Judicial Intervention in Facilitating Legal Recognition (and Regulation) of Muslim Family Law in Muslim-Minority Countries The Case of South Africa

INTRODUCTION

The question of legal recognition of Muslim marriages in South Africa surfaces in the South African public domain from time to time, usually when national elections loom and the majority party wants to secure its "Muslim vote." When that happens, promises are made in one way or another that Muslim marriages will be recognized. This has been the narrative since before the attainment of a constitutional democracy in 1994.^[1] Twenty-five years later, there is still no legal recognition being afforded to Muslim marriages in South Africa, despite continuous calls for recognition of Muslim marriages by various sections of civil society and the Muslim communities in South Africa. This has led to a ground-breaking judgment delivered in 2018 by a full bench of the Western Cape High Court in a consolidated application comprising three cases: the Women’s Legal Centre Trust v. President of South Africa and Others (WLCT),^[2] Faro v. Bingham N.O. and Others (Faro),^[3] and Esau v. Esau and Others (Esau).^[4]

In the above consolidated application (hereafter also referred to as "the WLCT matter"),^[5] the South African state was ordered to enact legislation to recognize and regulate the consequences of Muslim marriages within twenty-four months of the judgment being handed down.^[6] Enactment of such legislation would be in accordance with the constitutional right to freedom of religion, which is of an individual and collective nature. The individual right to freedom of religion is encompassed in section 15(1) of the South African Constitution, 1996, which protects "[e]veryone’s … right to freedom of conscience, religion, thought, belief and opinion." The collective right to freedom of religion is reflected in section 31 of the Constitution and recognizes the right of each person who belongs to a religious community to practice her or his religion with other members of that community and to form, join, and maintain religious associations.^[7] Through the right to freedom of religion ensconced in section 15(3) of the Constitution, the South African state may also enact legislation to recognize traditional and religious marriages or personal and family law systems.^[8] The individual and collective rights to freedom of religion are both internally limited in sections 15(3)(b) and 31(2) respectively to the extent that no-one may practice her or his religion in a way that violates other constitutional rights including gender and sex equality; and legislation affording recognition to inter alia religious marriages or personal and family law systems may not be inconsistent with other rights in the Bill of Rights including gender and sex equality.^[9]

In accordance with the right to freedom of religion, African customary marriages were recognized through the enactment of the Recognition of Customary Marriages Act,^[10] which came into force in 2000. Same-sex couples were also afforded the opportunity to access legal rights and obligations that attach to a civil marriage^[11] by being able to enter into civil unions registered under the Civil Union Act.^[12] Why then has the South African state not also recognized Muslim marriages despite repeated calls by South African Muslim communities for recognition of Muslim marriages? Why has it taken a court to instruct the South African state to enact legislation to recognize Muslim marriages? What, if any, are the human rights implications of the judgment? And what difference, if any, will the judgment make in the lives of Muslims?

In seeking to address the above questions, particular reference is made to the WLCT judgment, which relates to the primary case in the aforementioned consolidated application. The paper commences by providing a brief historical context to the non-recognition of Muslim marriages in South Africa, followed by a short commentary on the judicial intervention provided prior to the WLCT judgment, in which the courts attempted to afford some relief to Muslim parties, especially women. A synopsis of the effects of non-recognition of Muslim marriages is also offered as well as the state initiatives undertaken thus far relating to the recognition of Muslim marriages in South Africa. Thereafter, the consolidated application with particular attention to the WLCT case and its implications for human rights is discussed. I argue that despite the ground-breaking nature of the judgment, it does not go far enough to ensure sufficient protection for the human rights of Muslim women and that the manner in which the Western Cape High Court’s orders is implemented could perpetuate the undermining of Muslim women’s human rights.

I. Historical Context

The WLCT matter is a culmination of more than two decades of case law, which involved claims by Muslim wives for recognition of their Muslim marriages or aspects of their Muslim marriages.^[13]

The Muslim communities in South Africa originate from slaves and indentured labourers imported by colonialists from various parts of South Asia and South East Asia during the seventeenth and eighteenth centuries. Throughout the nineteenth century, Muslims also entered South Africa as traders from South Asia. Thereafter, they came to South Africa as immigrants from various parts of Africa.^[14] Presently, the Muslim communities comprise the largest religious minority in South Africa.^[15]

Non-recognition of Muslim marriages dates back to the colonial period when the only form of marriage that was considered worthy of legal recognition and protection was one that conformed to a Christian paradigm of marriage, namely heterosexual and monogamous.^[16] This approach to marriage was confirmed by the apartheid-era Appellate Division per Trengove JA in the case of Ismail v. Ismail.^[17] In particular, Trengove JA held that any contract and custom arising from a potentially polygynous marriage ran contrary to public policy.^[18] This included a potentially polygynous marriage such as a Muslim marriage. Thus, Trengove JA deemed a Muslim marriage contract and customs arising from that contract to be contra bonos mores and unenforceable.^[19] 

The apartheid-era conception of public policy was subsequently rejected by the democratic-era judiciary. In the case of Ryland v. Edros, Farlam J on behalf of the Cape High Court (as it then was) found that the notion of public policy as understood by the apartheid-era judiciary could no longer hold water in a democratic and plural society such as South Africa, which is underscored by the constitutional values of equality and appreciation of diversity.^[20] Farlam J held that South Africa’s post-1994 public policy as defined by the parameters of its constitutional democracy permits the recognition and enforceability of a Muslim marriage contract.^[21]

Following Ryland, a gamut of cases was adjudicated across South Africa over a period of more than 20 years, in which the South African judiciary followed the example set by Farlam J in respect of judicial treatment of Muslim marriages.^[22] South Africa consequently witnessed the unilateral Islamic law obligation of a husband to maintain his wife being considered worthy of legal recognition,^[23] and Muslim wives being included in the definition of "spouse" and "surviving spouse" for the purpose of specific legislation that made provision for spouses. For instance, Muslim wives in monogamous and polygynous Muslim marriages can now claim maintenance against their husbands through the Maintenance Act.^[24] Monogamous and polygynous Muslim spouses can inherit from their deceased spouses’ intestate estates in terms of the Intestate Succession Act.^[25] Muslim wives in monogamous Muslim marriages can claim maintenance from their deceased husband’s intestate estates via the Maintenance of Surviving Spouses Act.^[26] Muslim monogamous and polygynous surviving spouses may also benefit under the Wills Act,^[27] which enables a surviving spouse to acquire the inheritances of their deceased spouse’s descendants who are named as heirs in the deceased spouse’s will but who renounce their benefits in favour of the surviving spouse of the deceased.

In the post-1994 period, the South African judiciary therefore afforded protection to both monogamous and polygynous Muslim spouses. This approach accords with the constitutional value of diversity, which in the family law context acknowledges the pluralism of family forms; that multiple forms of marriage exist; and that a spouse in those marriages is entitled to legal protection.^[28] However, the judiciary has not provided wholesale legal recognition to Muslim marriages because it is of the view that such recognition should be undertaken by the legislature.^[29] The judiciary has therefore only enabled limited recognition to certain aspects of a Muslim marriage such as the Muslim marriage contract, terms arising from the marriage contract such as spousal nafaqah (maintenance)^[30] and recognising Muslim wives and husbands as spouses for particular legislation.

II. Effects of Non-Recognition of Muslim Marriages

Failure to recognize Muslim marriages engenders negative effects for Muslims, particularly marginalized members of the Muslim communities such as women and children. Some of the negative effects include the following:

First, as noted by the WLCT in the consolidated application, the best interests of minor children born of Muslim marriages are not automatically subject to court oversight when there is a Muslim divorce.^[31] In contrast, a civil divorce or legal dissolution of an African customary marriage that involves minor children immediately activates intervention by the Family Advocate’s Office followed by judicial oversight to ensure that the child’s best interests are protected.^[32]

Secondly, Muslim spouses cannot automatically access the benefits of civil legislation as spouses in civil and African customary marriages are able to. This is because the legality of civil and African customary marriages immediately confers the status of lawful spouse on husbands and wives in those marriages, which brings them within the ambit of legislation that makes provision for spouses. In contrast, a spouse in a Muslim marriage must first approach a High Court and ask that she or he be recognized as a spouse for the purpose of particular legislation and/or to access legislative benefits that accrue to spouses. This means that Muslim parties can only be afforded ad-hoc relief on a case-by-case basis, which requires resources that are not available to all.

