If the Women’s Legal Centre Trust (WLC) has it its way with the Constitutional Court, then Muslim marriages (de facto unions too) that subsist, either the day South Africa became a democracy (27 April 1994), or 15 December 2014 (the day this matter was register on a High Court’s roll) may be dissolved.
ConCourt to rule on Muslim marriages case
The highest court on the land will, on Thursday, preside over possibly one of the most important cases in modern South African history.
In a statement published on its social media pages, the ConCourt confirmed that the WLC will take President Cyril Ramaphosa and others to task over a ruling made by the Supreme Court of Appeals on the status of Sharia law (Muslim marriage) in South Africa.
The women’s activist group took the president to court, in December 2014 to argue that the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979, along with a number of provisions of the latter, were inconsistent with Sections 9, 10, 28 and 34 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.”
The case was won by the WLC and the Presidency, along with the Ministry of Justice at the time, escalated matters to the SCA who concurred with the High Court in its ruling.
The SCA found that the two Acts in question, along with accompanying provisions, were inconsistent with the sections of the Constitution in question.
“The SCA held that the non-recognition of Muslim marriages is a violation of constitutional rights for Muslim women and children, and that the Marriage Act and the Divorce Act, and certain provisions of the Divorce Act, are inconsistent with Sections 9, 10, 28 and 34 of the Constitution,” the ConCourt revealed.
Essentially, under the current laws of South Africa, Muslim wives have the option to register their marriages but choose not to. This lack of recognition, the WLC has argued, infringes on the dignity of Muslim women and children who are left without the protections available to children and spouses of civil and customary unions once these marriages are terminated.
The WLC has lodged an appeal for the President to take on the responsibility of enacting and legislation “to recognise and regulate Muslim marriages” in line with the prescripts of the Constitution.
What are the implications if order is granted?
While for the most part, the presidency has not objected to the part of the ruling that deems Muslim marriages unconstitutionally ostracised, the State is contesting two things:
- The responsibility attached to the president and the Cabinet as the executive authority with the duty to enact and regulate laws; and
- The consequence such a ruling with have on the validity of Muslim marriages and divorce settlements dating back to 27 April 1994.
“[The State] submits that the retrospective effect of the order must be limited, so as to avoid disruption, and must only apply to Muslim marriages that subsisted as of 27 April 1994 or which were concluded thereafter, but not to Muslim marriages that have been terminated either by death or divorce before the date of this order,” the apex court explained.
Apart from the fight to have this historic ruling fall on the shoulders of Ramaphosa and his administration, the WLC, supported by the South African Human Rights Commission (SAHRC) and the Commission for Gender Equality (CGE), wants the apex court to dissolve Muslim marriages that subsisted either on 27 April 1994 or 15 December 2014 in accordance with the same provisions of the Divorce Act they believe are unconstitutional to Sharia law.
The women’s activist group has asked the court to make this landmark ruling, so long as this does not invalidate:
- the winding up of a deceased estate that has been finalised;
- the transfer of property by a party to a marriage that has been affected, unless:
- the property is transferred to a person or legal entity connected to the divorce action;
- the transferee was aware at the time of transfer that the property formed part of the assets in a divorce action; and
- the transferee was married or had concluded a civil union with a party to the divorce action.
This is what the President is arguing
Heading into Thursday’s historic ruling, the president has conceded that the current frames of the Marriage and Divorce Acts are unfavourable to Muslim marriages. However, the State, supported by the Association of Muslim Women of South Africa, opposes:
- the retrospective effect of the order; and
- the claim that it is the prerogative of the Executive to enact legislation relevant to this matter.
The ConCourt will preside over the matter on Thursday from 10:00. The proceedings can be streamed live on the apex court’s YouTube channel.
