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[2009] ZACC 20
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Women's Legal Trust v President of the Republic of South Africa and Others (CCT13/09) [2009] ZACC 20; 2009 (6) SA 94 (CC) (22 July 2009)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 13/09
[2009] ZACC 20
WOMEN’S
LEGAL CENTRE TRUST
Applicant
versus
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA First Respondent
MINISTER
FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Second
Respondent
MINISTER
FOR HOME AFFAIRS Third Respondent
SPEAKER
OF THE NATIONAL ASSEMBLY Fourth Respondent
CHAIRPERSON
OF THE NATIONAL COUNCIL
OF
PROVINCES Fifth Respondent
together
with
UNITED
ULAMA COUNCIL OF SOUTH AFRICA First Amicus Curiae
WOMEN’S
CULTURAL GROUP Second Amicus Curiae
ASSOCIATION
OF MUSLIM LAWYERS
AND
ACCOUNTANTS Third Amicus Curiae
ISLAMIC
UNITY CONVENTION Fourth Amicus Curiae
COALITION
OF MUSLIM WOMEN Fifth Amicus Curiae
And in
the application for leave to intervene by:
LAJNATUN
NISAA-IL MUSLIMAAT
(ASSOCIATION
OF MUSLIM WOMEN OF SOUTH AFRICA)
Heard
on : 20 May 2009
Decided
on : 22 July 2009
JUDGMENT
CAMERON
J:
Introduction
This
is an application for direct access to this Court. The applicant
seeks an order declaring that the President and Parliament
have
failed to fulfil obligations the Constitution imposes on them. It
asks this Court to direct them to fulfil those obligations
within
18 months by “preparing, initiating, enacting and
implementing an Act of Parliament providing for the recognition
of
all Muslim marriages as valid marriages for all purposes in South
Africa and regulating the consequences of such recognition.”
1
In
coming directly to this Court, the applicant asserts that the
failure on which it relies falls within the Court’s exclusive
jurisdiction under section 167(4)(e) of the Constitution.
2
It asserts alternatively that it should in any event be granted
direct access
under section 167(6)(a)
.
3
The Chief Justice on 25 March 2009 issued directions inviting
preliminary argument to test these assertions. The directions
set
the matter down for hearing on two issues only:
Are
the obligations contended for by the applicant obligations within
the meaning of section 167(4)(e) of the Constitution?
If
not, is it appropriate in all the circumstances for this Court to
be the court of first and last instance
in the
application for direct access under section 167(6)(a)?
At
the hearing of the matter, argument was confined to these
questions. All parties approached the first question as raising
only a jurisdictional question, that is, as inquiring into the
competence of this Court and this Court alone to consider and
grant
the relief sought at this stage (and not asking whether the relief
should be granted). This judgment therefore focuses
narrowly on
the jurisdiction question, and says nothing about the merits of the
applicant’s claims. The judgment is thus
about jurisdiction
only and does not deal with any part of the substantive relief
claimed. It considers only whether the application
in its current
form is properly or appropriately before the Court. The answer
depends on whether the constitutional obligation
the applicant
invokes falls within the exclusive jurisdiction of this Court; or,
if it does not, on whether the applicant has
made out a good case
for direct access.
It
follows that this judgment does not consider whether Parliament may
be under an obligation to enact legislation to recognise
Muslim
marriages. Nor does it consider whether such legislation is
required by, or if enacted would be consistent with the equality,
4
dignity,
5
freedom of religion
6
or other provisions of the Bill of Rights.
7
Parties
The
applicant is the Women’s Legal Centre Trust (the Women’s
Legal Centre), an organisation established to advance
women’s
rights by conducting constitutional litigation and advocacy on
gender issues. The Women’s Legal Centre brings
the
application in the public interest in terms of section 38(d) of the
Constitution.
8
It cites the President as first respondent and the Minister for
Justice and Constitutional Development (the Minister) as second
respondent. The third respondent is the Minister for Home Affairs,
with the Speaker of the National Assembly (the Speaker) and
the
Chairperson of the National Council of Provinces (the Chairperson)
cited as the fourth and fifth respondents. The Lajnatun
Nisaa-il
Muslimaat (Association of Muslim Women of South Africa) (the
Association) applied for leave to intervene as a respondent.