Thirdly, Muslim spouses cannot automatically access benefits that are permitted under Islamic law that attach to Muslim family law.^[33] For example, a Muslim marriage contract must contain an agreement relating to the payment of mahr (dower).^[34] When the benefit such as the aforementioned mahr arises from the Muslim marriage contract, a Muslim wife must approach the High Court to institute a claim, which again has cost implications. Only women who have the necessary financial and emotional resources are likely to pursue such a claim.

Fourthly, Muslim wives cannot challenge gender-discriminatory Islamic law rules and practices that ascribe to Muslim family law in a civil court. For instance, traditional and conservative interpretations of Muslim divorce^[35] confer unequal rights between men and women and are adopted by most of the South African ʿulamāʾ.^[36] In South Africa, men often affect divorce through triple ṭalāq,^[37] which is accepted as an Islamically permissible form of divorce by the South African ʿulamāʾ. Triple ṭalāq is a pernicious form of ṭalāq that entails the utterance of the word "ṭalāq" (divorce) thrice in succession in one sitting, which immediately and irrevocably terminates the marriage without providing the wife with any form of defence or recourse to prevent the dissolution of the marriage. The triple ṭalāq therefore negates the wife’s right to audi alteram partem (the right to be heard). Should the parties decide to reconcile, the wife must first undergo ḥilāla, which requires her to marry another man and for her subsequent marriage to be terminated before the parties are permitted to remarry.^[38] Men are not similarly required to observe ḥilāla.

Although men are also not expected to obtain anyone’s permission to issue ṭalāq, it has become customary in South Africa for them to acquire a ṭalāq certificate from the South African ʿulamāʾ as confirmation that a ṭalāq has taken place. In cases of dispute regarding the validity of the ṭalāq, the ʿulamāʾ usually make a pronouncement whether the ṭalāq is valid or not. The dispensing of the ṭalāq certificate and decisions relating to the validity of the ṭalāq are sometimes undertaken in an arbitrary manner, usually with disastrous consequences for women and children who have no recourse to appeal the decisions in a secular court due to the non-recognition of Muslim marriages in South Africa. The arbitrary nature in which the South African ʿulamāʾ can dispense ṭalāq certificates and the kind of harm that can be caused by that was illustrated in the case of Faro v Bingham N.O. and Others.^[39] The Faro case was adjudicated in the Western Cape High Court in 2013 and is one of the cases in the consolidated application.^[40] In the Faro case, the applicant, Faro was married to the deceased by Muslim rites only.^[41] When the applicant tried to access the benefits of the Intestate Succession Act^[42] and the Maintenance of Surviving Spouses Act,^[43] the Master of the High Court refused to recognize her claims because the Muslim Judicial Council (MJC),^[44] which is one of the main ʿulamāʾ bodies in the Western Cape confirmed that her marriage to the deceased was annulled by way of ṭalāq.^[45] As a result, the applicant was rendered homeless and her children were taken into state care.^[46] In the context of an application to be recognized as a spouse under the Intestate Succession Act and the Maintenance of Surviving Spouses Act, the applicant disputed the validity of the ṭalāq on the basis that it was revoked by the deceased during her ʿidda period.^[47] On assessing the evidence placed before it, the Court found that the ṭalāq was indeed revoked and that the parties were still married to each at the time of the deceased’s death.^[48] The Court therefore found that Faro could inherit as a surviving spouse in terms of the Intestate Succession Act and the Maintenance of Surviving Spouses Act.^[49]

In the consolidated application, Faro also argued that the Master’s decisions arising from enquiries into the validity of Muslim marriages for the purpose of assessing claims in respect of the Intestate Succession Act and the Maintenance of Surviving Spouses Act amounted to administrative action as envisaged by the Promotion of Administrative Justice Act.^[50] Faro asked for an order that the Minister of Justice and Constitutional Development put into place policies and procedures to regulate enquiries by the Master of the High Court into the validity of Muslim marriages.^[51] The Western Cape High Court disagreed that there was any statutory obligation on the Minister of Justice and Constitutional Development to implement the requested policies and procedures and accordingly denied the order.^[52] In the absence of state regulation of Muslim marriages and divorces, the Court’s order will most likely result in the Master’s office continuing to be guided by the arbitrary manner in which the ṭalāq mechanism is approached within South African Muslim communities. Consequently, Muslim widows who face challenges to the validity of their marriages will suffer the brunt of a lack of administrative measures when trying to access the benefits of the Intestate Succession Act and the Maintenance of Surviving Spouses Act.

Unlike men, women in South Africa have to obtain permission to divorce either by acquiring their husbands’ consent to exercise khulʿ or tafwīḍ al-ṭalāq or by obtaining faskh from the ʿulamāʾ. Tafwīḍ al-ṭalāq is usually included as a provision in a marriage contract. However, anecdotal observation suggests that most South African Muslims do not enter into written marriage contracts, either because they are unaware of their right to do so or because of power imbalances in the relationship where men refuse to sign a written contract to regulate their marriages.^[53] The parties tend to sign only a Muslim marriage certificate that contains a stipulation relating to the payment of mahr. Thus, Muslim husbands in South Africa rarely delegate their right of ṭalāq to their wives. If a South African wife wishes to exit her Muslim marriage, she must apply to the ʿulamāʾ for faskh to dissolve the marriage on an Islamically permissible ground. The South African ʿulamāʾ establish Muslim tribunals to adjudicate faskh applications. In the event that the husband opposes the wife’s application, the ʿulamāʾ tend to not grant faskh even when Islamic law grounds appear to exist for the granting of the faskh. Instead, the ʿulamāʾ encourage wives to attempt reconciliation with their husbands.^[54] It is therefore difficult for a wife to obtain faskh in South Africa. In the few instances where a Muslim tribunal decides a matter in favour of a wife, non-recognition of Muslim marriages renders the decision unenforceable in a court of law.^[55] A South African Muslim wife may also affect khulʿ but this form of Muslim divorce is not as commonly invoked as faskh. Also, khulʿ is only deemed valid by the South African ʿulamāʾ if the husband consents to it. It is thus easier in South Africa for men to end their Muslim marriages than it is for women.

Unequal treatment between men and women that attach to a Muslim marriage in South Africa, which militates against women, also relates to, among others, consent to marriage, mahr, nafaqah, matrimonial property regimes, and ʿidda, each of which is discussed briefly below.

A traditional and conservative understanding of Islamic law requires the consent of the adult bridegroom-to-be for a valid Muslim marriage to be entered into, while the consent of the bride-to-be is not always required.^[56] For instance, the Shāfi’ī school of thought, which is predominant in the Western Cape province in South Africa, requires the consent of the walī (guardian) of a female who has never been married for the marriage to be considered valid, regardless of the female’s age and whether or not she consents to the marriage.^[57] Fortunately, the latter aspect of the consent requirement no longer appears to be practiced in South Africa. However, the bride’s walī or whoever the walī designates as his wakīl (guardian’s delegate) must still, in addition to the bride, consent to the marriage. Furthermore, the walī is required to be male (usually the bride-to-be’s father), unless the bride-to-be has no paternal male relative.^[58] In contrast, the consent of the walī of the bridegroom-to-be is not similarly required. The consent of the bridegroom-to-be is considered sufficient.^[59]

The above description of consent to marriage has evolved into a practice within the South African Muslim communities where only males attend the nikāḥ (marriage ceremony). In the few instances where females attend, they are not part of the ceremony and sit away from the men, usually in another part of the venue from where the nikāḥ is taking place. The bride-to-be’s walī or his wakīl acts as her proxy and offers consent to the marriage on her behalf. The bridegroom-to-be can be involved in the nikāḥ if he wishes. However, he may choose to have his walī or his walī’s wakīl contract the nikah on his behalf and in his presence. A similar choice is not bestowed on the bride-to-be. Her walī or the latter’s wakīl is expected to contract the nikah and sign the Muslim marriage certificate on the bride-to-be’s behalf. In the meantime, the bride-to-be is expected to remain out of sight, or at the very least, not be heard.

