which the Master
may resolve disputes arising in relation
to the validity of Muslim
marriages and Muslim divorces, in all cases where a dispute arises as
to whether or not the persons purport
to be married in accordance
with the tenets of
Sharia
law to the deceased persons and seek
to claim benefits from a deceased estate in terms of the provisions
of the
Intestate Succession Act and/or
the Maintenance of Surviving
Spouses Act ;
10.2     In the event that the Minister
of Justice fails to comply with the undertaking in para 10.1, the
appellants
may enrol the appeal in this Court on the same papers,
duly supplemented with this recordal, in order to seek further
relief.
11.       The Appellants
(the President and the Minister of Justice) shall in respect of the
matter
under case no 13877/2015 (
Esau
) pay Ruwayda Esau’s
costs in respect of claim A (including the costs of the appeal and
cross-appeal) such costs to include
the costs of three counsel to the
extent of their employment.
12.       In respect of
matters under Case nos 22481/2014 and 4466/2013:
12.1     Paragraph 8 of the order of the
Western Cape High Court shall stand, in terms whereof 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 the costs of three counsel to the extent of their
employment.
12.2
The President and the Minister of Justice shall pay the Women’s
Legal Centre’s costs of
the appeal and the cross-appeal, such
costs to include the costs of three counsel to the extent of their
employment.’
[21]
The WLC and the SAHRC contended that the appeal against para 1 of the
order of the high court should be dismissed.
This raised the question
whether the Constitution obliged the State to enact legislation. The
WLC agreed that in the event of this
question being answered in the
negative, orders should be made in terms of paras 1, 2, 3, 4 and 5 of
the appellants’ draft,
save that paras 2 to 5 should include a
reference to s 15 of the Constitution. It was submitted that the
relevant provisions are
also inconsistent with s 15. The WLC agreed
that paras 6, 7, 8, 9.2, 9.3, 9.4, 9.5 and 9.6 should, in any event,
be granted. In
respect of the regime to be put in place pending the
coming into force of the envisaged legislation, it proposed that the
application
of para 9.1 should not be limited to existing Muslim
marriages. Its stance was that the interim position as set out in
para 9.1
should apply to all Muslim marriages which subsisted on or
after 27 April 1994, regardless of: when they were concluded; when
they
were dissolved (in terms of
Sharia
law); whether litigation in respect of such dissolution and/or its
consequences is pending; and irrespective of the matrimonial
property
regime that applied. It suggested, however, that this order should
not invalidate a winding-up of a deceased estate that
has been
finalised or the transfer of property by a party to the marriage that
has been affected, unless: the property is transferred
to a person or
legal entity connected to a party to the divorce action; the
transferee was aware at the time of transfer that the
property formed
part of assets in a divorce action; or the transferee was married or
had concluded a civil union with a party to
the divorce action. The
draft orders reflected agreements that had been reached in the Esau
and Faro matters, and nothing more
needs to be said about the issues
in those matters.
[22]      It follows that the
following issues remained for decision:
(a) Whether the Constitution places an obligation on the
State to prepare, initiate, introduce and bring into operation
legislation
to recognise Muslim marriages as valid marriages and to
regulate the consequences of such recognition;
(b) whether the provisions in question are inconsistent
with s 15 of the Constitution; and
(c) whether the interim measure should have
retrospective operation as contended for.
We
address these issues in turn.
Is the State under an obligation to enact legislation
under the Constitution
[23]      The SAHRC contended that
the State is bound by international instruments to which it is a
party, to
enact legislation recognising and regulating Muslim
marriages. Its argument was based on four instruments that had been
ratified
by Parliament under s 231(2) of the Constitution but not
domesticated under s 231(4). They are:
(a) The United Nations Convention on the Elimination of
all forms of Discrimination against Women (CEDAW);
(b)  the International Covenant on Civil and
Political Rights (the ICCPR);
(c) the Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa (the AC
Women’s
Protocol); and
(d)
the SADC Protocol on Gender and Development (the SADC Gender
Protocol).
[24]
However, a perusal of the provisions relied upon, indicate that their
purpose and import are to advance equality
between men and women or
spouses. They require State parties to enact legislation and take
measures to this end. By way of example,
we refer to Article 16(1) of
CEDAW;
[13]
Article 23(4) of the
ICCPR;
[14]
Article 7 of the AC Women’s
Protocol
[15]
and Article 8(1) of the SADC
Gender Protocol.
[16]
We were not referred to any
provision that requires legislation to establish equality between
women that are married under different
marital regimes. In the result
we find that these instruments do not oblige the State to enact the
legislation relevant to this
matter.
[25]      As we have indicated,
the WLC’s case was that s 7(2) of the Constitution placed an
enforceable
obligation on the State to enact the legislation that it
advocates for. Section 7 of the Constitution reads:
‘
7
Rights
(1
)
This
Bill of Rights is a cornerstone of democracy in South Africa. It
enshrines the rights of all people in our country and
affirms the
democratic values of human dignity, equality and freedom.
(2)
The
state must respect, protect, promote and fulfil the rights in the
Bill of Rights.
(3) The rights in the Bill of Rights
are subject to the limitations contained or referred to in section
36, or elsewhere in the
Bill.’
[26]
In arriving at its conclusion, on the issues relevant before this
Court, the high court, reasoned,
[17]
inter alia:
‘
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
.’
[27]
The high court placed much reliance on
Glenister
v President of the Republic of South Africa and Others
[18]
where Moseneke DCJ and Cameron
J, for the majority, said:
[19]
‘
The
obligations in these [international] conventions are clear and they
are unequivocal. They impose on the Republic the duty in

