Women's Legal Centre Trust v President of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judge: Boqwana J, Desai J and Hlope-Salie J
• Judgment Date: 31 August 2018
• Docket Number: 22481/2014; 4466/2013; 13877/2015
• Hearing Date: 31 August 2018
• Counsel: N Bawa SC (with M O'Sullivan, M Adhikari and J Williams) for the applicants in case Nos 22481/2014 and 4466/2013 J de Waal SC (with A Newton and BC Wharton) for the plaintiff in case No 13877/2015. A Gabriel SC (with S Humphrey) for the first respondent in case No 22481/2014; and third defendant in case No 13877/2015. N Cassim SC (with G Papier and M Davis) for the second respondent in case No 22481/2014; the seventh and eighth respondents in case No 4466/2013; and the second defendant in case No 13877/2015. MA Albertus SC (with K Pillay) for the third respondent in case No 22481/2014. TJB Bokaba SC (with L Gcabashe) for the fourth respondent in case No 22481/2014. Z Omar (attorney) for the sixth and seventh respondents, and amicus in case No 22481/2014. R Moultrie (with S Kazee) for the eighth respondent in case No 22481/2014. R Laka (with HL Mokhutswane and AC Jooste) initially, R Nyman later, for the ninth respondent in case No 22481/2014. A Lawrence for the first defendant in case No 13877/2015. A Mahomed (attorney) for the second amicus in case No 22481/2014 (Law Society of South Africa). RK Parker (attorney) for the third amicus in case No 22481/2014 (Lawyers for Change). S Mahomed for the fourth amicus in case No 22481/2014 (Muslim Assembly). Nagia-Luddy (with MS Omar (attorney)) for the fifth amicus in case No 22481/2014 (Islamic Unity Convention). M Bishop (with A Christians and C McConnachie) for the sixth amicus in case No 22481/2014 (Commission for Gender Equality). E Vawda for the amicus in case No 22481/2014 (Jamiatul Ulama KZN). N Bawa SC (with J Williams) for the amicus in case No 13877/2015 (Women's Legal Centre Trust).
• Court: Western Cape Division, Cape Town

Boqwana J (Desai J and Hlope-Salie J concurring):

Introduction D

[1] Our Constitution [1] opens with an acknowledgement that as the people of South Africa, we recognise the injustices of our past and believe that South Africa belongs to all who live in it, united in our diversity. Human dignity, the achievement of equality and the advancement of human rights and freedoms form part of the founding provisions E of our Constitution. [2] It also entrenches its supremacy by stating that 'law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled'. [3]

[2] The Constitution recognises freedom of religion, belief and opinion by conferring upon everyone that right. [4] It also permits for legislation F recognising 'marriages concluded under any tradition, or system of religious, personal or family law; or systems of personal and family law under any tradition, or adhered to by persons professing a particular religion'. [5] Such recognition, importantly, must be consistent with provisions of the Constitution. [6]

[3] Questions of marriage, religion, law and the Constitution have G occupied the courts over a period of time. Marriage is an institution that has a character that goes wider than the individuals concerned. In Fourie [7] Sachs J remarked that the words 'I do bring the most intense private and voluntary commitment into the most public, law-governed and

Boqwana J (Desai J and Hlope-Salie J concurring)

State-regulated A domain'. Marriage is thus not only valued by the parties in marriage but by their families, society and the state. It has consequences both in the private and public sphere. Privately it offers reciprocal rights and duties of love and support between spouses, consequences and duties in relation to children and other important B benefits. The law places numerous other consequences with regard to marriage, such as in a case of insolvency and law of evidence as regards spouses in civil and criminal proceedings and other areas. As an institution, marriage has also been seen as the 'source of socio-economic benefits such as the right to inheritance, medical insurance coverage, adoption . . . spousal benefits, bereavement leave, tax advantages and C post-divorce rights'. [8] In Dawood [9] O'Regan J impressed as well that marriage is not only a relationship of great significance to the parties concerned, it is a relationship that has public significance.

[4] The issues before us concern recognition and regulation of marriages D solemnised and celebrated according to the tenets of Islamic law (also referred to as Muslim marriages). It is undisputed that marriages entered into in terms of the tenets of Islam have not been afforded legal recognition for all purposes. The applicants argue that non-recognition and non-regulation of these marriages violate the rights of women and children, in particular, in these marriages. According to them, the state E has failed in its 'duty to respect, protect, promote and fulfil the rights in the Bill of Rights' as required in s 7(2) of the Constitution in the face of its constitutional and international obligations, and that the most effective way of dealing with this systemic violation of rights is an enactment of statute. This approach, according to the applicants, has F been postulated by the courts in a number of judgments dealing with issues concerning Muslim marriages before. [10]

[5] These issues are without a doubt vexed. They attracted interest from various groupings within the Muslim community, some of whom, together with state respondents, pose different questions arising from G freedom of religion, religious entanglement, separation of powers and many other issues. It is therefore worth explaining the submissions made by various parties in some detail, as will be seen below. This is more so because the matter is extensive, dealing with three consolidated matters

Boqwana J (Desai J and Hlope-Salie J concurring)

and a myriad of relief. Before doing so, it is worth examining the A historical background surrounding Muslim marriages in brief terms.