In the case of mahr, most of the South African ʿulamāʾ accept the traditional and conservative Islamic law implication attached to the payment of mahr, which requires a wife to be sexually subservient to her husband.^[60] Furthermore, the husband’s Islamic law unilateral obligation to provide nafaqah to his wife in turn requires the wife to be obedient to her husband.^[61] In the absence of a written provision regulating the matrimonial property regime of the parties, the Muslim marriage is deemed to be one where the estates of the parties are kept separate when they enter the marriage, during the marriage, and at dissolution of the marriage.^[62] In most Muslim marriages in South Africa, assets are usually acquired in the husband’s name. Thus, when the marriage terminates, women are left financially destitute. Furthermore, the traditional and conservative interpretation of Islamic law that does not provide the wife with a right to post-ʿidda spousal nafaqa is adopted by the ʿulamāʾ in South Africa since the husband’s duty to support his wife is considered to have ended after the expiration of the ʿidda period.^[63] This compounds the wife’s financial impoverishment when the marriage ends. Moreover, ʿidda (and as previously mentioned ḥilāla) are burdens that only women are expected to bear under a traditional and conservative understanding of Islamic law.

It is evident from the above that non-recognition of Muslim marriages in South Africa has effectively left the regulation of the body of Muslim family law to Muslim communities. Since the ʿulamāʾ strongly influence the way in which Muslim marriages and divorces are practiced in the South African Muslim communities, their traditional and conservative interpretations of Islamic law have resulted in rules and practices that discriminate against women, some of which are described above. Non-recognition of Muslim marriages and limited judicial recognition to aspects of Muslim marriages therefore means that Muslim family law is either not regulated at all or is not regulated sufficiently by the South African legal system.^[64] This in turn means that gender discriminatory Islamic law rules and practices are maintained within a private domain that is not held publicly accountable, particularly to human rights standards. Muslim parties, especially women, are thus unable to access the South African legal system to regulate the consequences of their Muslim marriages and divorces in a way that will protect and promote women’s human rights.

The above are strong indicators that legal recognition and regulation of Muslim marriages in South Africa is necessary. Although, as mentioned previously, the judiciary has provided relief wherever possible to parties married by Muslim rites, it has refrained from amending existing law to afford full legal recognition to Muslim marriages. Instead, as also mentioned previously, the judiciary has adopted the position that recognition of Muslim marriages should be affected by the legislature.^[65] Furthermore, there are some forms of relief that a civil court would not be able to provide without an "empowering basis,"^[66] such as legislation that recognizes and regulates the features of a Muslim marriage and divorce. For example, a civil court neither has legal nor religious authority to grant a Muslim divorce. However, if legislation were to be enacted to make provision for the dissolution of a Muslim marriage by a civil court and such legislation elicited buy-in from the majority of the ʿulamāʾ bodies in South Africa, a civil court would be able to award a Muslim divorce that would be deemed acceptable within the Muslim communities and would be legally enforceable. An example of legislation that proposes to enable a civil court to grant Muslim divorce is the Muslim Marriages Bill,^[67]  which is discussed briefly in the following sections.

For the past 25 years since the inception of South Africa’s constitutional democracy in 1994, the South African state has from time to time initiated one or other initiative purporting to lead to the recognition of Muslim marriages. As illustrated below, the timing of each initiative appears to coincide with the periods linked to South Africa’s national elections, which occur every five years. It is therefore hard not to surmise, as indicated in the introduction to this paper, that the primary motivation underlying state initiatives relating to the recognition of Muslim marriages may be to solicit votes among the South Africa Muslim electorate.

III. State Initiatives Relating to the Recognition of Muslim Marriages

The first state initiative was the establishment of a Muslim Personal Law Board in 1994. The Muslim Personal Law Board was required to draft legislation to recognize Muslim Personal Law. Due to ideological differences relating to Islamic law and human rights, the Muslim Personal Law Board disbanded within a year of its formation.^[68]

Several years later, in 1999, the South African Law Reform Commission constituted a Project Committee to draft legislation to recognize and regulate Muslim marriages.^[69] In 2003, the South African Law Reform Commission Project Committee submitted a draft Muslim Marriages Bill (hereafter referred to as the "first Muslim Marriages Bill") to the Ministry of Justice and Constitutional Development.^[70] The first Muslim Marriages Bill was the negotiated result of protracted discussions between the South African Law Reform Commission Project Committee and various sections of civil society and Muslim communities in South Africa.

In about 2005, the Commission on Gender Equality attempted to offer an alternative to the Muslim Marriages Bill by drafting a Recognition of Religious Marriages Bill, which it submitted to the Ministry of Home Affairs.^[71] The Recognition of Religious Marriages Bill purports to afford recognition to all religious marriages by allowing religious communities to regulate their own religious marriages while requiring the dissolution of the marriages to be regulated through a civil court on terms similar to those contained in the Divorce Act.^[72] The Recognition of Religious Marriages Bill did not appear to elicit support from any of the South African religious communities and appears to have been shelved.^[73]

By 2009, when no further progress appeared to be on the horizon for the recognition of Muslim marriages, the Women’s Legal Centre Trust (WLCT) launched an application in the Constitutional Court, asking for direct access to the Court and that the Court order the South African government to enact legislation to recognize and regulate the consequences of Muslim marriages.^[74] The WLCT is a non-profit trust and manages the Women’s Legal Centre (WLC), which is a non-profit law centre that conducts public interest litigation to protect and advance the human rights of women.^[75] The Constitutional Court found that the disputed issues raised in the matter involved factual as well as legal ones. The Court therefore held that it was not appropriately placed as a court of first and final instance to adjudicate the disputed issues, which may require the tendering of evidence. The Court accordingly dismissed the application for direct access.^[76]

Although the WLCT was not successful in the Constitutional Court, it appears that the application spurred the Department of Justice and Constitutional Development to apply its mind to the Muslim Marriages Bill. In 2009/2010, the Department of Justice and Constitutional Development unilaterally affected changes to the first Muslim Marriages Bill without eliciting input from any of the stakeholders who were consulted about the first Muslim Marriages Bill. The amended Muslim Marriages Bill (hereafter referred to as the "second Muslim Marriages Bill") was gazetted in 2011 and the public was invited to submit comments on it.^[77] Both the first and second Muslim Marriages Bills purported to comprehensively recognize and regulate the consequences of a Muslim marriage. Even though the majority of mainstream ʿulamāʾ bodies represented by the United Ulama Council of South Africa (UUCSA)^[78] expressed support for the Muslim Marriages Bill,^[79] the South African state has taken no further steps to process the Muslim Marriages Bill for parliamentary consideration. The reasons for the state’s inaction are provided later in the paper when the state’s arguments in the consolidated application are discussed.