The
Chief Justice directed that its application would be considered at
or after argument on the jurisdictional questions. In
view of the
conclusion this judgment reaches, it is not necessary to consider
the Association’s application for joinder.
The
Speaker and the Chairperson contended that they should not have
been joined as respondents to the application since the
responsibility to initiate legislation lay with the executive, and
not with Parliament. At the hearing of the matter, however,
their
counsel abandoned the argument based on misjoinder, contending
instead that the application was premature and that direct
access
was inappropriate.
Five
organisations have, with the consent of the parties, been admitted
as amici. Three of these organisations, the United Ulama
Council
of South Africa, the Coalition of Muslim Women and the Association
of Muslim Lawyers and Accountants, supported the stance
of the
Women’s Legal Centre on the merits of its application as well
as on the question of direct access. The Women’s
Cultural
Group and the Islamic Unity Convention opposed the application.
The Chief Justice issued directions allowing the amici
as well as
the intervening applicant to make submissions on the preliminary
questions.
Background
In
July 2003 the South African Law Reform Commission submitted a
report entitled “Islamic Marriages and Related Matters
(Project 59)” to the Minister. The report included a draft
Muslim Marriages Bill (the Bill). This was produced after an
extensive notice and comment process that included meetings and
workshops with various organisations representing sections of
the
Muslim community. The Bill includes detailed provisions
recognising Muslim marriages as valid and regulating their
consequences.
However, it proved controversial, and progress on
its passage appears to have stalled.
The
Women’s Legal Centre submits that the Constitution expressly
permits legal recognition of a system of personal and family
law
adhered to by people of a particular religion, but that the
executive and the legislature have failed to pass legislation
recognising and regulating marriages concluded in terms of Islamic
law. Marriages may be solemnised under the Marriage Act 25
of 1961
where the imam is registered as a marriage officer. But marriages
solemnised by imams who are not marriage officers
are not
recognised as marriages. The Women’s Legal Centre complains
that the Constitution obliges the President and Parliament
to
prepare, initiate, and enact the legislation envisaged – but
that they have taken no meaningful steps to pass such legislation
since July 2003. It says their failure to do so breaches, amongst
others, the right to equality,
9
the right to dignity,
10
the right to freedom of conscience, religion, thought, belief and
opinion,
11
the right to participate in the cultural life of one’s
choice
12
and the right to enjoy and practise religion.
13
An
affidavit filed on behalf of the President, the Minister and the
Minister for Home Affairs contested the merits of the Women’s
Legal Centre’s assertions, and disputed its entitlement to
relief. These respondents contended that the application sought
“the compression of a complex and necessary process of public
debate, government reflection, and legislative enactment”
and
urged that it be dismissed.
Section 167(4)(e)
exclusive jurisdiction: the meaning of “Parliament or the
President has failed to fulfil a constitutional
obligation”
This
Court has previously held that the words “fulfil a
constitutional obligation” in section 167(4)(e) must be given
a narrow meaning.
14
This is because they are part of a broader distribution of
jurisdictional competence in the Constitution. If the words
pertained
to all the President’s constitutional duties, the
section would run right across section 172(2)(a), which gives other
courts
jurisdiction over “conduct of the President”.
Like reasoning applies to obligations the Constitution imposes on
Parliament. Section 172(2)(a) grants other courts jurisdiction
over the validity of Acts of Parliament (albeit subject to
confirmation
by this Court).
15
If all this were subsumed within this Court’s exclusive
power to pronounce on whether Parliament has failed to fulfil
“a
constitutional obligation”, there would be nothing left for
section 172(2)(a), and this would make no sense.
The
two provisions must thus be interpreted in tandem. On the one
hand, the phrase “failed to fulfil a constitutional
obligation” in section 167(4)(e) must be narrowly construed.
The corollary is that section 172(2)(a), which gives other
courts
competence to scrutinise the constitutionality of presidential and
parliamentary acts, must be widely interpreted. This
entails
recognising a broad category of presidential and parliamentary acts
or omissions that are subject to the courts’
review, but not
on the ground that they constitute a failure “to fulfil a
constitutional obligation.”
