Legal Articles

Muslim Marriages Bill South Africa

President of the RSA and Another v Women’s Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others (612/19) [2020] ZASCA 177.

The groundbreaking case referred above resulted in the recognition of marriages concluded under Muslim rites as valid in South Africa.

This is momentous because since the dawn of democracy in South Africa, with a supreme Constitution that recognises the equality, dignity, and religious freedom of all who live in it, Muslim marriages were not accorded the same importance and validity as other marriages concluded under indigenous African law systems and civil law.

The Court noted that South Africa had came a long way since the decided cases of Ismail v Ismail 1983 (1) SA 1006 (A), Kader v Kader 1972 (3) SA 203 (RA), Bronn v Fritz Bronn’s Executors and Others and Seedat’s Executors v The Master (Natal) 1917 AD 302 where recognition of Muslim marriages had not been granted. These cases had been decided before the coming of the new democratic and constitutionally sacrosanct dispensation.

Muslim Customary Marriage

Facts of the Case

The Women’s Legal Centre had in 2009, brought a petition to the Constitutional Court for direct access in terms of Section 167 of the Constitution, seeking relief from the Court to direct the state to recognize marriages concluded under Muslim law.

The petition was dismissed and instead directed the matter to the High Court (Western Cape Division).

In 2015 the Women’s Legal Centre (WCL) brought consolidated applications wherein for its part, sought a declaratory order to the effect that the state’s failure to recognize Muslim marriages was inconsistent with Sections 7(2), 9(1), 9(2), 9(3), 9(5), 10, 15(1), 15(3), 28(2), 31 and 34 of the Constitution of the Republic of South Africa Act 108 of 1996.

Further, it argued that the Marriages Act 25 of 1961 and the Divorce Act 70 of 1979 and its provisions in so far as they did not recognize nor provide for Muslim marriages, they too were in breach of the Constitution.

The consolidated application involved Mrs Faro and Mrs Esau as well, who also sought the recognition of Muslim marriages in their respective separate applications, which was the basis of consolidation with the WCL application.

Mrs Faro had sought relief in a prior application against the Executrix of the late Mr Moosa Ely’s deceased estate, to be recognized as his spouse at the time of his death. They had been married under Muslim rites.

She was subsequently declared as the spouse for the purposes of intestate succession, then she approached the High Court to seek relief for the recognition of Muslim marriages in South Africa.  

On the other hand, Mrs Esau had successfully sought an interdict against the GEPF to prevent it from paying 50% pension interest to Mr Esau whom she had been married to under Muslim rites, until the completion of an action for her to be paid her share of the pension interest.

This action was to seek a declaratory order for the state to recognize Muslim marriages. This then became part of the consolidated action in the High Court (Western Cape Division).

The High Court declared the following:

“the State is obliged by section 7(2) of the Constitution to respect, protect, promote and fulfill the rights in sections 9, 10, 15, 28, 31 and 34 of the Constitution by preparing, initiating, introducing, enacting and bringing into operation, diligently and without delay as required by section 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 consequences of such recognition.”

Leave was granted to appeal which the State did on the consolidated actions whose main issues were premised on the question of recognition of Muslim marriages.

Supreme Court of Appeal

The Appellants acceded that provisions of the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979 were in violation of the Constitution.

In this regard the Appellants and Respondents were given an opportunity to come up with a draft Order which however did not materialize due to differences in opinion on some issues.

These issues however were academic, and this discussion will not dwell on the, but they related to the determination of whether, firstly Section 7(2) of the Constitution places an obligation on the State to prepare, initiate, introduce, and bring into operation legislation to recognise Muslim marriages as valid marriages and to regulate the consequences of such recognition.

Secondly whether the provisions in question are inconsistent with Section 15 of the Constitution and lastly whether the interim measure should have retrospective operation as contended for.

Recognition of Muslim Marriages in South Africa

The net effect of the case is that Muslim marriages are now recognized in South Africa as valid. The Court held that the obligation to promulgate new legislation or amend existing legislation to provide for recognition of Muslim marriages is solely within the ambit of the legislature and executive.

That was premised on the principle of separation of powers of the state. Provisions of the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979 were upheld as invalid and to be referred to the Constitutional Court for confirmation, and that the legislature had authority to determine the retrospective effect of legislation they will promulgate or amend in recognition of Muslim marriages.

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