international law to create an anti-corruption unit that has the
necessary independence. That duty exists not only in the
international
sphere, and is enforceable not only there. 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 s
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 s 7(2) is the requirement
that
the steps the State takes to respect, protect, promote and fulfil
constitutional rights must be reasonable and effective
.’
And:
[20]
‘
And
since in terms of s 8(1), the Bill of Rights “binds
the legislature, the executive, the judiciary and all organs
of
state”, it follows that the executive, when exercising the
powers granted to it under the Constitution, including the
power to
prepare and initiate legislation, and in some circumstances
Parliament, when enacting legislation, must give effect to
the
obligations s 7(2) imposes on the State
.’
[28]
In
Glenister,
the majority held that international law which was ratified had
become part of our law and part of our Constitution and this,
therefore, imposed an obligation on the State to legislate for an
anti-corruption unit. The
Glenister
judgment was primarily concerned with ss 39(1)
(b)
and 231 of the Constitution, two
provisions in the Constitution that regulate the impact of
international law on the Republic. Both
sections were concerned with
the State’s legal obligation in the international sphere.
Section 39(1)
(b)
provides that when interpreting the Bill of Rights, a court, tribunal
or forum must consider international law. Section 231(2)
is directed
at the Republic’s obligations under international law.
[29]
It is important to look briefly to what transpired in
Glenister
.
The applications concerned the constitutional validity of two
statutes (the two impugned laws), the National Prosecuting Authority

Amendment Act 56 of 2008 (NPAA Act) and the
South African Police
Service Amendment Act 57 of 2008
(SAPSA Act). The gravamen of the
complaint related to the disbanding of the Directorate of Special
Operations (DSO), a specialised
crime-fighting unit that was located
within the National Prosecuting Authority (NPA), and its replacement
with the Directorate
of Priority Crime Investigation (DPCI) which is
located within the South African Police Service (SAPS). It was the
effect of these
two statutes that was at the centre of the challenge
in
Glenister
.
[30]
The majority judgment stressed that the Constitution did not, in
express terms, command that
a corruption-fighting unit should be
established, but espoused that s 7(2) cast an especial duty upon the
State to create efficient
anti-corruption mechanisms.
[21]
Moseneke DCJ and Cameron J
said that ‘[i]n order to understand the content of the
constitutionally imposed requirement of
independence we have to
resort to international agreements that bind the Republic’ and
that ‘our Constitution takes
into its very heart obligations to
which the Republic, through the solemn resolution of Parliament, has
acceded, and which are
binding on the Republic in international law,
and makes them the measure of the State’s conduct in fulfilling
its obligations
in relation to the Bill of Rights’.
[22]
[31]
Moseneke DCJ and Cameron J held that the court’s
obligation to consider international law when interpreting
the Bill
of Rights was of pivotal importance, due to the direct impact of s
39(1)
(b)
.
Thus, the Constitutional Court concluded in
Glenister
that the fact that
the Republic was bound under international law to create an
anti-corruption unit, with appropriate independence,
was of the
foremost interpretive significance in determining whether the State
had fulfilled its duty as required by s 7(2).
In reaching this
conclusion the court said that ‘
the
fact that s 231(2) provides that an international agreement that
Parliament ratifies “binds the Republic” is of
prime
significance’ because 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’.
[23]
Notably the court
pointed out that ‘[i]t is possible to determine the content of
the obligation s 7(2) imposes on the State
without taking
international law into account’ but that ‘s 39(1)
(b)
makes it constitutionally obligatory that we should’.
[24]
In our view, it is thus clear
that the Constitutional Court in
Glenister
sourced the
obligations imposed on the State from two provisions of the
Constitution which made it obligatory to do so.
[32]
Thus, the true role that s 7(2) played in specific circumstances of
Glenister
,
[25]
appears from the following:
‘
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
.
’
[33]
It is so that in
Glenister
it was stated that in some
circumstances s 7(2) imposes a positive obligation on the State.
[26]
It relied on a dictum in
Carmichele v
Minister of Safety and Security and Another (Centre for Applied Legal
Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC) para 44
[27]
where the court said:
‘
Under
both the IC [Interim Constitution] 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 [Interim Constitution]
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.’
[34]
These dicta do not prescribe that s 7(2) could oblige the State to
enact legislation on a specific subject,
nor that a court may order
it to do so. They state that there may be a positive obligation on
the State ‘to provide appropriate
protection to everyone
through laws and structures designed to afford such protection’.
What the appropriate protection should
be, is for the State to
determine. This was put as follows in
Glenister
:
[28]
‘
Now
plainly there are many ways in which the State can fulfil its duty to
take positive measures to respect, protect, promote and
fulfil the
rights in the Bill of Rights. This court will not be prescriptive as
to what measures the State takes, as long as they
fall within the
range of possible conduct that a reasonable decision-maker in the
circumstances may adopt. A range of possible
measures is therefore
open to the State, all of which will accord with the duty the
Constitution imposes, so long as the measures
taken are reasonable.’
[35]
Section 7(2) is a broad general provision that must be read in the
context of the Constitution and
specifically in the context of the
carefully constructed separation of powers entrenched in the
Constitution. The principle of
separation of powers is crucial to our
democracy. The Constitutional Court has endorsed the principle of
separation of powers in
various judgments. In
Ex
Parte Chairperson of the Constitutional Assembly: In Re Certification
of the Constitution of the Republic of South Africa
[29]
it was said:
‘
The
principle of separation of powers, on the one hand, recognises the
functional independence of branches of government. On the
other hand,
the principle of checks and balances focuses on the desirability of
ensuring that the constitutional order, as a totality,
prevents the
branches of government from usurping power from one another. In
this sense it anticipates the necessary or unavoidable
intrusion of
one branch on the terrain of another. No constitutional scheme can
reflect a complete separation of powers: the scheme
is always one of
partial separation
.’
[30]
[36]
In
Doctors for Life
International
, the
Constitutional Court said:
[31]
‘
The
constitutional principle of separation of powers requires that other
branches of government refrain from interfering in parliamentary

