Victory for Muslim Marriages in South Africa – Court gives the State 2 (two) years to enact legislation

[Re-post] On 31 August 2018, the Western Cape High Court handed down a ground-breaking judgment. In effect, it Orders the State to prepare, initiate, introduce, enact, and bring into operation, diligently, and without delay, legislation to recognise Muslim marriages. The High Court gave the State exactly two (2) years to attend to the latter process. This two (2) years would only be suspended if the matter is taken to the Constitutional Court. However, should the matter not be taken to the Constitutional Court for final determination, and the State does not enact the legislation, then by default, Muslim marriages may be dissolved in accordance with the Divorce Act 70 of 1979. Therefore, it is up to the State to action matters urgently. Download a Copy of the Judgment by clicking here.

How does this benefit Muslim Marriages?

To understand how the judgment benefits Muslim Marriages, one needs to understand the legal nature of Muslim Marriages in South Africa. Let us refer to the judgment for  some insight: In the judgment, the following is stated: “The issues before us concern recognition and regulation of marriages solemnised and celebrated according to the tenets of Islamic (also referred to as ‘Muslim marriages’). It is undisputed that marriages entered into in terms of the tenets of Islam have not been afforded legal recognition for all purposes. The applicants argue that non-recognition and non-regulation of these marriages violates the rights of women and children in particular in these marriages. According to them. the State has failed in its duty of respect, protect promote and fulfil the Bill of’ Rights as required in section 7(2) of the Constitution, in the face of its constitutional and international obligations and that the most effective way of dealing with this systemic violation of rights, is an enactment of statute. This approach. according to the applicants has been postulated by the courts in a number of judgments dealing with issues concerning Muslim marriages before.”

What is the current state of Muslim Marriages?

Unfortunately, until the Muslim Marriages Act comes into operation, Muslim Marriages are not valid marriages in terms of South African Law. The consequences are however enforceable. For example, spousal support, succession, contracts etc. However, a Muslim spouse cannot get a divorce in terms of the Divorce Act, or make use of certain legislation as in the case of civil marriages. If a party is married in terms of civil law, he or she must approach a court of law for a valid divorce. That, unfortunately, does not apply to Muslim Marriages. Therefore, the Judgement is welcomed.

The Judgment Order

To get a better understanding of what the order of the court was, you can read it below. Feel free to leave your comments below.   Order [252] In the result. the following orders are proposed: 1 . It is declared that the State is obliged by section 7(2) of the Constitution to respect, protect, promote and fulfil 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. 2. It is declared that the President and the Cabinet have failed to fulfil their respective constitutional obligations as stipulated in paragraph 1 above and such conduct is invalid. 3. The President and Cabinet together with Parliament are directed to rectify the failure within 24 months of the date of this order as contemplated in paragraph 1 above. 4. In the event that the contemplated legislation is referred to the Constitutional Court by the President in terms of section 79(4)(b) of the Constitution, or is referred by members of the National Assembly in terms of section 80 of the Constitution, the relevant deadline will be suspended pending the final determination of the matter by the Constitutional Court: 5. In the event that legislation as contemplated in paragraph 1 above is not enacted within 24 months from the date of this order or such later date as contemplated in paragraph 4 above, and until such time as the coming into force thereafter of such contemplated legislation, the following order shall come into effect: 5.1 It is declared that a union validly concluded as a marriage in terms of Sharia law and which subsists at the time this order becomes operative, may (even after its dissolution in terms of Sharia Law) be dissolved in accordance with the Divorce Act 79 of 1979 and all the provisions of the Act shall be applicable, provided that the provisions of section 7(3) shall apply to such a union regardless of when it was concluded: and 5.2 In the case of a husband who is a spouse in more than one Muslim marriage, the court shall: (a) take into consideration all relevant factors including any contract or agreement and must male any equitable order that it deems just; and (b) may order that any person who in the court’s opinion has a sufficient interest in the matter be joined in the proceedings. 5.3 If administrative or practical problems arise in the implementation of this order, any interested person may approach this Court for a variation of this order. 5.4 The Department of Home Affairs and the Department of Justice shall publish a summary of the orders in paragraphs 5.1 to 5.2 above widely in newspapers and on radio stations, whatever is feasible, without unreasonable delay. 6. An order directing the Minister of Justice to put in place policies and procedures regulating the holding of enquiries by the master of the High Court into the validity of marriages solemnised in accordance with the tenets of Islamic law is refused. 7. An order declaring the pro forma marriage contract attached as annexure “A” to the Women’s Legal Centre Trust’s founding affidavit, to be contrary to public policy is refused. 8. In respect of matters under case numbers 22481/2014 and 4406/2013, the president, the Minister of Justice and the Minister of Home Affairs are to pay the costs of the Women’s Legal Centre Trust respectively, such costs to include costs of three counsel to the extent of their employment. 9. In respect of the matter under case number 13877/2015: 9.1 Ruwayda Esau’s claim to a part of the Mogamat Riethaw estate, if any. is postponed for hearing at trial along with Parts B and E, of the particulars of claim. 9.2 The Cabinet and the Minister of justice shall pay Ruwayda Esau’s costs in respect of Claim A, such costs to include costs of two counsel to the extent of their employment. Download a Copy of the Judgment by clicking here. Feel free to leave your comments below.
Posted on by Telelaw

Victory for Muslim Marriages in South Africa – Court gives the State 2 (two) years to enact legislation

[Re-post]

On 31 August 2018, the Western Cape High Court handed down a ground-breaking judgment. In effect, it Orders the State to prepare, initiate, introduce, enact, and bring into operation, diligently, and without delay, legislation to recognise Muslim marriages. The High Court gave the State exactly two (2) years to attend to the latter process. This two (2) years would only be suspended if the matter is taken to the Constitutional Court. However, should the matter not be taken to the Constitutional Court for final determination, and the State does not enact the legislation, then by default, Muslim marriages may be dissolved in accordance with the Divorce Act 70 of 1979. Therefore, it is up to the State to action matters urgently.

