ConCourt reserves judgment in Muslim marriages case

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The Constitutional Court
The Constitutional Court
PHOTO: Ashraf Hendricks, GroundUp
  • The Constitutional Court has reserved judgment in the Muslim marriages case.
  • In 2018, the Western Cape High Court found the state had a constitutional obligation to recognise Muslim marriages and it had failed in this duty.
  • The Supreme Court of Appeal gave the state 24 months to remedy the defect in the law identified in this case.

The Constitutional Court has reserved judgment in the application by the Women's Legal Centre Trust to provide finality on the state's obligation to recognise Muslim marriages as ordered by the Supreme Court of Appeal (SCA) last year.

The trust wants the apex court to confirm the SCA order to legally recognise Muslim marriages and declare certain sections of the Divorce Act unconstitutional. The state is not opposing the confirmation application, but said it must be limited to Muslim marriages terminated either by death or divorce before the date of the order.  

The order was to declare that the Marriage Act 25 of 1961, and certain provisions of the Divorce Act 70 of 1979, to be inconsistent with sections of the Constitution in that they fail to recognise marriages solemnised in accordance with sharia law as being valid for all purposes in South Africa, and to regulate the consequences of such recognition.

In 2018, the Western Cape High Court found the state had a constitutional obligation to recognise Muslim marriages and it had failed in this duty. The state appealed the judgment.

The case was then heard by the SCA and judgment was handed down in December last year.

It also declared the common law definition of marriage was inconsistent with the Constitution and invalid to the extent that it excluded Muslim marriages.

ALSO READ | Lawyer under fire after 'ninja' comment shakes up ConCourt hearing on Muslim marriages

The SCA gave the state 24 months to remedy the defect in the law identified in this case.

The state contended it had discretion as to the nature and content of the prepared legislation.

It submitted the doctrine of separation of powers militated against granting composite relief.

(Screengrab, The Constitutional Court of South Africa Youtube)

The trust's legal representative, Nazreen Bawa, told the court: "We are asking the court not to close the door on women. Give them the option to exercise their rights. Without this relief, women who have historically been deprived will continue to be deprived."

READ | Gender commission praises court 'victory', recognition of Muslim marriages

Advocate Richard Moultrie, representing the SA Human Rights Commission, told the court the country had a regional and international law obligation to enact legislation and it had failed to do so.

"Our submission is that this court is obliged to find a just and equitable remedy for the infringements of the rights that have been shown in this case and have been conceded by the state," he said.

The legal representative for President Cyril Ramaphosa and the justice minister, who have been cited in court papers, advocate Andrea Gabriel told the court the state did not believe there was an automatic right or obligation for it to recognise marriages that were concluded in South Africa.

"The state is concerned that there will be chaos if interim relief is extended to marriages that have already been dissolved either through death or divorce. The state views that the religion has certain protection, and therefore the issue lies within the legislation itself. The state has legislation and policy to recognise marriage," she said.

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