proceedings. This principle is not simply an abstract notion; it is
reflected in the very structure of our government. The structure
of
the provisions entrusting and separating powers between the
legislative, executive and judicial branches reflects the concept
of
separation of powers. The principle “has important consequences
for the way in which and the institutions by which
power can be
exercised”. Courts must be conscious of the vital limits on
judicial authority and the Constitution's design
to leave certain
matters to other branches of government. They too must observe
the constitutional limits of their authority.
This means that the
Judiciary should not interfere in the processes of other branches of
government unless to do so is mandated
by the Constitution
.’
[37]
Further, in
Doctors
for Life International
the following was said:
[32]
‘
But
under our constitutional democracy, the Constitution is the supreme
law. It is binding on all branches of government and no less
on
Parliament. When it exercises its legislative authority, Parliament
“must act in accordance with, and within the limits
of, the
Constitution”, and the supremacy of the Constitution requires
that “the obligations imposed by it must be fulfilled”.

Courts are required by the Constitution “to ensure that all
branches of government act within the law” and fulfil their

constitutional obligation
.’
And
later:
[33]
‘
Courts
have traditionally resisted intrusions into the internal procedures
of other branches of government. They have done this
out of comity
and in particular, out of respect for the principle of separation of
powers. But at the same time they have claimed
their right to
intervene in order to prevent any violation of the Constitution. To
reconcile their judicial role to uphold the
Constitution, on the one
hand and the need to respect the other branches of government, on the
other, courts have developed a settled
practice or general rule of
jurisdiction that governs judicial intervention in the legislative
process.’
And
later still:
[34]
‘
The
primary duty of the courts in this country is to uphold the
Constitution and the law ‘’which they must apply
impartially
and without fear, favour or prejudice”. And if in
the process of performing their constitutional duty, courts intrude
into
the domain of other branches of government, that is an intrusion
mandated by the Constitution. What courts should strive to achieve
is
the appropriate balance between their role as the ultimate guardians
of the Constitution and the Rule of law including any obligation
that
Parliament is required to fulfil in respect of the passage of laws on
the one hand and the respect which they are required
to accord to
other branches of government as required by the principle of
separation of powers, on the other hand.’
[38]
Similarly, in
My
Vote Counts NPC v Speaker of the National Assembly and Others
,
[35]
s 32 of the Constitution was
directly and expressly implicated. The issue was whether Parliament
had failed to fulfil an obligation
the Constitution imposed on it in
terms of s 32 of the Constitution. Section 32 provides:
‘
(1)
Everyone has the right of access to-
(a)
any information held by the state, and
(b)
any information that is held by another person and
that is required for the exercise of or protection of any rights.
(2) National legislation must be enacted to give effect
to this right, and may provide for reasonable measures, to alleviate
the
administrative and financial burden on the State.’
[39]
As is clear from s 32, the State, in plain language, is specifically
and expressly obliged to
enact legislation contemplated in s 32(2).
The specific question raised in
My Vote
Counts NPC
was whether information on
private funding of political parties was information that was
required to exercise the right to vote.
In essence, what the
applicant required was information on the private funding of
political parties to be made available in a manner
that required
disclosure by way of legislation, as a matter of continuous course
rather than a once-off request. The State, the
applicant contended,
had failed to enact national legislation by failing to comply with
its obligations in terms of s 32 of the
Constitution. The respondents
recognised the obligation that s 32(2) imposed but contended that
Parliament had fulfilled it by
enacting the Promotion of Access to
Information Act 2 of 2000 (PAIA). The minority judgment concluded
that Parliament had failed
to fulfil its constitutional obligation to
enact the legislation in s 32(2) of the Constitution.
[40]
The majority in
My
Vote Counts
held
that PAIA was passed in compliance with s 32(2) of the Constitution,
and focused on providing information in terms of s 32(1)
of the
Constitution. It was for Parliament to make legislative choices as
long as they were rational and constitutionally compliant.
The
majority held:
[36]
‘
Despite
its protestation to the contrary, what the applicant wants is
but a thinly veiled attempt at prescribing to Parliament
to legislate
in a particular manner. By what dint of right can the applicant do
so? None, in the present circumstances. That attempt
impermissibly
trenches on Parliament's terrain;
and
that is proscribed by the doctrine of separation of powers.’
And:
[37]
‘
Also,
we have demonstrated that the other basis of distinction, which
is that the applicant is seeking relief of a special
kind, cannot
succeed for the simple reason that what the applicant is asking for
flouts the separation of powers doctrine
.’
The
majority further said:
[38]
‘
According
to the minority judgment, what South Africa must have is systematic
disclosure. It may well be that this is ideal;
who knows? But that is
not the issue. It is for Parliament to make legislative choices as
long as they are rational and otherwise
constitutionally compliant.’
[41]   Section 85 of the Constitution
circumscribes that the power (not obligation) to prepare and initiate
legislation
vests in the President and Cabinet. It provides that:
‘
(1)
The executive authority of the Republic is vested in the President.
(2)
The
President exercises the executive authority, together with the other
members of the Cabinet, by-
(a)
implementing
national legislation except where the Constitution or an Act of
Parliament provides otherwise;
(b)
developing
and implementing national policy;
(c)
co-ordinating
the functions of state departments and administrations;
(d)
preparing
and initiating legislation; and
(e)
performing
any other executive function provided for in the Constitution or in
national legislation.’
[42]
Sections 43
[39]
and 44
[40]
of the Constitution stipulate
that the legislative authority in the national sphere of government
is exclusively vested in Parliament.
In terms of s 42(1) of the
Constitution, Parliament consists of the National Assembly
[41]
and the National Council of
Provinces.
[42]
This legislative authority
confers on the National Assembly and the National Council of
Provinces the power to pass legislation.
It is the responsibility of
Parliament to make laws. The President and Cabinet are given a
discretion as to the nature and content
of the legislation that it
prepares and initiates. It must follow that the obligation to enact
legislation must be found outside
of s 7(2) of the Constitution.
