FOR IMMEDIATE RELEASE
CAPE TOWN: 28 June 2022
The Women’s Legal Centre Trust (WLC) is elated in welcoming the judgment handed down by the Constitutional Court in which it finally provides recognition of Muslim women’s rights to equal recognition and protection in marriage.
The WLC along with its partners has been pioneering the legal recognition and protection of Muslim women’s rights in marriage since the Centre first opened its doors over twenty years ago. This has been a truly long road for the Centre and for the Muslim women of South Africa to vindicate their rights to equal recognition and protection before the law.
The Centre first launched the Women’s Legal Centre Trust v The President and Others case in 2014, and had judgment handed down in the Western Cape High Court in August 2018 whereafter the case went to the Supreme Court of Appeal where judgment was handed down in December 2019. The Constitutional Court heard the matter in September 2021 and has brought final closure to the question of whether Muslim women are being discriminated against because they are unable to vindicate their rights to housing, land and property accumulated in marriage when their marriage comes to an end.
The Constitutional Court has confirmed what the Centre has been arguing for over 20 years: Muslim women are being discriminated against because of their religious beliefs. And because they have married in terms of their religion, they have been unable to access the same relief and remedies as women married in terms of the Marriages Act or the Recognition of Customary Marriages Act. The Court importantly recognises the vulnerability of Muslim women within their religious communities and families and finds that it cannot turn a blind eye to the unequal power dynamic that may be at play between men and women in the negotiation of marriage.
The Court has also confirmed that children born of Muslim marriages are being discriminated against because they are unable to access protection mechanisms that are in place during divorce proceedings for children born in other forms of marriages.
The Court has therefore found that the:
(a) The Marriages Act is inconsistent with the Constitution in as far as it fails to recognise Muslim marriages;
(b) The Divorce Act is inconsistent with the Constitution in as far as it fails to recognise Muslim marriages;
(c) The common law definition is inconsistent with the Constitution in that it fails to recognise Muslim marriages;
(d) The declaration of invalidity is suspended for 24 months to allow the state to remedy the breach by either enacting new legislation or amending existing legislation.
In the interim the Court has granted relief in that:
(a) The Divorce Act may be used to dissolve a Muslim marriage that was in existence on 15 December 2014 or which may have been terminated in terms of Shari’a by 15 December 2014, in which legal proceedings have not been finally decided.
(b) This remedy however is only available in respect of marriages / terminations where legal proceedings were implemented by either of the parties and where such proceedings have not been finally determined.
(c) The Divorce Act shall guide such proceedings but the Court shall treat such marriages as if they are / were out of community of property.
(d) The Divorce Court must however ensure that the order in respect of the assets of the marriage is just and equitable between the parties
(e) Where a husband is a spouse in another marriage the court must take into account in contracts or agreements and ensure that the matter is determined in a just and equitable manner, and that any other party with a material interest in the proceedings can be joined.
(f) That the Children’s Act will apply in respect of the marriage of minor children to protect their interest
(g) Further that pending the enactment of legislation certain portions of the Recognition of Customary Marriages Act shall apply to Muslim marriages in order to give such marriages legal recognition.
The obligation now falls to the state to fast track its legislative development programme to ensure compliance with the Courts order and to ensure that it addresses the rights violation that the Court has found.
We express deep gratitude to the Muslim women who have continued to support our case and who stepped forward to vindicate their rights over the past twenty years. We would not have achieved this victory without the commitment and dedication of our attorneys, and support staff and of course our advocates over the past eight years Advocates Nazrene Bawa SC, Michelle O’Sullivan SC, Mushahida Adhikari and Jennifer Williams.
The Women’s Legal Centre is an African feminist legal centre that advances womxn’s rights and equality using tools such as litigation, advocacy, education, advice, research and training.
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