The
practical implications of this approach can be seen in decisions so
far:
This Court has held that the High Court has jurisdiction to
scrutinise and review the conduct of the President
in
appointing a commission of enquiry under section 84(2)(f) of
the Constitution.
16
The Supreme Court of Appeal has held that it and the High
Courts are precluded from hearing a complaint that a
statute
is invalid on the ground that the National Assembly failed
to “facilitate public involvement”
in its
legislative processes under section 59 of the Constitution.
17
This Court, endorsing the decision of the Supreme Court of
Appeal, has held that it alone has jurisdiction to determine
whether Parliament has fulfilled its obligation to
facilitate public involvement in passing legislation.
18
Section
167(4)(e) must be read in the setting of the provision as a whole,
which determines the powers of this Court, and of subsection
(4)
specifically, which allocates it exclusive powers. The unifying
theme of the Constitution’s allocation of jurisdictional
competence is that areas of intense political contention are
reserved for the exclusive jurisdiction of this Court. Thus
subsection
(4) empowers this Court, and this Court alone, to (a)
determine the status, powers and functions of disputant organs of
state;
(b) scrutinise bills in defined circumstances; (c) hear a
challenge by legislators to newly-assented provincial or national
legislation;
(d) vet amendments to the Constitution itself; and (f)
certify provincial constitutions.
These
exclusive competencies draw on the Court’s political
legitimacy. They reflect its special status as guardian of the
Constitution, with exclusively constitutional functions
19
and a specially-determined composition.
20
Any exercise of the judicial function may cause tension with the
other arms of government and trigger political contention.
Hence
the mere fact that a matter is or may become politically fraught
does not of itself mean that only this Court has jurisdiction
to
deal with it. More is needed. Dispositive indications may lie in
the nature of the obligation, whether its content can be
clearly
ascertained, whether it is stated unambiguously in the
Constitution, how its content is determined, and whether it is
capacity-defining or power-conferring.
21
Section
167(4)(e) itself contains a significant pointer: its agent-specific
focus. The provision mentions “Parliament”
and “the
President”, and them alone. This Court has recently observed
that the constitutional duties in the provision
are “pointedly
reserved” for the actors in question.
22
The wording suggests that the exclusive jurisdiction
relates to obligations resting on these agents only, in
contradistinction
to constitutional duties they may bear together
with other agents. And agent-specificity runs counter to the scope
and substance
of the application. Although focusing the relief it
seeks on the principal parties it has cited, namely the President
and the
chief office-bearers of Parliament, the Women’s Legal
Centre cannot locate its claims inside this Court’s exclusive
jurisdiction by focusing only on the agents the section mentions.
The substance of the obligation the Women’s Legal Centre
asks
this Court to enforce is to enact and implement legislation. It
sources that obligation in various provisions of the Bill
of Rights
including the right to equality and to dignity, but particularly
section 7(2) which provides that “[t]he state
must respect,
protect, promote and fulfil the rights in the Bill of Rights.”
It
is significant that the Constitution imposes the obligation on “the
state” to respect, protect, promote and fulfil
the rights in
the Bill of Rights. The focus on “the state” is
sharpened by the terms of section 8(1) of the Constitution.
Under
that provision, the Bill of Rights “binds the legislature,
the executive, the judiciary and all organs of state.”
This
indicates that, apart from any other parties to whom the Bill of
Rights applies, it is “the state” that is
primarily
burdened with the duty to secure fulfilment of rights. Thus the
Constitution requires “the state” to take
reasonable
legislative and other measures within its resources to promote
access to land,
23
to adequate housing,
24
and to healthcare services, sufficient food and water and social
security.
25
The
Constitution nowhere defines “the state”. It provides
that government “is constituted as national, provincial,
and
local spheres of government”
26
and defines “organ of state” as meaning—
“
(a) any department of
state or administration in the national, provincial or local sphere
of government; or
(b) any other functionary or
institution—
(i) exercising a power or
performing a function in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power
or performing a public function in terms of any legislation,
but does not include a court or
judicial officer”.
27
These
provisions suggest that “the state” includes all those
actors who derive their authority from the Constitution,
including
Parliament, government at national, provincial and local levels,
state institutions supporting constitutional democracy
created by
Chapter 9 of the Constitution,
28
“state departments and administrations”
29
as well as bodies created by statute.