[43]
We know of no authority, and we were not referred to any, where the
court directed the enactment
of legislation outside of the parameters
that we have mentioned, namely, international law and specific
constitutional obligations,
and solely under s 7(2) of the
Constitution.  In our view, for a court to order the State to
enact legislation, on the basis
of s 7(2) alone, in order to realise
fundamental rights would be contrary to the doctrine of separation of
powers, in light of
the express provisions of ss 43, 44, and 85 of
the Constitution. As we have said, these sections vest the power to
initiate legislation
in the President and Cabinet, and to adopt
legislation in Parliament. This is not to say that this Court is
insulating itself from
constitutional responsibility. It is for
Parliament to make legislative choices provided that they are
rational and constitutionally
compliant. And if they are not, the
court must act in terms of s 172 of the Constitution.
[43]
[44]
As stated above, s 85(2) invests the
executive authority with the power to prepare and initiate
legislation.
Sections 43 and 44 make it clear that the National
Legislative authority is exclusively in the hands of Parliament. In
our view,
therefore, para 1 of the order of the high court should be
set aside and replaced with the declaratory orders that the WLC had
sought in the alternative, as encapsulated in the order set out
below.
Section 15 of the Constitution
[45]      Section 15 provides
as follows:
‘
Freedom
of religion, belief and opinion
15. (1) Everyone has the right to freedom of conscience,
religion, thought, belief and opinion.
(2) Religious observances may be conducted at state or
state-aided institutions, provided that-
(a)
those observances follow rules made by the
appropriate public authorities;
(b)
they are conducted on an equitable basis; and
(c)
attendance at them is free and voluntary.
(3) (
a
) This section does not prevent legislation
recognising-
(i) marriages concluded under any tradition, or a system
of religious, personal or family law; or
(ii) systems of personal and family law under any
tradition, or adhered to by persons professing a particular religion.
(
b
)
Recognition in terms of paragraph
(a)
must be consistent with this section and the other provisions of the
Constitution.’
[46]
The Constitutional Court observed as follows in
Minister
of Home Affairs and Another v Fourie and Another
:
[44]
‘
The
special provisions of
s 15(3) are anchored in a section of the Constitution dedicated to
protecting freedom of religion, belief
and opinion. In this sense
they acknowledge the right to be different in terms of the principles
governing family life. The provision
is manifestly designed to allow
Parliament to adopt legislation, if it so wishes, recognising,
say, African traditional marriages,
or Islamic or Hindu marriages, as
part of the law of the land, different in character from, but equal
in status to general marriage
law. Furthermore, subject to the
important qualification of being consistent with the Constitution,
such legislation could allow for
a degree of legal pluralism
under which particular consequences of such marriages would be
accepted as part of the law of the land.
The section “does not
prevent” legislation recognising marriages or systems of family
or personal law established by
religion or tradition. It is not
peremptory or even directive, but permissive. It certainly does not
give automatic recognition
to systems of personal or family law
not accorded legal status by the common law, customary law or
statute.’
(Our emphasis.)
[47]
Although the high court included a reference to s 15 of the
Constitution in para 1 of its order, it did not
make a finding that
any provisions of the Marriage Act or the
Divorce Act are
inconsistent with the rights under
s 15.
This was also not the
argument of the WLC. The crux of its argument, quite correctly, was
that the permissive powers in
s 15(3)
do not prevent the legislation
that it proposes. In the circumstances the aforesaid declarations of
unconstitutionality should
not contain a reference to
s 15.
Retrospectivity
[48]
As we have said, the WLC requested that this Court’s order,
granting interim relief, be backdated
to April 1994 and apply to
Muslim marriages that had been dissolved under
Sharia
law as far back as 26 years ago. This is a far-reaching proposal that
goes a long way beyond what it had sought in the high court
and in
the cross-appeal. This is a complex subject and the proposed
retrospectivity may have profound unforeseen circumstances.
Section
172(1) of the Constitution empowers this Court, upon a declaration of
invalidity to make any order that is just and equitable.
But there is
a fundamental reason why the request should not be acceded to. It is
the prerogative of Parliament to determine if
and to what extent the
legislation that it enacts regarding Muslim marriages, should apply
retrospectively. The legislature is
best placed to deal with the
issue of retrospectivity. Only when the court makes a final
declaration of constitutional invalidity,
without suspension thereof,
should it consider the consequences of the declaration and whether
its retrospective effect should
be ameliorated on just and equitable
grounds. In the result we find that the interim measure proposed by
the appellants is appropriate,
fair and just.
Conclusion
[49]
What this Court has done is craft an effective and comprehensive
order in an endeavour to cure
the hardship suffered by parties to
Muslim marriages, especially vulnerable women and children, that will
operate until appropriate
legislation is put in place. In the
circumstances, for the reasons advanced, the orders granted by the
high court must be replaced
and the interim relief in para 5 of the
high court order cannot stand.
[50]
The importance of recognising Muslim marriages in our constitutional
democracy cannot be gainsaid.
In South Africa, Muslim women and
children are a vulnerable group in a pluralistic society such as
ours. The non-recognition of
Muslim marriages is a travesty and a
violation of the constitutional rights of women and children in
particular, including, their
right to dignity, to be free from unfair
discrimination, their right to equality and to access to court.
Appropriate recognition
and regulation of Muslim marriages will
afford protection and bring an end to the systematic and pervasive
unfair discrimination,
stigmatisation and marginalisation experienced
by parties to Muslim marriages including, the most vulnerable, women
and children.
The following words of Moseneke J in
Daniels
[45]
resonate:
‘
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.’
[51]      In the result the
following order is made:
1
The appeal and the cross-appeals succeed in part and the order of the
court
a quo is set aside and replaced with the following order:
‘
1.1
The Marriage Act 25 of 1961 (the Marriage Act) and
the Divorce Act 70 of 1979 (the
Divorce Act) are
declared to be
inconsistent with ss 9, 10, 28 and 34 of the Constitution of the
Republic of South Africa, 1996, in that they fail
to recognise
marriages solemnised in accordance with
Sharia
law (Muslim marriages) as valid marriages (which have not been
registered as civil marriages) as being valid for all purposes in