I have elsewhere offered an analysis of the different options for recognising Muslim marriages including the Muslim Marriages Bill and the Recognition of Religious Marriages Bill.^[80] Without duplicating the analysis in this paper in great detail, I argue that the Muslim Marriages Bill offers better protection for women’s rights than the Recognition of Religious Marriages Bill. This is because the Muslim Marriages Bill purports to recognize and comprehensively regulate the features of a Muslim marriage and divorce while the Recognition of Religious Marriages Bill enables the regulation of different religious marriages and religious divorces to be undertaken by the religious communities themselves.^[81] Under the Muslim Marriages Bill, women will be able to enforce their Islamic law rights to Muslim divorce, among others, through a civil court. Similarly, since features of the Muslim marriage and divorce would be regulated through the Muslim Marriages Bill, gender-discriminatory rules and practices that are contained in the legislation could be challenged in a civil court and reformed in a way that could be consistent with human rights norms. In contrast, if religious communities are permitted to regulate their religious marriages and religious divorces according to their understanding of religious law requirements, as is made possible under the Recognition of Religious Marriages Bill, it could result in gender-discriminatory religious rules and practices being maintained within those communities. For instance, although the Recognition of Religious Marriages Bill proposes terms similar to those contained in the Divorce Act for a legal dissolution of a religious marriage,^[82] a pronouncement of a religiously valid divorce can only be obtained from within the religious communities themselves. Therefore, women would face the same impediments to accessing religious divorce within their religious communities under the Recognition of Religious Marriages Bill as they do currently. The difficulties that Muslim women in South Africa face to obtain Muslim divorce has already been raised. Women in Jewish and Hindu communities in South Africa face similar difficulties, although for different reasons. Even though Jewish and Hindu parties appear to have equal rights in relation to divorce, due to the potentially polygynous nature of Jewish and Hindu marriages, the impact of Jewish and Hindu divorce rules on men and women is unequal. For example, while Jewish husbands and wives each require the other’s consent to obtain a get (Jewish divorce), if a wife withholds her consent, the husband may remarry according to Jewish law, but the wife may not similarly remarry if it is her husband who is withholding consent to divorce.^[83] Under Hindu law in South Africa, neither party is permitted to divorce.^[84] Yet, the Hindu husband may marry other women while the Hindu wife is precluded from marrying other men.^[85] So, Muslim and Jewish women who experience difficulty in obtaining religious divorce and Hindu women who are not permitted to divorce under Hindu law in South Africa end up being trapped in unwanted marriages without the possibility of being able to move on with their lives while their husbands have the religious right to do so.

Several years later, just weeks before South Africa’s fifth national elections in 2014, the Department of Home Affairs launched what is now known as the "Imām Project."^[86] The Department of Home Affairs invoked section 3(1) of the Marriage Act,^[87] which enables Muslim religious leaders such as imāms to be authorized as marriage officers so that they may register civil marriages.^[88] The Department of Home Affairs suggested that registration of imāms would legalize Muslim marriages.^[89] This was a fallacy. Even when an imām performs a nikāḥ and simultaneously registers a civil marriage, only the latter is legal. The Muslim marriage remains unlawful, which as mentioned previously, means that Muslim wives cannot automatically access rights attached to the Muslim marriage contract and need to approach the High Court for relief.

The most recent state initiative during the run-up to South Africa’s sixth national elections in 2019 was the establishment of a South African Law Reform Commission Advisory Committee and the publication of an Issue Paper to explore the possibility of a single marriage statute to afford recognition to all marriages in South Africa.^[90] The South African Law Reform Commission suggests that it is exploring the possibility of a single marriage statute, which could take one of two forms: a) a "single or unified marriage act" that would comprise "a unified set of requirements (and possibly consequences)" for all marriages; or b) an "omnibus or umbrella marriage statute" that would contain "different chapters which reflect the current diverse set of legal requirements for and consequences of civil marriages, civil unions, customary marriages, Muslim, and possibly other religious marriages."^[91]

The first option proposed by the South African Law Reform Commission, namely a "single or unified marriage act," appears to emanate from the current Minister of Home Affairs, Naledi Pandor’s desire for marriages to adhere to uniform norms and to ensure that all marriages in South Africa are registered and captured on the Department of Home Affairs data system.^[92] She formulates her concerns with reference to the doctrine of equality by suggesting that all marriages should meet the same requirements.^[93] She also suggests that

the state should have no interest in who one marries, how the religious or cultural rituals are conducted and should therefore have no interest in giving legal legitimacy to one or other practice in relation to the conclusion of a marriage.^[94]

The underlying premise as conveyed by Minister Pandor for the proposed "single or unified marriage act" is problematic for four reasons. First, it is tantamount to suggesting that the Marriage Act and common law definition of marriage should be amended to make provision for the recognition of all forms of marriages in South Africa. This will not solve the current difficulties that women face within their religious communities relating to discriminatory religious rules and practices; the most pressing being access to religious divorce. Secondly, while the proposal may meet the requirements for formal equality (that likes be treated alike), it will not promote substantive equality, which is the approach to equality that is consistent with South Africa’s constitutional imperatives. As indicated by the South African Constitutional Court:

[A]lthough a society which affords each human being equal treatment on the basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting upon identical treatment in all circumstances before that goal is achieved. Each case, therefore, will require a careful and thorough understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall impact is one which furthers the constitutional goal of equality or not.^[95]

The Constitutional Court also acknowledged that

The value of non-sexism is foundational to our Constitution and requires a hard look at the reality of the lives that women have been compelled to lead by law and legally-backed social practices. This, in turn, necessitates acknowledging the constitutional goal of achieving substantive equality between men and women.^[96]

If the impact of equal treatment results in inequality, particularly where the inequality exacerbates disadvantage among marginalized members of society such as women in religious communities then differential treatment is justified. Religious rules and practices particularly of a discriminatory nature will not be able to be regulated through a single or unified marriage act and could continue unabated within religious communities. For instance, a single or unified marriage act will not enable women in religious marriages to obtain religious divorce. In this way, a single or unified marriage act will not be responsive to the lived realities of all women in South Africa, which is an imperative of substantive equality. Thirdly, the proposal for a single or unified marriage act promotes assimilation of the religious identity of religious marriage and religious divorce into the common law identity of a civil marriage and civil divorce, both of which are underscored by a Judeo-Christian paradigm of marriage. This is inconsistent with the ethos of legal pluralism and the celebration of diversity, which are promoted by the South African Constitution.^[97] Fourthly, the proposal assumes that the state has no responsibility to protect marginalized members within communities against harmful practices within those communities. In fact, it ignores the private and public nature of the consequences of marriage. The Constitutional Court notes that marriage "bring[s] the most intense private and voluntary commitment into the most public, law-governed and state-regulated domain."^[98] Marriage is thus deemed to be constitutionally significant because of its private and public importance.^[99] To not bring religious marriages into the public "state-regulated domain" where they can be held accountable to human rights standards underscored by the foundational values of the Constitution, namely dignity, equality, and freedom, would mean that discriminatory religious family law rules and practices can remain hidden in the private sphere.

The second option for a single marriage statute, namely an "omnibus or umbrella marriage statute," proposes to accommodate the diverse forms of marriages in South Africa by incorporating chapters that each deal with a different type of marriage. In effect, this could mean incorporating existing legislation into the omnibus or umbrella marriage statute such as the Marriage Act,^[100] Divorce Act,^[101] Civil Union Act,^[102] and Recognition of Customary Marriages Act^[103] that respectively make provision for opposite-sex marriages, same-sex unions and African customary marriages. This could also be an opportunity for the South African Law Reform Commission to amend existing legislation that is potentially problematic, such as the Recognition of Customary Marriages Act, to make it more responsive to the lived realities of those who enter into the marriages.^[104] Additional chapters could be included that each deal with different types of religious marriages. Some religious marriages may require more or less regulation than others. To ensure that the omnibus or umbrella marriage statute is appropriately responsive to the nuances of the different types of marriages and caters for the specific needs within the relevant communities, in-depth consultation with stakeholders within the relevant communities and broader civil society is required. This could take several more years. In the meantime, the Muslim Marriages Bill is capable of ameliorating many of the difficulties experienced by Muslim women. The Muslim Marriages Bill could therefore be enacted now and incorporated later into the omnibus or umbrella marriage statute.