By
contrast with this broad assemblage of duty-bearing organs and
institutions, section 167(4)(e) is precise in delineating the
actors on whom it imposes obligations. They are the President and
Parliament. “The state” is not included.
Constitutional
duties the state and its organs must perform
collaboratively or jointly do not fall within its purview. The
provision envisages
only constitutional obligations imposed
specifically and exclusively on the President or Parliament, and on
them alone. It does
not embrace the President when he or she acts
as part of the national executive,
30
nor Parliament when it is required to act not alone but as part of
other constituent elements of the state. Were it to be otherwise,
it would undermine the jurisdiction of the High Court and the
Supreme Court of Appeal envisaged in section 172(2)(a).
This
analysis has radical implications for the applicant’s case in
the form in which it has been brought. For the obligation
to enact
legislation to fulfil the rights in the Bill of Rights falls upon
the national executive, organs of state, Chapter 9
institutions,
Parliament and the President. The obligation does not fall on the
President and Parliament alone.
Counsel
for the Women’s Legal Centre rightly conceded this. But this
concession is fatal to the proceedings in the form
they have been
brought. This is because the obligation the applicant invokes –
the duty to prepare, enact and implement
legislation in fulfilment
of the Bill of Rights – cannot be distinguished from other
obligations arising from the Bill
of Rights, including securing the
right to vote and the right to the progressive realisation of
socioeconomic entitlements.
Over these obligations other courts
patently have jurisdiction. By contrast, the obligation that was
at issue in
Doctors for Life
,
31
namely, the obligation to facilitate public involvement in its
legislative processes, fell pointedly and solely upon Parliament.
32
The
fact that the obligation on which the Women’s Legal Centre
relies may encompass the President and Parliament amongst
other
state actors (a matter we do not decide now) is not sufficient to
bring it within the exclusive jurisdiction of this Court.
It must
fall on the President and Parliament alone. Resisting the
applicant’s attempt to engage the Court through section
167(4)(e), the respondents pointed out correctly that in terms of
section 85 of the Constitution,
33
the President exercises executive authority in collaboration with
other members of the national executive. The responsibility
for
preparing and initiating legislation falls on the national
executive as a whole, and not exclusively on the President acting
as Head of State.
In
trying to save the proceedings in their present form, the Women’s
Legal Centre and those organisations who supported
its stance took
recourse to statements this Court made in
Doctors for Life
.
34
The Women’s Legal Centre submitted that, on the respondents’
own account, the adjudication of the present dispute
involved
questions that relate to sensitive areas of separation of powers
and would require a decision on a crucial political
question. It
would therefore fall within section 167(4)(e) and this Court’s
exclusive jurisdiction. But, as indicated
earlier, all exercise of
judicial power in some way affects the separation of powers and may
involve the judicial determination
of questions with political
overtones. That is not enough for this Court’s exclusive
competency to be engaged. The obligations
invoked must, in
addition, entail an agent-specific focus on the President and
Parliament alone. That is not the case here.
It
follows that since the application was directed solely to this
Court and sought to engage its exclusive jurisdiction, by-passing
other courts with constitutional jurisdiction, it was incorrectly
conceived.
Direct
access
The
Women’s Legal Centre submitted in the alternative that it was
nonetheless in the interests of justice for this Court
to hear and
determine the application as a court of first and final instance.
It urged that it seeks enactment and enforcement
of urgent and
important legislation, and that the Court should provide certainty
about the problems arising from non-recognition
of Muslim
marriages. It argued that the relief sought does not involve the
development of the common law (which would normally
require the
attention of other courts). In any event, it submitted, this Court
has the benefit of past pronouncements that other
courts have made
on the injurious effects of non-recognition.
35
The Women’s Legal Centre also contended that parties to and
children of Muslim marriages would suffer from piecemeal
adjudication of the issues and that many of the affected parties do
not have legal advice or the resources to litigate through
other
courts.
However,
the power to grant litigants direct access outside the Court’s
exclusive competence is one this Court rarely exercises,
and with
good reason. It is loath to be a court of first and last instance,
thereby depriving all parties to a dispute of a
right of appeal.
