On August 31, 2018, the Western Cape High Court in South Africa handed down a groundbreaking judgment in the case of Women’s Legal Centre Trust v President of the Republic of South Africa and Others.[1] In this case, a full bench of three High Court judges ordered the South African government to enact legislation within the next 24 months to recognize Muslim marriages.[2] This matter was as a result of an application brought by the Women’s Legal Centre Trust (WLCT), which is a South African non-governmental organization that advocates for the rights of women.
During the colonial and apartheid periods, only monogamous and heterosexual marriages were considered valid and lawful. This meant that African customary-, Muslim-, Hindu-, and Jewish marriages were excluded from legal recognition due to their potentially polygynous nature, which the colonial and apartheid era courts deemed to be contrary to public policy.[3] Same-sex unions were also prohibited. For a marriage to be treated as legal, it needed to be registered under the Marriage Act,[4] which is regarded as secular legislation. A litany of secular legislation also regulates various aspects of secular marriages such as matrimonial property regimes, maintenance obligations, parental rights and responsibilities, dissolution of marriage, and succession rights of surviving spouses.[5]
When South Africa obtained a constitutional democracy in 1994, the judiciary decided that the country’s public policy is now determined by a constitutional ethos, which is underpinned by the founding values of equality, human dignity, and freedom.[6] In light of the aforementioned values, the 1996 South African Constitution recognizes African customary law alongside common law and makes it possible for the enactment of legislation to recognize traditional and religious marriages or personal and family law systems.[7] Accordingly, the Recognition of Customary Marriages Act (RCMA)[8] and the Civil Union Act (CUA)[9] were passed. The RCMA affords legal recognition to monogamous and polygynous African customary marriages and the CUA recognizes same-sex unions.
A Muslim Marriages Bill was drafted by the South African Law Reform Commission and presented to the Ministry of Justice and Constitutional Development in 2003.[10] The Bill purports to comprehensively recognize and regulate Muslim marriages in South Africa. However, it has not yet entered the parliamentary process for consideration. Muslim marriages are thus presently without legal recognition and protection.
The Court found that by failing to recognize Muslim marriages, the South African government had failed in its constitutional obligations set out in section 7(2) of the Constitution, which requires the South African state to “respect, protect, promote and fulfil the rights in the Bill of Rights.”[11] The rights affected by the non-recognition of Muslim marriages include sections 9 (equality), 10 (dignity), 15 read with 31 (freedom of religion), 28 (best interests of the child), and 34 (access to courts).[12]
The Court found that failure to afford recognition to Muslim marriages unfairly discriminates against Muslim women on the basis of religion, marital status, gender, and sex vis-à-vis persons married under the Marriage Act and the RCMA and that such discrimination is not justifiable.[13] The Court held that continued non-recognition of Muslim marriages also infringes Muslim women’s right to dignity.[14] The Court acknowledged that Muslim men have the power to unilaterally repudiate their wives through ṭalāq. When this happens, Muslim wives cannot obtain relief in a secular court pursuant to the dissolution of the Muslim marriage, which negatively affects their access to courts.[15] The Court further noted that children born of Muslim marriages do not have the same protection as children born of secular marriages when the latter dissolve through secular divorce. In the case of secular divorce, a court has ‘automatic oversight’ to ensure that the best interests of the child are protected. When a Muslim marriage dissolves through a Muslim divorce, the secular court is not involved and cannot play a supervisory role to similarly protect the best interests of a child born of a Muslim marriage.[16] The Court moreover found that legal recognition of Muslim marriages would not interfere with freedom of religion. In fact, the Court held that “[c]omprehensive legislation is required … [to] provide effective protection of [Muslim] marriages, whilst giving expression to Muslim persons’ rights to freedom of religion.”[17]
I have repeatedly argued that recognition of Muslim marriages, while necessary, is not sufficient to afford adequate protection for women’s rights. Regulation of the features of a Muslim marriage and divorce is also required. It is therefore fortifying to see that the language of “recognition and regulation” of Muslim marriages found its way into the judgment and is peppered across the judgment. The Court’s acknowledgment that comprehensive legislation is required reinforces the position that I have held (and still do) that regulation in addition to recognition is needed to ensure suitable protection for women in Muslim marriages.
Should government fail to enact the required legislation within the 24-month deadline, the Court ordered that interim relief could be afforded to parties married by Muslim rites, which would enable them to have their marriage dissolved through the Divorce Act.[18] It is unclear why the Court did not accept the Commission on Gender Equality’s request for interim relief to take effect now pending the enactment of the legislation,[19] since whatever problems Muslims, especially Muslim women would experience after 24 months, they are experiencing presently. Furthermore, while the interim remedy will provide some relief to Muslim women, it will not assist them in obtaining a Muslim divorce, particularly in an equal and fair manner.[20] For this, recognition and regulation of the features of a Muslim divorce is required. Finally, the Court’s willingness to allow the dissolution of a Muslim marriage to be regulated through the Divorce Act could mean that when the interim relief takes effect, a Muslim marriage will most likely be implicitly recognized as a civil marriage.
The Court left it open to the Executive and Legislature to decide on the manner of recognition of Muslim marriages.[21] It is hoped that the South African government will take heed of the benefits of regulation and prepare and initiate legislation for parliamentary consideration that proposes to comprehensively regulate the features of Muslim marriage and divorce.
[1] The case comprised three matters of which one was the Women’s Legal Centre Trust v President of the Republic of South Africa and Others (Case No: 4466/2013). The remaining two matters were Tarryn Faro v Marjorie Bingham N.O. and Others (Case No: 4466/2013) and Esau v Esau and Others (Case No: 13877/2015).
[2] At para 252.
[3] Bronn v Frits Bronn’s Executors and Others 1860 3 Searle 313; Seedat’s Executors v The Master 1917 A.D.; Kader v Kader 1972 (3) SA 203 (R.A.D.); Ismail v Ismail 1983 (1) SA 1006 (AD).
[4] No 25 of 1961.
[5] Matrimonial Property Act 88 of 1984, Maintenance Act 99 of 1998, Children’s Act 38 of 2005, Divorce Act 70 of 1979, Mediation in Certain Divorce Matters Act 24 of 1987, Intestate Succession Act 81 of 1987, and Maintenance of Surviving Spouses Act 27 of 1990.
[6] Section 7(1) of the South African Constitution.
[7] Sections 15(3), 39(2)–(3) of the South African Constitution.
[8] No 120 of 1998.
[9] No 17 of 2006.
[10] A copy of the Bill is available at https://www.gov.za/sites/default/files/gcis_document/201409/33946gen37.pdf [https://perma.cc/SC9K-YP8W].
[11] At para 252.
[12] Ibid.
[13] At paras 134–135.
[14] At para 179.
[15] At paras 137, 140.
[16] At paras 138–140.
[17] At para 184.
[18] At para 252.
[19] At para 113.
[20] In South Africa, men are easily able to exit a Muslim marriage through the ṭalāq mechanism, which they regularly abuse. In contrast, women experience great difficulty in being released from a Muslim marriage, either through faskh or khulʿ. See Waheeda Amien, “Overcoming the Conflict Between the Right to Religious Freedom and Women’s Rights to Equality – a South African Case Study of Muslim Marriages,” Human Rights Quarterly 28 (2006): 732. Waheeda Amien, “A South African Case Study for the Recognition and Regulation of Muslim Family Law in a Minority Muslim Secular Context,” International Journal of Law, Policy and the Family 24 (2010): 377.
[21] At para 188.