The WLC notes that "it is regularly approached by [Muslim] women who experience hardships and are left with no remedies."^[105] The suffering of women resulting from non-recognition of Muslim marriages and the delay by the South African state to afford legal recognition to Muslim marriages prompted the consolidated application in 2018 involving the WLCT, Faro and Esau cases, in which the applicants asked the Western Cape High Court to order legislative intervention to recognize and regulate the consequences of Muslim marriages.^[106] Several organizations supported the application as amicus curiae including the United Ulama Council of South Africa (UUCSA), the Commission on Gender Equality, the Law Society of South Africa, South African Lawyers 4 Change, and the Muslim Assembly.^[107] Salient arguments considered  by the Western Cape High Court, the Court’s decision, and the reasoning underscoring the decision are provided below.

IV. The Consolidated Application: Women's Legal Centre Trust v. President of South Africa (WLCT), Faro v. Bingham (Faro), and Esau v. Esau (Esau)

As the primary applicant in the consolidated application, the WLCT argued that failure to recognize Muslim marriages as legally valid resulted in the state’s abdication of its section 7(2) and 237 constitutional obligations.^[108] Section 7(2) of the South African Constitution requires the state to "respect, protect, promote and fulfil the rights in the Bill of Rights." Section 237 of the Constitution requires "[a]ll constitutional obligations … [to] be performed diligently and without delay." The WLCT contended that the constitutional rights affected by the state’s failure to recognize Muslim marriages includes equality (section 9), access to courts (section 34), best interests of the child (section 28(2)), dignity (section 10), and freedom of religion (section 15).^[109] The WLCT’s arguments, the South African state’s responses and the Court’s finding in respect of each of the aforementioned rights is discussed below.

a) Equality

The equality claim was based on the WLCT’s argument that non-recognition of Muslim marriages differentiates between spouses in civil marriages on the one hand and monogamous and polygynous Muslim spouses on the other hand as well as between polygynous spouses in African customary marriages and polygynous spouses in Muslim marriages.^[110] The test for determining a violation of the equality clause, particularly section 9(1) of the Constitution, which recognizes everyone’s right to equality before the law and to "equal protection and benefit of the law," and section 9(3) of the Constitution, which proscribes unfair discrimination on the grounds of among others, religion, marital status, gender and sex has been established by the South African Constitutional Court in the case of Harksen v. Lane NO and Others.^[111]

Guided by the aforementioned Harksen test, the WLCT contended the following: The differentiation between the aforementioned categories of spouses is based on grounds of religion, marital status, gender and sex.^[112] Since these are listed grounds for unfair discrimination contained in section 9(3), the discrimination arising from the differentiation is presumed to be unfair in terms of section 9(5) of the Constitution.^[113] The unfair discrimination is of a direct and indirect nature.^[114] Direct discrimination on the basis of religion and marital status arises from the fact that non-recognition of Muslim marriages negatively affects Muslim wives, husbands, and children.^[115] Indirect discrimination on the basis of gender and sex results from Muslim women being disparately affected by the non-recognition of Muslim marriages vis-à-vis Muslim men.^[116] For example, gender-discriminatory Islamic law rules and practices described earlier such as unequal access to divorce negatively affect Muslim wives while protecting Muslim husbands.

In response, the South African state averred that spouses in a Muslim marriage have the opportunity to enter into civil marriages.^[117] The state’s defence rested on three ways in which South African Muslims could enter into a civil marriage or union while simultaneously contracting a Muslim marriage. Muslim parties can a) register a civil union in terms of the Civil Union Act; or b) register a civil marriage under the Marriage Act with an authorized marriage officer such as a magistrate before or after concluding their Muslim marriage;^[118] or c) have their nikāḥ officiated by a person who is a designated marriage officer registered under section 3(1) of the Marriage Act.

Until 2014, hardly any imāms were registered as marriage officers because they viewed civil marriages as un-Islamic primarily for the following two reasons:^[119] First, the default matrimonial property regime for a civil marriage is in community of property, which conflicts with the traditional and conservative Islamic law rule that the estates of spouses must be kept separate at all times.^[120] Second, marriage officers are not permitted to register polygynous marriages,^[121] which is permissible under a traditional and conservative interpretation of Islamic law,^[122] and is practiced among South African Muslim men. Yet, the Department of Home Affairs claims that more than 100 imāms across South Africa were trained and registered as marriage officers through the previously discussed "Imām Project."^[123]

Through an informal investigation conducted by the WLC of the implementation of the "Imām Project," it appears that the Department of Home Affairs may have persuaded the imāms that they could overcome the aforementioned anti-Islamic impediments in two ways, namely a) by requiring parties to enter into antenuptial contracts to register their marriages as out of community of property without accrual, which is tantamount to maintaining separate estates; and b) that they could continue to perform polygynous Muslim marriages but need only register one of the marriages under the Marriage Act.^[124] This means that subsequent polygynous Muslim marriages would not be legally recognized and the polygynous wives who are not party to the civil marriage would be without legal protection.

The WLCT’s investigation also reveals that few of the imāms who are authorized to register civil marriages are in fact registering civil marriages.^[125] Most of the imāms who are marriage officers insist that the parties conclude a marriage out of community of property without accrual. As noted previously, the separate estates type matrimonial property regime has a disparate impact on Muslim women. In fact, the Muslim Judicial Council (MJC) drafted a pro forma marriage contract that parties are required to sign before MJC imāms are willing to register a civil marriage.^[127] In addition to requiring the parties to register a marriage out of community of property without accrual, the pro forma marriage contract requires women to waive their Islamic law rights as wives and their civil rights as spouses. For instance, under Islamic law, a wife may claim compensation from her husband for labour that she performs in the home or any contributions that she makes for which he is responsible under his spousal nafaqah obligation.^[128] The pro forma marriage contract contains a clause that expects a wife to relinquish her rights to claim such compensation.^[129] The pro forma marriage contract also requires the wife to surrender her civil rights under the Intestate Succession Act^[130] and Maintenance of Surviving Spouses Act^[131] in the event that her husband predeceases her.^[132] Thus, the WLCT argued that the MJC’s pro forma marriage contract is prejudicial to women.^[133] In fact, it is arguably unconstitutional on the basis that it unfairly discriminates against Muslim wives on the grounds of sex and/or gender. Accordingly, the WLCT asked the Western Cape High Court to declare the MJC’s pro forma marriage contract contrary to public policy and unenforceable at law.^[134] However, the Court dismissed the claim on the basis that it could not properly interrogate the pro forma marriage contract since the relevant parties involved in the contract were not before the court.^[135] Hopefully the WLC (or another not-for-profit organization) will consider proceeding with a separate claim against the MJC to have their pro forma marriage contract declared contrary to public policy and unconstitutional. The horizontal application of the South African Constitution makes it possible for a constitutional claim to be instituted by one private party against another.^[136]

Notwithstanding the Western Cape High Court’s ruling on the MJC’s pro forma marriage contract, the Court rejected the state’s defence that Muslims can choose to register a civil marriage and could derive legal protection through that avenue for the following reasons:^[137] First, the Court found that the option to register a civil marriage is not available to polygynous Muslim spouses since a civil marriage only affords legal recognition to de facto monogamous marriages.^[138] Secondly, the Court observed that not all Muslim women in South Africa are aware that their Muslim marriages are not legally protected.^[139] Thirdly, the Court noted that even when Muslim women realize that they need a civil marriage to access legal protections, unequal bargaining power between spouses could result in Muslim husbands refusing to enter into civil marriages thereby preventing women from being able to exercise a choice to register a civil marriage.^[140] Consequently, few South African Muslims avail themselves of the opportunity to enter into civil marriages and the majority of South African Muslims, regardless whether they are in monogamous or polygynous marriages, still enter only into Muslim marriages.^[141] The Court therefore found that the civil marriage option does not provide an adequate solution for the challenges presented by the non-recognition of Muslim marriages.^[142] The Court held that "the assessment of the constitutional obligation [to equality before the law, equal protection and benefit of the law, and to not be unfairly discriminated against] cannot be negated by the women’s choice not to register their marriages."^[143] The Court accordingly found that the right to equality, particularly the right to not be unfairly discriminated against, had been infringed.^[144]

In considering the second leg of the Harksen test; whether or not the infringement could be justifiably limited under section 36 of the Constitution,^[145] the Western Cape High Court accepted the WLCT’s contention that the state had not advanced any legitimate governmental purpose for infringing the equality provision.^[146] The Court held that the state had failed to justify the unfair discrimination and found that continued non-recognition of Muslim marriages violates the right to equality.^[147]

b) Access to Courts and the Best Interests of the Child

Non-recognition of Muslim marriages also has an overlapping effect on the right to access to courts as contained in section 34 of the South African Constitution and a child’s right to have her or his best interests protected as entrenched in section 28 of the Constitution.

