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

• Jurisdiction: South Africa
• Citation: 2018 (6) SA 598 (WCC)

Women's Legal Centre Trust v President of the Republic of South Africa and Others
2018 (6) SA 598 (WCC)

2018 (6) SA p598

Citation	2018 (6) SA 598 (WCC)
Case No	22481/2014; 4466/2013; 13877/2015
Court	Western Cape Division, Cape Town
Judge	Boqwana J, Desai J and Hlope-Salie J
Heard	August 31, 2018
Judgment	August 31, 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).

Flynote : Sleutelwoorde

Constitutional law — Human Rights — State's duty to protect, promote and fulfil — Non-recognition of Muslim marriages — Infringing rights to equality, dignity, right of access to court and children's rights — Failure to enact C legislation recognising and regulating Muslim marriages declared constitutionally invalid — President, Cabinet and Parliament directed to enact such legislation with 24 months, failing which interim position would apply thereafter — Constitution, s 7(2).

Headnote : Kopnota

The applicants (in three consolidated applications) argued that the non-recognition D and non-regulation of marriages solemnised and celebrated according to the tenets of Islamic law (Muslim marriages) violated the rights of women and children in these marriages. This, they said, constituted a failure by the state (the President and Parliament) 'to respect, protect, promote and fulfil the rights in the Bill of Rights' as required in E s 7(2) of the Constitution. In the first and third applications, declaratory orders to this effect were sought, and further (inter alia) orders directing the state to prepare and initiate the enactment of legislation providing for the recognition and regulation of Muslim marriages.

Held

The continued non-recognition of marriages solemnised according to Islamic F tenets infringed such spouses' rights to equality and dignity ([119] – [136] and [179]); their rights of access to court on dissolution of such marriages ([137] and [179]); and the rights of children born of such marriages ([138] – [139] and [179]).

The non-recognition of Muslim marriages was historical and persistent since the G beginning of democracy — a systemic failure by the state to provide recognition and regulation, potentially affecting millions of people around the country. The state must take 'reasonable and effective' measures to discharge its s 7(2) duty. Given the nature of the rights violations, in the context of the complexity and importance of marriage, the only reasonable means of fulfilling the s 7(2) duty was through the enactment of legislation. H Case-by-case and incremental development of the law was not entirely effective. Comprehensive legislation was required to provide effective protection of marriages concluded in terms of the tenets of Islamic law, whilst giving expression to Muslim persons' rights to freedom of religion. ([152], [178] – [181] and [184].)

A I declarator stating that the state had failed to fulfil its constitutional obligations was appropriate, and, for it to be effective, it must also be mandatory. It was just and equitable to make an order that required both the executive and the legislature, as part of the state, to work in collaboration, within their constitutionally defined roles, to rectify the failure identified by fulfilling the duty placed on the state by s 7(2) of the Constitution to respect, protect, J promote and fulfil the rights in the Bill of Rights. ([194] and [200].)

2018 (6) SA p599

In the result — A

•

it would be declared that the President and Cabinet have failed to fulfil their respective constitutional obligations under s 7(2) of the Constitution, by not preparing, initiating, introducing, enacting and bringing into operation, diligently and without delay as required by s 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 B consequences of such recognition; and

•

the President and Cabinet together with Parliament would be directed to rectify the failure within 24 months of the date of this order. (However, if the contemplated legislation were referred to the Constitutional Court by the President in terms of s 79(4)(b) of the Constitution, or by members of the National Assembly in terms of s 80 of the Constitution, the relevant C deadline would be suspended pending the final determination of the matter by the Constitutional Court.)

And, in the event that legislation were not enacted within 24 months from the date of this order, and until such time as the coming into force thereafter of such contemplated legislation, the following order shall come into effect —

o

a union, validly concluded as a marriage in terms of Sharia law and which D subsisted 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 s 7(3) shall apply to such a union regardless of when it was concluded; and

o

in the case of a husband who is a spouse in more than one Muslim E marriage, the court shall take into consideration all relevant factors, including any contract or agreement, and must make any equitable order that it deems just; and may order that any person who in the court's opinion has a sufficient interest in the matter be joined in the proceedings. ([252].)

Cases cited

Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency and Others F 2014 (4) SA 179 (CC) (2014 (6) BCLR 641; [2014] ZACC 12): referred to

AM v RM 2010 (2) SA 223 (ECP): referred to

Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) G 1999 (4) SA 1319 (SCA) ([1999] 4 All SA 421): dictum in para [20] applied

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): dictum in para [45] applied

Bezuidenhout v Bezuidenhout 2005 (2) SA 187 (SCA) ([2004] 4 All SA 487): dictum in para [21] applied H

Bhe and Others v Magistrate, Khayelitsha, and Others 2004 (2) SA 544 (C) (2004 (1) BCLR 27): referred to

Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another I 2005 (1) SA 580 (CC) (2005 (1) BCLR 1; [2004] ZACC 17): dictum in para [112] applied

Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening) 2017 (3) SA 335 (CC) ([2017] ZACC 8): referred to

Bronn v Fritz Bronn's Executors and Others (1860) 3 Searle 313: referred to J

2018 (6) SA p600

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) A 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22): dictum in para [44] applied

Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC) (1999 (12) BCLR 1420; [1999] ZACC 16): referred to

Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) B (2000 (10) BCLR 1051; [2000] ZACC 11): referred to

Daniels v Campbell NO and Others 2003 (9) BCLR 969 (C): compared

Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) (2004 (7) BCLR 735; [2004] ZACC 14): applied

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837; C [2000] ZACC 8): dictum in para [31] applied

De Lange v Presiding Bishop, Methodist Church of Southern Africa and Another 2015 (1) SA 106 (SCA) ([2014] ZASCA 151): referred to

DE v RH 2015 (5) SA 83 (CC) (2015 (9) BCLR 1003; [2015] ZACC 18): dictum in para [39] applied

Doctors for Life International v Speaker of the National Assembly and Others D 2006 (6) SA 416 (CC) (2006 (12) BCLR 1399; [2006] ZACC 11): referred to

Ebrahim v Essop 1905 TS 59: referred to

Economic Freedom Fighters and Others v Speaker of the National Assembly and Another 2018 (2) SA 571...