It is also loath to deprive itself of the benefit of other courts’
insights.
36
In
addition, a multi-stage litigation process has the advantage of
isolating and clarifying issues as well as bringing to the
fore the
evidence that is most pertinent to them. This is undeniably a case
in which that process would be beneficial not only
to the litigants
but also for the Court. The application elicited an intense
response from a wide range of organisations concerned
with the
position of women in the Muslim community, the application of
Islamic law and the interests of the Muslim community
as a whole.
Five such organisations secured amicus status, while an application
by a further organisation to intervene was held
in abeyance pending
determination of the preliminary issues. It is clear from these
applications that not only the legal issues,
but also the factual
issues, are much in dispute. They may require the resolution of
conflicting expert and other evidence.
It is not appropriate for
this Court to attempt that task as a court of first and final
instance.
The
ventilation of the difficult issues the application involves in the
High Court, followed possibly by a considered judgment
from the
Supreme Court of Appeal, will ensure that the views of these
organisations, and the evidence that may be germane to
their
contentions, will be properly considered.
The
application for direct access cannot be granted.
Accordingly,
the application in its present form is misconceived and must be
dismissed. In recording this conclusion, it is important
to
emphasise once again that this outcome does not reflect on the
substance of the claim that the President and Parliament are
under
a duty to enact the legislation in question.
Costs
Counsel
for all respondents, though contending that the application was
misconceived, left the question of costs in the hands
of the Court.
The general rule in this Court is that a private litigant who
seeks to assert legitimate constitutional entitlements
against the
state should, even if unsuccessful, not be made to pay the state’s
costs.
37
That rule is manifestly appropriate here. There should be no
order as to costs.
Order
The
application for direct access is dismissed. There is no order as
to costs.
Langa
CJ, Moseneke DCJ, Mokgoro J, Ngcobo J, Nkabinde J, O’Regan J,
Sachs J, Skweyiya J, and Yacoob J concur in the judgment
of Cameron
J.
For the Applicant: Advocate AM Breitenbach SC and Advocate N
Mangcu-Lockwood instructed by the Women’s Legal Centre Trust.
For the First, Second and Third Respondents: Advocate MTK Moerane
SC and Advocate L Gcabashe instructed by the State Attorney,
Johannesburg.
For the Fourth and Fifth Respondents: Advocate N Cassim SC
instructed by the State Attorney, Cape Town.
1
The interests that the applicant seeks to protect
are set out in [9] below.
2
Section 167(4)(e) provides that “
Only
the Constitutional Court may decide that Parliament or the President
has failed to fulfil a constitutional obligation”.
3
Section 167(6)(a) provides that “
National
legislation or the rules of the Constitutional Court must allow a
person, when it is in the interests of justice and with
leave of the
Constitutional Court to bring a matter directly to the
Constitutional Court”. Direct access is further regulated
in
Rule 18 of the Rules of this Court.
4
Section 9 of the Constitution.
5
Section 10 of the Constitution.
6
Section 15 of the Constitution.
7
See, for example, section 31 of the Constitution.
8
Section 38(d) of the Constitution provides that
“anyone acting in the public interest” may approach a
court alleging
that a right in the Bill of Rights has been infringed
or threatened.
9
Section 9 of the Constitution.
10
Section 10 of the Constitution.
11
Section 15 of the Constitution.
12
Section 30 of the Constitution.
13
Section 31 of the Constitution.
14
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
[1998] ZACC 21
;
1999 (2)
SA 14
(CC);
1999 (2) BCLR 175
(CC) at para 25. The Court held that
it was not necessary in that matter to decide what that narrow
meaning should be, adding
that it may depend on the facts and the
precise nature of the challenges to the conduct of the President.
15
Section 172(2)(a) of the Constitution provides that: “The
Supreme Court of Appeal, a High Court or a court of similar status
may make an order concerning the constitutional validity of an Act
of Parliament, a provincial Act or any conduct of the President,
but
an order of constitutional invalidity has no force unless it is
confirmed by the Constitutional Court.”
16
Above n 14.
17
King and Others v Attorneys’ Fidelity Fund Board of Control
and Another
2006 (1) SA 474
(SCA);
2006 (4) BCLR 462
(SCA).