South Africa, and to regulate the consequences of such recognition.
1.2       It is declared that
s
6
of the
Divorce Act is
inconsistent with ss 9, 10, 28(2) and 34 of
the Constitution insofar as it fails to provide for mechanisms to
safeguard the welfare
of minor or dependent children of Muslim
marriages at the time of dissolution of the Muslim marriage in the
same or similar manner
as it provides mechanisms to safeguard the
welfare of minor or dependent children of other marriages that are
being dissolved.
1.3       It is declared that
s
7(3)
of the
Divorce Act is
inconsistent with ss 9, 10, and 34 of the
Constitution insofar as it fails to provide for the redistribution of
assets, on the
dissolution of a Muslim marriage, when such
redistribution would be just.
1.4       It is declared that
s
9(1)
of the
Divorce Act is
inconsistent with ss 9, 10 and 34 of the
Constitution insofar as it fails to make provision for the forfeiture
of the patrimonial
benefits of a Muslim marriage at the time of its
dissolution in the same or similar terms as it does in respect of
other marriages.
1.5       The declarations of
constitutional invalidity are referred to the Constitutional Court
for confirmation.
1.6       The common law
definition of marriage is declared to be inconsistent with the
Constitution and
invalid to the extent that it excludes Muslim
marriages.
1.7       The declarations of
invalidity in paras 1.1 to 1.4 above are suspended for a period of 24
months
to enable the President and Cabinet, together with Parliament
to remedy the foregoing defects by either amending existing
legislation,
or passing new legislation within 24 months, in order to
ensure the recognition of Muslim marriages as valid marriages for all
purposes in South Africa and to regulate the consequences arising
from such recognition.
1.8       Pending the coming
into force of legislation or amendments to existing legislation
referred to
in para 1.7, it is declared that a union, validly
concluded as a marriage in terms of
Sharia
law and subsisting
at the date of this order, or, which has been terminated in terms of
Sharia
law, but in respect of which legal proceedings have
been instituted and which proceedings have not been finally
determined as at
the date of this order, may be dissolved in
accordance with the
Divorce Act as
follows:
(a)       all the provisions of
the
Divorce Act shall
be applicable save that all Muslim marriages
shall be treated as if they are out of community of property, except
where there are
agreements to the contrary, and
(b)       the provisions of
s
7(3)
of
Divorce Act shall
apply to such a union regardless of when it
was concluded.
(c)        In the case of
a husband who is a spouse in more than one Muslim marriage, the court
shall:
(i)         take
into consideration all relevant factors including any contract or
agreement
and must make any equitable order that it deems just, and;
(ii)        may order that
any person who in the court’s opinion has a sufficient interest
in
the matter be joined in the proceedings.
1.9       It is declared that,
from the date of this order,
s 12(2)
of the Children’s Act 38
of 2005 applies to Muslim marriages concluded after the date of this
order.
1.10    For the purpose of applying paragraph
1.9 above, the provisions of
ss 3(1)
(a)
,
3
(3)
(a)
and
3
(3)
(b)
,
3
(4)
(a)
and
3
(4)
(b)
, and
3
(5) of the
Recognition of Customary Marriages Act 120 of 1998
shall apply,
mutatis mutandis, to Muslim marriages.
1.11    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.
1.12    The Department of Home Affairs and the
Department of Justice & Constitutional Development shall publish
a
summary of the orders in paragraphs 1.1 to 1.9 above widely in
newspapers and on radio stations, whatever is feasible, without
unreasonable delay.’
2.   In the matter of
Faro v The Minister
of Justice and Constitutional Development
and Others
(Case
no 4466/2013), no order is made in relation to the cross-appeal. It
is recorded that:
2.1       In recognition of the
fact that there currently are no policies and procedures in place for
purposes
of determining disputes arising in relation to the validity
of Muslim marriages and the validity of divorces granted by any
person
or association according to the tenets of
Sharia
law
(Muslim divorces) in circumstances where persons purport to be
spouses of deceased persons in accordance with the tenets of
Sharia
law  and seek to claim benefits from a deceased estate in terms
of the provisions of the
Intestate Succession Act 81 of 1987
and/or
the Maintenance of Surviving Spouses Act 27 of 1990, the Minister of
Justice undertakes within 18 months of the granting
of this order to
put in place the necessary mechanisms to ensure that there is a
procedure by which the Master may resolve disputes
arising in
relation to the validity of Muslim marriages and Muslim divorces, in
all cases where a dispute arises as to whether
or not the persons
purport to be married in accordance with the tenets of
Sharia
law to the deceased persons and seek to claim benefits from a
deceased estate in terms of the provisions of the
Intestate
Succession Act 81 of 1987
and/or the Maintenance of Surviving Spouses
Act 27 of 1990;
2.2       In the event that the
Minister of Justice fails to comply with the undertaking in para 2.1,
the
appellants may enrol the appeal in this Court on the same papers,
duly supplemented, in order to seek further relief.
3.         The
Appellants (the President and the Minister of Justice) shall in
respect of the
matter under case no 13877/2015 (
Esau
) pay
Ruwayda Esau’s costs in respect of claim A (including the costs
of the appeal and cross-appeal) such costs to include
the costs of
three counsel to the extent of their employment.
4.          In
respect of the matters under Case nos 22481/2014 and 4466/2013:
4.1       Paragraph 8 of the
order of the Western Cape Division of the High Court shall stand, in
terms
whereof 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 the costs of three
counsel to the extent of their employment.
4.2
The President and the Minister of
Justice shall pay the Women’s Legal Centre’s costs
of the
appeal and the cross-appeal, such costs to include the costs of three
counsel to the extent of their employment.
­­­
__________________________
H K SALDULKER
JUDGE
OF APPEAL
C
H G VAN DER MERWE
JUDGE
OF APPEAL
Appearances:
President
of the RSA & Another v Women’s Legal Centre Trust and
Others
For
appellants:

A A Gabriel SC, with her K Pillay SC and
S
Humphrey
Instructed
by:                                   State

Attorney, Cape Town
State
Attorney, Bloemfontein
For
1
st
respondent:

N Bawa, with her M O’ Sullivan and J L Williams
Instructed
by:                                   WLC,

Cape Town
Maduba
Attorneys, Bloemfontein
For
5
th
respondent:

R Willis, with him A B Omar
Instructed
by:                                   Z

Omar Attorneys, Johannesburg
c/o
C & A Friedlander, Cape Town
For
6
th
respondent:

M S Omar & Associates
Instructed
by:                                   M

S Omar Attorneys, Durban
Webbers
Attorneys, Bloemfontein
For
7
th
respondent:

R Moultrie, with him S Kazee
Instructed
by:                                   Bowman

Gilfillan Inc, Sandton
c/o
Bowman Gilfillan Inc, Cape Town
Matsepes
Inc., Bloemfontein
For
1
st
amicus curiae
:
M
S Omar
Instructed
by:                                   M

S Omar & Associates, Durban
Webbers
Attorneys, Bloemfontein
For
6
th
amicus curiae
:
M
Bishop, with him A Christians and
C
McConnachie
Instructed
by:

Legal Resources Centre, Cape Town
Legal Aid, Bloemfontein
Minister
of Justice and Constitutional Development v Faro and Others
For
appellant:

A A Gabriel SC, with her K Pillay SC and
S Humphrey
Instructed
by:

State Attorney, Cape Town
State Attorney, Bloemfontein
For
1
st
respondent:

N Bawa, with her M O’ Sullivan and J L Williams
Instructed
by:

WLC, Cape Town
Maduba Attorneys, Bloemfontein
Minister
of Justice and Constitutional Development v Esau and Others
For
appellant:

A A Gabriel SC, with her K Pillay SC and
S Humphrey
Instructed
by:

State Attorney, Cape Town
State
Attorney, Bloemfontein
For
1
st
respondent:

J de Waal SC, with him A Newton, P Olivier and
B
Wharton
N
Rawoot Attorney at Law, Cape Town
E G Cooper Majiedt Inc., Bloemfontein
[1]
Section 1
(a)
of the Constitution of the Republic of South Africa 108 of 1996.
[2]
Ismail v Ismail
1983
(1) SA 1006 (A).
[3]
Kader v Kader
1972
(3) SA 203 (RA).
[4]
Bronn v Fritz Bronn’s
Executors and Others
(1860)
3 Searle 313
;
Seedat’s
Executors v The Master (Natal)
1917
AD 302.
[5]
Ryland v Edros
1997
(2) SA 690
(C);
Amod
v Multilateral Motor Vehicle Accidents Fund (Commission for Gender
Equality Intervening)
1999
(4) SA 1319
(SCA);
Daniels
v Campbell
NO
and
Others
[2004] ZACC 14
;
2004
(5) SA 331
(CC);
2004
(7) BCLR 735(CC)
paras 74-75;
Khan
v Khan
2005 (2) SA
272 (T).
[6]
Daniels v Campbell NO and
Others
[2004] ZACC 14
;
2004 (5) SA
331
(CC) paras 74-75.
[7]
Hassam v Jacobs NO and
Others
2009
(5) SA 572
(CC)
;
[2009] ZACC 19
para 25.
[8]
Women’s Legal Centre
Trust v President of the Republic of South Africa and Others
2009
(6) SA 94 (CC); [2009] ZACC 20.
[9]
Hassam
fn
7 paras 30-32.
[10]
Moosa NO and Others v
Minister of Justice and Correctional Services and Others
[2018]
ZACC 19
;
2018 (5) SA 13
(CC) para 16.
[11]
Section 24 provides :
‘
24
Marriage of minors:
(1) No marriage officer shall solemnize a marriage
between parties of whom one or both are minors unless the consent to
the party
or parties which is legally required for the purpose of
contracting the marriage has been granted and furnished to him in
writing.
(2) For the purposes of subsection (1) a minor does not
include a person who is under the age of twenty-one years and
previously
contracted a valid marriage which has been dissolved by
death or divorce.’
[12]
Section 12 provides:
‘
12
Social, cultural and religious practices:
(1) . . .
(2)
A child-
(a)
below the minimum age set by law for a valid marriage may not be
given out in marriage or engagement.’
[13]
Article 16(1) of CEDAW
requires State parties to: ‘
take
all appropriate 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.’
[14]
Article 23(4) of the ICCPR
provide 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.’
[15]
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.’
[16]
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.’
[17]
Women's
Legal Centre Trust v President of the Republic of South Africa and
Others, Faro v Bingham
NO
and Others, Esau v Esau and Others
[2018]
4 All SA 551 (WCC); 2018 (6) SA 598 (WCC) para 178
.
[18]
Glenister v President of
the Republic of South Africa and Others
2011 (3) SA 347 (CC); [2011] ZACC 6.
[19]
Glenister
fn 18 para 189.
[20]
Glenister
fn 18 para 190.
[21]
Glenister
fn 18 para 175.
[22]
Glenister
fn
18 para 178.
[23]
Glenister
fn
18 para 194.
[24]
Glenister
fn
18 para 201.
[25]
Glenister
fn
18 para 194.
[26]
Glenister
fn
18 para 189.
[27]
Carmichele v Minister of
Safety and Security and Another (Centre for Applied Legal Studies
Intervening)
[2001] ZACC 22
;
2001
(4) SA 938
(CC) para 44.
[28]
Glenister
fn
18 para
191.
[29]
Ex Parte Chairperson of
the Constitutional Assembly: In Re Certification of the Constitution
of the Republic of South Africa
1996 (4) SA 744 (CC).
[30]
Ex Parte Chairperson
fn
29 para 109. See also
Glenister
v President of the Republic of South Africa and Others
[2008]
ZACC 19
;
2009 (1) SA 287
(CC)
para 35.
[31]
Doctors for Life
International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006
(6) SA 416
(CC) para 37.
[32]
Doctors for Life
fn 31 para 38.
[33]
Doctors for Life
fn 31 para 68.
[34]
Doctors for Life
fn 31 para 70.
[35]
My Vote Counts NPC v
Speaker of the National Assembly and Others
2016 (1) SA 132 (CC); [2015] ZACC 31.
[36]
My Vote Counts NPC
fn 35 para 156.
[37]
My Vote Counts NPC
fn 35 para 172.
[38]
My Vote Counts NPC
fn 35 para 155.
[39]
Section 43 provides:
‘
Legislative
authority of the Republic