Section 34 provides:

Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

Section 28(2) provides:

A child’s best interests are of paramount importance in every matter concerning the child.

As argued by the WLCT, the overlapping effect on the above two rights is caused by the preclusion of spouses in Muslim marriages from accessing a civil court to resolve disputes arising from their Muslim marriage and/or Muslim divorce relating to, among others,  proprietary rights, nafaqah and guardianship of-, custody of-, and access to minor children born of the Muslim marriage.^[148] This especially has a disparate effect on Muslim women and children. For instance, as mentioned previously, Muslim women are unable to challenge adverse decisions emanating from Muslim tribunals and as previously noted by the WLCT, children born of only Muslim marriages do not enjoy judicial protection to ensure that their best interests are protected during the dissolution of their parents’ Muslim marriage.^[149] The WLCT pointed out that dissolution of Muslim marriages through Muslim divorce often results in "maltreatment, evictions and economic hardships for women and children of Muslim marriages."^[150] Lack of judicial intervention to regulate the dissolution of Muslim marriages thus compounds the socio-economic difficulties experienced by women and children as a result of non-recognition of Muslim marriages in South Africa.

In light of the above, the Western Cape High Court observed: 

Muslim women are not able to access the system for purposes of dissolving their marriages and regulating consequences thereof … Vulnerabilities still exist, despite the protections that have been availed by the courts by extending consequences of different statutes to spouses in Muslim marriages… [And] [c]hildren in Muslim marriages are … not provided with adequate protection as those in civil and customary marriages enjoy, upon dissolution of the marriage of their parents by way of divorce.^[151]

Thus, the Court found that non-recognition of Muslim marriages violates sections 34 and 28 of the Constitution.^[152]

 c) Dignity

 Dignity is a founding value in the South African Constitution along with equality and freedom.^[153] It is also entrenched in section 10 of the Constitution as a stand-alone right. The WLCT argued that "[t]o treat spouses in Muslim marriages as unworthy of protection of the law devalues, stigmatizes and further marginalises this vulnerably minority group."^[154] In other words, non-recognition of Muslim marriages conveys the message that Muslim spouses are not of equal worth in relation to spouses whose marriages are lawfully recognized. This exacerbates the marginalization of an already marginalized minority community that has suffered historical discrimination on the basis of race and religion. Moreover, Muslim women suffer additional marginalization within the South African Muslim communities as a result of traditional and conservative interpretations and application of Muslim family law rules and practices that weigh against them. South African Muslim women therefore experience multiple marginalization because non-recognition of Muslim marriages increases their marginalization as marginalized members within a marginalized religious community. The Court thus held that continued non-recognition of Muslim marriages infringes against the right to dignity.^[155]

The Western Cape High Court notably observed that the violation of the rights to equality, access to courts, best interests of the child and dignity was caused by the continued non-recognition of Muslim marriages in South Africa and is thus systemic in nature.^[156] In the words of the Court: 

As seen through the cases, the non-recognition of Muslim marriages is historic, persistent and unfulfilled since the beginning of democracy. This is not a single instance, but rather a systemic failure by the State to provide recognition and regulation, potentially effecting millions of people around the country. Marriage concerns a plethora of issues, from status to property, involving a wide range of laws, which are complex and fundamentally important.^[157]

The above observation by the Western Cape High Court is significant in the context of the historical disadvantage suffered by the Muslim communities in South Africa as a result of their Muslim marriages not being recognized since their entry into the country during the seventeenth century. The religious discrimination experienced by South African Muslims also arises from the racial discrimination perpetrated against them during apartheid since most Muslims in South Africa were not classified "white" under  apartheid. As the Constitutional Court has observed, "religious marginalization coincided strongly with racial discrimination, social exclusion and political disempowerment."^[158]

The systemic discrimination caused by the continued non-recognition of Muslim marriages is perpetuated by the South African state’s delay in affording legal recognition to Muslim marriages, which has resulted in especially Muslim women having to experience unnecessary hardships that have not been sufficiently ameliorated by ad-hoc judicial interventions over the last two decades.^[159] The South African state claims that the delay is especially due to lack of consensus about the Muslim Marriages Bill within the Muslim communities.^[160] In its capacity as amicus curiae in the consolidated application, the Commission on Gender Equality pointed out that lack of consensus regarding the Muslim Marriages Bill is insufficient as a reason to not enact legislation to recognize Muslim marriages when non-recognition of Muslim marriages results in a violation of rights against Muslim parties.^[161] Also, non-consensus as a reason for the state’s delay is disingenuous since the state has enacted other pieces of legislation that were equally, if not more contentious. For example, the call for the recognition of same-sex unions and recognizing a woman’s right to choose to terminate her pregnancy elicited huge outcries from religious communities.^[162] Still, the South African state enacted the Civil Union Act, which recognizes same-sex unions and the Choice on Termination of Pregnancy Act,^[163] which gives effect to a woman’s right to choose to abort her foetus during the first three months of pregnancy.^[164] Furthermore, the state’s claim that South African Muslims do not support the Muslim Marriages Bill appears to be inaccurate. As mentioned previously, the United Ulama Council of South Africa (UUCSA) indicated support for the Muslim Marriages Bill in the consolidated application.^[165] At the same time, UUCSA advises that there are aspects of the first Muslim Marriages Bill, which were removed from the second Muslim Marriages Bill that they would want to see reinserted into legislation seeking to recognize Muslim marriages.^[166] Yet, the contentious aspects of the second Muslim Marriages Bill are not insurmountable.^[167] For instance, UUCSA expects the provision in the first Muslim Marriages Bill, which enables opposed Muslim divorces to be adjudicated by a secular court comprising Muslim judges and assessors, to be included in a final version of the Muslim Marriages Bill.^[168] If it is unrealistic to expect only judges who identify as Muslim to adjudicate opposed matters arising from the Muslim Marriages Bill given the few number of Muslim judges available in South Africa, there are creative ways to overcome this hurdle that could render an Islamically permissible solution.^[169] For example, if a judge regardless of religious affiliation were to be guided by Islamic law experts sitting as assessors, the judgment would be informed by and thus rendered consistent with Islamic law. Yet, the South African state has not indicated a willingness to sit down with the relevant stakeholders in the South African Muslim communities to discuss and negotiate possible solutions that could potentially satisfy the interests of the affected parties. Consequently, the WLCT argued in the consolidated application that the delay on the part of the South African state to afford legal recognition to Muslim marriages is unreasonable.^[170]

Persuaded by the applicant’s arguments, the Western Cape High Court found that by failing to afford legal recognition to Muslim marriages, the South African state failed to fulfil its obligations under section 7(2) and 237 of the Constitution.^[171] To comply with its constitutional duties, the state would have to take reasonable and effective steps to ensure that the rights to equality, access to courts, best interests of the child and dignity are complied with.^[172]