18
Doctors for Life International v Speaker of the National Assembly
and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR
1399
(CC).
19
Section 167(3)(b) of the Constitution provides that the
Constitutional Court “may decide only constitutional matters,
and
issues connected with decisions on constitutional matters”.
20
Section 174(4) of the Constitution provides that:
“
The
other judges of the Constitutional Court are appointed by the
President, as head of the national executive, after consulting
the
Chief Justice and the leaders of parties represented in the National
Assembly, in accordance with the following procedure:
(a)
The
Judicial Service Commission must prepare a list of nominees with
three names more than the number of appointments to be made,
and
submit the list to the President.
(b)
The
President may make appointments from the list, and must advise the
Judicial Service Commission, with reasons, if any of the
nominees
are unacceptable and any appointment remains to be made.
(c)
The
Judicial Service Commission must supplement the list with further
nominees and the President must make the remaining appointments
from the supplemented list.”
21
Compare
Doctors for Life
,
above n 18 at paras 25-6
(Ngcobo J, for the Court) and para 260 (Yacoob J, dissenting).
22
Von Abo v President of the Republic of South Africa
[2009]
ZACC 15
, Case No CCT 67/08, 5 June 2009, as yet unreported, at para
36. The Court affirmed that section 167(4)(e)—
“
should
be construed restrictively in order to give full recognition to the
power of the Supreme Court of Appeal and the High Court
to determine
whether conduct of the President is constitutionally valid. On the
other hand, the Constitution does contemplate
that certain duties
are pointedly reserved for the President. This class of obligations
is derived from the Constitution itself
or from legislation. It
includes specified duties that the President as Head of State and
head of the national executive must
fulfil.” (Footnotes
omitted.)
23
Section 25(5) of the Constitution.
24
Section 26 of the Constitution.
25
Section 27 of the Constitution.
26
Section 40(1) of the Constitution.
27
Section 239 of the Constitution.
28
These are listed in section 181(1) of the Constitution as t
he
Public Protector; the South African Human Rights Commission; the
Commission for the Promotion and Protection of the Rights of
Cultural, Religious and Linguistic Communities; the Commission for
Gender Equality; the Auditor-General; and the Electoral Commission.
29
See section 85(2)(c) and section 188(1)(a) of the Constitution.
30
Above n 22 at paras 37-8.
31
Above n 18.
32
Section 59 (National Assembly) and section 72 (National Council of
Provinces) of the Constitution.
33
Section 85(2)(d) provides that: “The
President exercises the executive authority, together with the other
members of the Cabinet,
by preparing and initiating legislation”.
34
Above n 18 at paras 23-6.
35
The applicant invokes the following cases from the High Court:
Ryland v Edros
1997 (2) SA 690
(C);
1997 (1) BCLR 77
(C);
Daniels v Campbell NO and Others
2003 (9) BCLR 969
(C);
Khan
v Khan
2005 (2) SA 272
(T);
Hassam v Jacobs NO and Others
[2008] 4 All SA 350
(C).
From the Supreme Court of Appeal, it cites
Amod v Multilateral
Motor Vehicle Accidents Fund (Commission for Gender Equality
Intervening)
1999 (4) SA 1319
(SCA). It argues that similar
views have been expressed in this Court in
Fraser v Children’s
Court, Pretoria North and Others
[1997] ZACC 1
;
1997 (2) SA 261
(CC);
1997 (2) BCLR 153
(CC) and
Daniels v Campbell NO and Others
[2004] ZACC 14
;
2004 (5) SA 331
(CC);
2004 (7) BCLR 735
(CC).
36
See, for example,
AParty and Another v Minister for Home Affairs
and Others; Moloko and Others v Minister for Home Affairs and
Another
[2009] ZACC 4
;
2009 (3) SA 649
(CC);
2009 (6) BCLR 611
(CC) at para 30.
37
See
Affordable Medicines Trust and
Others v Minister of Health and Another
[2005] ZACC 3
;
2006 (3)
SA 247
(CC);
2005 (6) BCLR 529
(CC) at para 138 and
Biowatch
Trust v Registrar, Genetic Resources and Others
[2009] ZACC 14
,
Case No CCT 80/08, 3 June 2009, as yet unreported, at paras 22-5.