WOMEN’S LEGAL CENTRE TRUST APPLICATION TO THE CONSTITUTIONAL COURT
A Statement from the United Ulama Council of South Africa (UUCSA)*
1. In December 2014, the Women’s Legal Centre Trust, (“the WLC”) a non- profit trust, based in Cape Town, launched an application in the High Court, Western Cape, (“the High Court “) for a declaration that the State had failed to fulfill its constitutional obligation under section 7(2) of the Constitution to pass legislation providing for the recognition and regulation of Muslim marriages as valid marriages for all purposes in South Africa.
2. The High Court ruled that the State is obliged by section 7(2) of the Constitution to pass legislation recognizing Muslim marriages “solemnized in accordance with the tenets of Shariah law as valid marriages and to regulate the consequences of such recognition.”
3. The High Court further ruled that the State must rectify such failure to enact legislation, within 24 months ( 31 August 2020), failing which, the provisions of the Divorce Act would become applicable to all subsisting Muslim marriages, in the form of interim relief, pending the contemplated legislation recognizing and regulating Muslim marriages.
4. The State appealed the ruling of the High Court to the Supreme Court of Appeal (“the SCA”), on the grounds that there was no obligation on the State to adopt legislation to recognize Muslim marriages and their consequences.
5. On the 18 December 2020, the SCA delivered a judgment in which it ruled that the Marriage Act and the Divorce Act, including certain provisions thereof, are unconstitutional “in that they fail to recognize Muslim marriages solemnized in accordance with Shariah law, as valid marriages for all purposes and to regulate the consequences of such recognition, “and directing the State to either amend existing legislation or pass new legislation within 24 months to rectify the failure.
6. In addition, the SCA granted interim relief, in respect of the dissolution of existing, subsisting Muslim marriages, through the application of all the provisions of the Divorce Act, pending the amendment by the State of existing legislation or the passing of new legislation, recognizing and regulating Muslim marriages for all purposes.
7. On the 25 January 2021, the WLC brought an application to the Constitutional Court (“CC”) for orders confirming the constitutional invalidity of the Marriage Act and the Divorce Act, more particularly confirmation of the orders of constitutional invalidity made by the SCA in paragraphs 1.1 to 1.4 and 1.7 of its judgment.
8. The State consents to and supports these certification and confirmation orders, the State having finally conceded in argument before the SCA that the failure to recognize Muslim marriages infringes the constitutional rights to equality, dignity and access to justice .
9. The WLC in addition seeks from the CC leave to appeal the SCA order granting interim relief to existing Muslim marriages on the basis that such interim relief should extend to apply retrospectively, backdated to Muslim marriages which subsisted on the 27 April 1994. The State opposes retrospective interim relief.
10. A key central issue which the CC has to determine is whether or not, section 7(2) of the Constitution places a self-standing positive obligation on the State to adopt legislation recognizing Muslim marriages and regulating its consequences.
11. The overwhelming majority of the parties to this current pending litigation are in agreement that the legal non - recognition of Muslim marriages results in multiple breaches of a range of entrenched rights, and it is accordingly necessary that Muslim Marriages be legally recognized and regulated to protect spouses, children, families and the wider community.
12. It has been argued that nothing was done by the State for the past 27 years, despite the direction by the late President Mandela in 1998, when he tasked the late Minister of Justice Dullah Omar with implementing legislation recognizing Muslim marriages and their consequences.
13. The SCA aptly denounced this manifest void in the following terms: “We have had the benefit of judgments that have emerged from the Constitutional Court, this Court and high courts, expressing trenchant criticism of the failure on the part of the State to take steps to afford legal recognition to Muslim marriages, the historical disadvantages, hardships and prejudice for parties to Muslim marriages, especially Muslim women and children, continues to prevail.”
14. It is vitally important to note that this litigation is not about the content of legislation relating to Muslim marriages. That is the prerogative of the executive and the legislature, to determine, in the context of the separation of powers doctrine.
15. UUCSA reiterates that the choice remains a stark one: either piecemeal case -by- case judicial development, inconsistent with Shariah principles (producing manifest uncertainty), or, a viable statutory framework, which is Shariah compliant.
16. Absenting a viable, ring - fenced and effective Shariah compliant legislative framework, how does one enforce the multiple Shariah law rights and obligations flowing from a Muslim marriage and its termination?
17. We are poignantly reminded of the famous seminal letter written by the second Caliph Umar (ra) to Qadi Abu Musa al-Ashari, to the effect that, inter alia, it is meaningless to speak of rights, if such rights are not enforceable.
18. It is recorded that one member of UUCSA, namely the Jamiatul Ulama, KZN, does not concur with the aforesaid position of UUCSA. At all relevant times, the stance of UUCSA was adopted by the unanimous assent of all its remaining members, excluding the dissent of the Jamiatul Ulama, KZN.
19. The Jamiatul Ulama KZN remains fundamentally opposed to legislation recognizing and regulating Muslim marriages and has, of its own accord, made submissions in this regard , in its capacity as amicus curiae, before the High Court. UUCSA respected its right to express an opposing view.
20. It is a mistake to automatically assume that the MMB would form the basis of future legislation, recognizing and regulating Muslim marriages and their consequences.
21. As disclosed in its Discussion Paper, published in January 2021, the SALRC has recently initiated a new investigation, whose main aim is to “explore the questions whether and how provision should be made in South Africa for the adoption of a single marriage statute.”
22. UUCSA will continue to do its utmost, as in the past, to protect the integrity and principles of Shariah Law, in family matters, which in turn is intertwined with the preservation of the distinct identity and character of the Muslim community.
23. The current legal position is that the interim relief granted by the SCA stands, pending the outcome of a decision by the CC , on whether such interim relief should operate retrospectively, as sought by the WLC, pending the passing of the envisaged legislation by the State.
14 Dhual Hijjah 1442 25 July 2021
*NOTE: This statement has not been endorsed by the Jamiatul Ulama KZN (JUKZN)