The WLCT argued that the most reasonable and effective way for the state to meet its constitutional obligations would be for it to enact legislation that recognizes and regulates the consequences of Muslim marriages.^[173] In opposing the WLCT application, the South African state relied on among others, the following two arguments: Firstly, enactment of legislation that recognizes and regulates Muslim marriages would infringe against section 15(1) of the Constitution, which protects the individual right to freedom of religion.^[174] Secondly, the enabling nature of section 15(3) of the Constitution does not oblige the state to enact legislation to recognize and regulate Muslim marriages or any other religious or traditional marriage or personal and family law system.^[175] The state’s arguments, the WLCT’s responses and the Western Cape High Court’s findings in relation to religious freedom are discussed below.

d) Freedom of Religion

It seems that the basis for the first leg of the South African state’s argument that legislation codifying Muslim family law would infringe against the right to freedom of religion is that codification would presumably preclude South African Muslims from practising their religion in the manner that they choose.^[176] This leg of the state’s argument is self-defeating. The only way that codification of a Muslim marriage and divorce could undermine freedom of religion is if the way in which Muslim family law is currently interpreted and applied within South African Muslim communities is inconsistent with the rights in the Bill of Rights.^[177] As pointed out at the beginning of this paper, the right to freedom of religion is not absolute. The South African Constitution does not permit anyone to practice her or his religion in community with others in a manner that violates other rights in the Constitution, including gender and sex equality. In fact, the Constitutional Court confirmed that freedom of religion "cannot be used to shield practices which offend the Bill of Rights."^[178] Thus, the WLCT argued that "religious practices in respect of divorce which violate the right to equality cannot be justified on the basis of the right to freedom of religion."^[179]

The state’s argument against codification of Muslim family law appears to be an admission that the way in which Muslim family law is presently practiced conflicts with constitutional rights. This is at odds with one of the objectives of family law, which is to afford protection to the most marginalized members of a family.^[180] In the context of Muslim family law, state intervention is necessary to ensure that the constitutional rights of the most marginalized members of the South African Muslim communities, namely women and children, are protected. It has been noted in this paper that judicial relief for parties negatively affected by the non-recognition of Muslim marriages, while helpful, has proven to be insufficient. Furthermore, as observed by the Constitutional Court in Bhe and Others v. Khayelitsha and Others,^[181] judicial intervention on a case-by-case basis is far from ideal because any changes to improve the position of marginalized parties is extremely "slow."^[182] Thus, legislative intervention is required.

At the same time, the Western Cape High Court agreed with the second leg of the state’s argument that section 15(3) of the Constitution does not place an obligation on the state to enact legislation to recognize and regulate religious marriages including Muslim marriages or religious personal and family law systems.^[183] Yet, the Court noted that the Constitution does not prevent the enactment of such legislation.^[184] Indeed, the Court found that the systemic discrimination and rights violations arising from the continued non-recognition of Muslim marriages requires the enactment of legislation to recognize and regulate the consequences of Muslim marriages.^[185] In particular, the Court held that "legislation is the most reasonable and effective way of protecting the rights implicated."^[186]

The WLCT also argued that failure to legislate Muslim marriages may be inconsistent with South Africa’s international and regional law obligations.^[187] South Africa has ratified the main international and regional human rights instruments relating to women’s rights including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),^[188] the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women’s Protocol),^[189] and the Southern African Development Community Protocol on Gender and Development (SADC Protocol).^[190] The aforementioned instruments oblige States Parties to ensure that women and men enjoy equal rights in marriage, family relations and upon dissolution of the marriage. Moreover, the regional protocols require States Parties to enact legislation that enables all marriages including religious marriages to be registered according to national laws.^[191] The Western Cape High Court interpreted the above international and regional obligations as requiring South Africa to enact legislation to recognize Muslim marriages.^[192] The international and regional instruments therefore fortify South Africa’s domestic obligation to legislate Muslim marriages. In order for South Africa to effectively comply with its international, regional, and constitutional obligations, it has to enact legislation that not only recognizes Muslim marriages but also regulates the features and consequences of Muslim marriages within a human rights framework.

V. The WLCT's Claims

In light of the aforementioned arguments presented by the WLCT, the latter put forth several claims. First, the WLCT asked the Western Cape High Court to grant a declaratory order that the South African state failed to fulfil its section 7(2) and 237 constitutional obligations by failing to enact and bring into operation "diligently and without delay" legislation recognizing and regulating Muslim marriages.^[193] Secondly, the WLCT requested the Court to grant an order directing that the South African state prepare, initiate, enact, and bring into operation legislation that provides for the recognition and regulation of the consequences of Muslim marriages within 12 months of the date of judgment.^[194] In opposing the latter claim, the South African state relied on the doctrine of separation of powers. The state argued that a direction from the Court (representing the judiciary as one arm of the state) instructing the executive and/or legislature (representing the two other arms of the state) to enact legislation to recognize and regulate Muslim marriages infringes against the doctrine of separation of powers.^[195] By way of reply, the WLCT contended that the judiciary is under a constitutional obligation to ensure that the arms of state conduct themselves in a constitutionally compliant manner, failing which the Court is obliged to declare the conduct invalid and ensure that an effective remedy is provided.^[196] The Western Cape High Court observed that an order for a legislative remedy would not necessarily dictate to the executive and legislature which form the legislation should take.^[197] The Court took the view that the manner of recognition and regulation would remain within the purview of the legislature and executive.^[198] Thus, the Court did not accept that an order for the enactment of legislation to recognize and regulate Muslim marriages would undermine the doctrine of separation of powers.^[199]

The South African state also argued that the relief sought by the WLCT would result in regulating fundamental features of Islamic law, which would undermine the doctrine of religious entanglement.^[200] Both the WLCT and UUCSA took the view that the doctrine of religious entanglement does not arise in the application under discussion because the Court was not being asked to adjudicate on any religious precepts and the Muslim Marriages Bill had been agreed to by the mainstream Muslims in South Africa.^[201] The Western Cape High Court did not pronounce on this issue. However, one could assume that since the Court granted the WLCT’s primary relief for the enactment of legislation to recognize and regulate the consequences of Muslim marriages, it most likely did not support the state’s view on the matter of religious entanglement. The Court’s orders are discussed later in the paper.

Until the enactment of legislation to recognize and regulate the consequences of Muslim marriages, the WLCT asked that interim relief be provided in the form of a reading-in to the Recognition of Customary Marriages Act^[202] to include Muslim spouses within the ambit of the Recognition of Customary Marriages Act.^[203] This was to ensure that women and children in Muslim marriages are not left unprotected pending the enactment of legislation to recognize and regulate Muslim marriages.^[204] The WLCT’s second primary claim was supported by Esau and the Commission on Gender Equality (CGE).^[205] However, the CGE offered an alternative form of interim relief pending the enactment of legislation to recognize and regulate Muslim marriages. The CGE suggested that the Divorce Act should apply to the dissolution of Muslim marriages during the interim period and that words similar to those contained in section 8(4)(b) and (c) of the Recognition of Customary Marriages Act ^[206] should be read into the Divorce Act.^[207][208] The aforementioned provisions of the Recognition of Customary Marriages Act require a court to consider all relevant factors in relation to the dissolution of a polygynous marriage and to make an equitable order that it deems just. The provisions also give the court discretion to order any person who the court believes to have sufficient interest in a matter to be joined in the proceedings. The latter order could enable an existing wife in a polygynous marriage to present her views to the court about the impending marriage.