Historical background

Judicial intervention

[6] Objectionable views of intolerance against Muslims prevailed in B colonial and apartheid South Africa. These were mirrored in a number of judgments of the courts at that time. Cases such as Bronn v Fritz Bronn's Executors and Others; [11] Ebrahim v Essop; [12] Seedat's Executors v The Master (Natal); [13] Kader v Kader; [14] and Ismail v Ismail [15] are a reflection of those dim views held in the past. In Ismail in particular, the court C regarded the recognition of polygynous unions solemnised under the tenets of the Muslim faith as void on the ground of it being contrary to accepted customs and usages, then regarded as morally binding upon all members of society. Recognition of polygynous unions was seen as a regressive step and entirely immoral.

[7] Over a period of time our courts have intervened and decried D attitudes rooted in discrimination and prejudice meted out by apartheid South Africa against Muslim communities. In Ryland v Edros [16] the court gave effect to the contractual agreement between parties who were married by Muslim rites. In Fraser v Children's Court, Pretoria North and Others [17] the Constitutional Court held that the Child Care Act 74 of 1983 E (Child Care Act) was unconstitutional because it discriminated unfairly and unjustifiably against the rights of, amongst others, fathers of children born of unions solemnised in terms of the tenets of the Islamic faith. In Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) [18] the Supreme Court of Appeal (SCA) held F that the previous approach in relation to boni mores of the community, adopted in Seedat Executors and Ismail, was 'inconsistent with the new ethos of tolerance, pluralism and religious freedom which had consolidated itself in the community even before the formal adoption of the interim Constitution on 22 December 1993'. [19] The court recognised monogamous Muslim spousal duty of support as worthy of recognition. G

[8] Then came Daniels v Campbell NO and Others (Daniels HC) [20] where the High Court, dealing with the question whether a surviving spouse in a monogamous Muslim marriage was a spouse, declared the Intestate H

Boqwana J (Desai J and Hlope-Salie J concurring)

Succession Act 81 A of 1987 (Intestate Succession Act) and the Maintenance of Surviving Spouses Act 27 of 1990 (Maintenance of Surviving Spouses Act) unconstitutional for excluding a spouse in a Muslim monogamous marriage for purposes of intestate succession.

[9] The matter went to the Constitutional Court where the court in Daniels [21] B held that '(t)he word spouse in its ordinary meaning includes parties to a Muslim marriage. Such a reading is not linguistically strained. On the contrary, it corresponds to the way the word is generally understood and used.' The court saw no need to find the impugned Acts unconstitutional and held that the word spouse should be given a broad C and inclusive construction. In its analysis, it found there to be 'no reason why the equitable principles underlying the statutes should not apply as tellingly in the case of Muslim widows as they do to widows whose marriages have been formally solemnised under the Marriage Act'. [22] Notably, the Minister of Justice had been in support of the confirmation of the High Court order.

[10] D Moseneke J (as he then was) in a minority judgment in Daniels [23] noted that the —

'''persisting invalidity of Muslim marriages is . . . a constitutional anachronism. . . . It originates from deep-rooted prejudice on matters E of race, religion and culture. True to their worldview, Judges of the past displayed remarkable ethnocentric bias and arrogance at the expense of those they perceived different. They exalted their own and demeaned and excluded everything else. Inherent in this disposition, says Mahomed CJ, is inequality, arbitrariness, intolerance and inequity.'

[11] F He held further that —

'(t)hese stereotypical and stunted notions of marriage and family must now succumb to the newfound and restored values of our society, its institutions and diverse people. They must yield to societal and constitutional recognition of expanding frontiers of family life and G 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.' [24]

[12] H In Khan v Khan [25] the court held that a polygamous Muslim marriage gave rise to a legal duty on the part of the husband to maintain his wife as contemplated in s 2(1) of the Maintenance Act 99 of 1998 (the Maintenance Act).

Boqwana J (Desai J and Hlope-Salie J concurring)

[13] Another significant judgment from the Constitutional Court came A to the fore in Hassam v Jacobs NO and Others. [26] The court held s 1 of the Intestate Succession Act to be inconsistent with the Constitution to the extent that it did not include more than one spouse in a polygamous Muslim marriage in the protection afforded to 'a spouse', and read in the words 'or spouses' after the word 'spouse' wherever it appeared in that B section. The Minister of Justice had also supported the confirmation of declaration of invalidity.

[14] Insofar as the views expressed in Ismail were concerned, Nkabinde J had this to say:

'The Court assumed, wrongly, that the non-recognition of polygynous C unions was unlikely to cause any real hardship to the members of the...