In the Republic, the legislative authority-
(a)
of
the national sphere of government is vested in Parliament, as set
out in section 44;
(b)
of
the provincial sphere of government is vested in the provincial
legislatures, as set out in section 104;
and
(c)
of
the local sphere of government is vested in the Municipal Councils,
as set out in section 156.’
[40]
Section 44 provides:
‘
National
legislative authority
(1)
The
national legislative authority as vested in Parliament-
(a)
confers
on the National Assembly the power-
(i)
to
amend the Constitution;
(ii)
to
pass legislation with regard to any matter, including a matter
within a functional area listed in Schedule
4, but excluding,
subject to subsection (2), a matter within a functional area listed
in Schedule 5; and
(iii)   to
assign any of its legislative powers, except the power to amend the
Constitution, to any legislative
body in another sphere of
government; and
(b)
confers
on the National Council of Provinces the power-
(i)   to
participate in amending the Constitution in accordance with section
74;
(ii)   to
pass, in accordance with section 76, legislation with regard to any
matter within a functional area listed
in Schedule 4 and any other
matter required by the Constitution to be passed in accordance with
section 76; and
(iii)   to
consider, in accordance with section 75, any other legislation
passed by the National Assembly.
(2)
Parliament
may intervene, by passing legislation in accordance with section 76
(1), with regard to a matter falling within
a functional area listed
in Schedule 5, when it is necessary-
(a)
to
maintain national security;
(b)
to
maintain economic unity;
(c)
to
maintain essential national standards;
(d)
to
establish minimum standards required for the rendering of services;
or
(e)
to
prevent unreasonable action taken by a province which is prejudicial
to the interests of another province
or to the country as a whole.
(3) Legislation with regard to a matter that is
reasonably necessary for, or incidental to, the effective exercise
of a power
concerning any matter listed in Schedule 4 is, for all
purposes, legislation with regard to a matter listed in Schedule 4.
(4) When exercising its legislative authority;
Parliament is bound only by the Constitution, and must act in
accordance with,
and within the limits of, the Constitution.’
[41]
Section 55(1) of the
Constitution provides:
‘
55
Powers of National Assembly
(1) In exercising its legislative power, the National
Assembly may-
(a)
consider,
pass, amend or reject any legislation before the Assembly; and
(b)
initiate
or prepare legislation, except money Bills.
(2)
The
National Assembly must provide for mechanisms-
(a)
to
ensure that all executive organs of state in the national sphere of
government are accountable to it; and
(b)
to
maintain oversight of-
(i)   the
exercise of national executive authority, including the
implementation of legislation; and
(ii)   any
organ of state.’
[42]
Section 68 of the
Constitution provides:
‘
Powers
of National Council
In exercising its legislative power, the National
Council of Provinces may-
(a)
consider,
pass, amend, propose amendments to or reject any legislation before
the Council, in accordance with
this Chapter; and
(b)
initiate
or prepare legislation falling within a functional area listed in
Schedule 4 or other legislation referred
to in section 76 (3), but
may not initiate or prepare money.’
[43]
Section 172(1) provides:
‘
(1)
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.’
[44]
Minister
of Home Affairs and Another v Fourie and Another
(Doctors
for Life International and Others, Amici curiae); Lesbian and
Gay Equality Project and Others v Minister of Home
Affairs and
Others
[2005] ZACC 19
;
2006
(1) SA 524
(CC) para 108.
[45]
Daniels
fn
6 para 108.