In the alternative, the WLCT sought an order that the Marriage Act,^[209] Divorce Act, and Recognition of Customary Marriages Act be declared inconsistent with the aforementioned constitutional rights to the extent that they do not provide for the recognition and regulation of Muslim marriages.^[210] Overlapping relief was also sought in the Faro application in which Faro asked for a declaratory order to enable Muslim marriages to be brought within the ambit of the Marriage Act or the common law definition of marriage.^[211] At the same time, the WLCT requested that a declaration of invalidity in respect of the Marriage Act, Divorce Act, and Recognition of Customary Marriages Act be suspended for a period of 12 months to afford Parliament the opportunity to correct the constitutional defects in the impugned legislation.^[212]

VI. The Court's Orders

The Western Cape High Court granted the WLCT’s primary claims and declared that the South African state failed to fulfil its obligations under section 7(2) and 237 of the South African Constitution. The Court ordered the state to prepare, initiate, introduce, enact and bring into operation, diligently and without delay legislation to recognize and regulate the consequences of Muslim marriages within 24 months from the date that judgment was handed down.^[213]

I have argued elsewhere that mere legislative recognition of Muslim marriages is not sufficient to ensure protection for women’s rights. Rather, comprehensive regulation of the features of a Muslim marriage and divorce is required, not only to protect freedom of religion but also to provide appropriate protection for women’s rights.^[214] It is therefore heartening that the Western Cape High Court found that

Comprehensive legislation is required because it would provide effective protection of Muslim marriages concluded in terms of the tenets of Islamic law, whilst giving expression to Muslim persons’ rights to freedom of religion.^[215]

If Muslim family law was practiced within South African Muslim communities in a manner that was consistent with gender and sex equality, there would be no need for legislative intervention to recognize and comprehensively regulate the features of a Muslim marriage and divorce. Comprehensive regulation of the features of Muslim family law will ensure that the Muslim identity of the marriage and divorce can remain intact and not be assimilated into the common law identity of a civil marriage. Comprehensive regulation will further bring the specific features of Muslim family law into the judicial domain where gender-discriminatory rules and practices can be held accountable to human rights standards in the public sphere.

Notwithstanding the Court’s indication that comprehensive recognition and regulation of Muslim marriages is needed, as mentioned previously, it was not inclined to dictate to the executive and legislature which form codification should take.^[216] In this respect, the Court arguably guarded against infringing against the doctrine of separation of powers. However, the Court’s reluctance to inform the manner of legislative intervention for the recognition and regulation of Muslim marriages means that the South African state can continue to choose not to enact the Muslim Marriages Bill. It would be a pity if the state ignored the rationale of the Court underpinning the aforementioned order that comprehensive regulation in addition to recognition of Muslim marriages is the only way to afford sufficient protection for the human rights of Muslim women. As outlined previously, any kind of legislation that does not purport to regulate the features of a Muslim marriage and divorce will create fertile ground for the violation of women’s human rights.

The Court did not grant the WLCT’s alternative claims or its claim for interim relief pending the enactment of legislation to recognize and regulate the consequences of Muslim marriages. Instead, guided by the Commission on Gender Equality’s claim for interim relief, the Court ordered that in the event that the state failed to meet its 24-month deadline, interim relief would be afforded to enable Muslim marriages to be dissolved through the Divorce Act.^[217] In other words, should the state not enact legislation within 24 months of the judgment having been handed down, Muslim parties would be able to access the Divorce Act to have their marriages dissolved. The Court presumably granted the Commission on Gender Equality’s claim for interim relief because it considers divorce to be the main area where the judiciary has not yet provided relief to Muslim parties.^[218] This is not entirely accurate. Muslim women are certainly vulnerable at the point when the Muslim marriage terminates. However, their vulnerability is not confined to divorce. The fact that their Muslim marriages are not legally recognized and regulated also makes them vulnerable to discriminatory Muslim family law rules and practices that operate within marriage.

It is unclear why the Court deemed it necessary to only make the interim relief possible after the expiration of the 24-month deadline. The challenges that Muslim women face in having their Muslim marriages dissolved exist presently, which is why the Commission on Gender Equality asked that the interim relief be afforded pending the enactment of legislation to recognize and regulate Muslim marriages. The Court’s order will leave Muslim women without protection for a further two years from the date of judgment and this could be extended should the state succeed in getting the deadline extended further.

It is also unclear how the Court envisages the interim relief to be applied in the absence of having granted the WLCT’s alternative claim that the Marriage Act, Divorce Act, and Recognition of Customary Marriages Act be declared unconstitutional and that Parliament be afforded an opportunity to amend the aforementioned legislation to include Muslim marriages within their ambit. In other words, for the Divorce Act to apply to the dissolution of Muslim marriages, the latter must be deemed to be lawful. In the absence of legislation that recognizes Muslim marriages, how can they be deemed to be lawful without existing marriage legislation being appropriately amended or the common law definition of marriage being extended to include Muslim marriages?

Even if Muslim marriages are deemed lawful after the expiration of the 24-month deadline, dissolution of the marriage by way of the Divorce Act will still not solve the difficulties that Muslim women experience in accessing Muslim divorce. In fact, the Western Cape High Court indicated that in applying the provisions of the Divorce Act to the dissolution of a Muslim marriage, the judiciary "would need to be sensitive to the requirements of Islamic law."^[219] While this may not negatively affect minor children born of the Muslim marriage because the principle of the best interests of the child will likely outweigh religious considerations that could be adverse to the interests of the child, it could very likely militate against the interests of Muslim women. For example, in accordance with a traditional and conservative interpretation of Islamic law, the marriage could be deemed to be out of community of property without accrual. Also, while a civil divorce may be granted, Muslim women could still experience difficulty in obtaining a Muslim divorce and would therefore not be able to remarry according to Islamic law. In fact, section 5A of the Divorce Act gives the court discretion to not grant a civil divorce if a religious divorce has not been obtained.^[220] Section 5A could thus have a disparate impact on a Muslim woman if she is seeking divorce and her husband and/or the ʿulamāʾ are unwilling to grant her a religious one.

Conclusion

The need for legal recognition of Muslim marriages in South Africa is patently evident. Without legal recognition of Muslim marriages, marginalized members within Muslim communities, namely women and children, are left without legal protection. In particular, this paper demonstrates that non-recognition of Muslim marriages in South Africa results in the privatization of gendered oppression of Muslim women. A constitutionally permissible solution to the challenges presented by non-recognition of Muslim marriages is provided by the South African Constitution itself, which enables legislative intervention to afford legal recognition to among others, Muslim marriages.

Yet, legal recognition alone will not provide sufficient protection for women’s human rights because gender-discriminatory Muslim family law rules and practices will continue to persist within the private sphere of the South African Muslim communities. Comprehensive regulation is therefore necessary to ensure that rules and practices related to Muslim marriages and divorces, which negatively affect women are transferred into a public domain that is informed by a human rights framework.

The necessity for comprehensive regulation of the consequences of Muslim marriages in addition to legal recognition of those marriages was confirmed by the Western Cape High Court in the WLCT matter. This confirmation defines the ground-breaking nature of the judgment. While the South African judiciary in several cases that were decided prior to the WLCT matter acknowledged the need for legal recognition of Muslim marriages, none identified the need for comprehensive regulation of the features of Muslim marriages. The ground-breaking feature of the judgment is also attributed to the fact that this was the first case in the history of South Africa that has directed the South African state to enact legislation to recognize and regulate the consequences of Muslim marriages.

Unfortunately, the ground-breaking effect of the judgment is limited by the Court having left the manner of recognition open to the discretion of the South African state, which could result in the enactment of a single marriage act or omnibus or umbrella marriage act. Should the aforementioned pieces of legislation not incorporate the Muslim Marriages Bill or fail to comprehensively regulate the features of Muslim marriages and divorce, it could enable gendered discrimination arising from traditional and conservative interpretations and application of Muslim family law rules and practices to be maintained in the South African Muslim communities. The same could be said of other religious and customary marriages. The Court’s failure to implement some form of suitable interim relief pending the enactment of legislation to recognize and regulate Muslim marriages is a further limitation on the positive potential of the judgment. Until legislation is in fact enacted, Muslim women are left without any legal protection and their rights to equality, access to courts, and dignity will continue to be infringed. Similarly, children born of Muslim marriages will continue to be denied the constitutional protection that is encased in the principle of the best interests of the child.