Download a Copy of the Judgment by clicking here.

How does this benefit Muslim Marriages?

To understand how the judgment benefits Muslim Marriages, one needs to understand the legal nature of Muslim Marriages in South Africa. Let us refer to the judgment for  some insight:

In the judgment, the following is stated:

“The issues before us concern recognition and regulation of marriages solemnised and celebrated according to the tenets of Islamic (also referred to as ‘Muslim marriages’). It is undisputed that marriages entered into in terms of the tenets of Islam have not been afforded legal recognition for all purposes. The applicants argue that non-recognition and non-regulation of these marriages violates the rights of women and children in particular in these marriages. According to them. the State has failed in its duty of respect, protect promote and fulfil the Bill of’ Rights as required in section 7(2) of the Constitution, in the face of its constitutional and international obligations and that the most effective way of dealing with this systemic violation of rights, is an enactment of statute. This approach. according to the applicants has been postulated by the courts in a number of judgments dealing with issues concerning Muslim marriages before.”

What is the current state of Muslim Marriages?

Unfortunately, until the Muslim Marriages Act comes into operation, Muslim Marriages are not valid marriages in terms of South African Law. The consequences are however enforceable. For example, spousal support, succession, contracts etc. However, a Muslim spouse cannot get a divorce in terms of the Divorce Act, or make use of certain legislation as in the case of civil marriages. If a party is married in terms of civil law, he or she must approach a court of law for a valid divorce. That, unfortunately, does not apply to Muslim Marriages. Therefore, the Judgement is welcomed.

The Judgment Order

To get a better understanding of what the order of the court was, you can read it below.

Feel free to leave your comments below.

 

Order
[252] In the result. the following orders are proposed:
1 . It is declared that the State is obliged by section 7(2) of the Constitution to respect, protect, promote and fulfil 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.
2. It is declared that the President and the Cabinet have failed to fulfil their respective constitutional obligations as stipulated in paragraph 1 above and such conduct is invalid.
3. The President and Cabinet together with Parliament are directed to rectify the failure within 24 months of the date of this order as contemplated in paragraph 1 above.
4. In the event that the contemplated legislation is referred to the Constitutional Court by the President in terms of section 79(4)(b) of the Constitution, or is
referred by members of the National Assembly in terms of section 80 of the Constitution, the relevant deadline will be suspended pending the final determination of the matter by the Constitutional Court:
5. In the event that legislation as contemplated in paragraph 1 above is not enacted within 24 months from the date of this order or such later date as contemplated in paragraph 4 above, and until such time as the coming into force thereafter of such contemplated legislation, the following order shall come into effect:
5.1 It is declared that a union validly concluded as a marriage in terms of Sharia law and which subsists at the time this order becomes operative, may (even after its dissolution in terms of Sharia Law) be dissolved in accordance with the Divorce Act 79 of 1979 and all the provisions of the Act shall be applicable, provided that the provisions of section 7(3) shall apply to such a union regardless of when it was concluded: and
5.2 In the case of a husband who is a spouse in more than one Muslim marriage, the court shall:
(a) take into consideration all relevant factors including any
contract or agreement and must male any equitable order that it
deems just; and
(b) may order that any person who in the court’s opinion has a sufficient interest in the matter be joined in the proceedings.
5.3 If administrative or practical problems arise in the implementation of this order, any interested person may approach this Court for a variation of this order.
5.4 The Department of Home Affairs and the Department of Justice shall publish a summary of the orders in paragraphs 5.1 to 5.2 above widely in newspapers and on radio stations, whatever is feasible, without unreasonable delay.
6. An order directing the Minister of Justice to put in place policies and procedures regulating the holding of enquiries by the master of the High Court into the validity of marriages solemnised in accordance with the tenets of Islamic law is refused.
7. An order declaring the pro forma marriage contract attached as annexure “A” to
the Women’s Legal Centre Trust’s founding affidavit, to be contrary to public policy is refused.
8. In respect of matters under case numbers 22481/2014 and 4406/2013, the president, the Minister of Justice and the Minister of Home Affairs are to pay the costs of the Women’s Legal Centre Trust respectively, such costs to include costs of three counsel to the extent of their employment.
9. In respect of the matter under case number 13877/2015:

9.1 Ruwayda Esau’s claim to a part of the Mogamat Riethaw estate, if any. is postponed for hearing at trial along with Parts B and E, of the particulars of claim.
9.2 The Cabinet and the Minister of justice shall pay Ruwayda Esau’s costs in respect of Claim A, such costs to include costs of two counsel to the extent of their employment.

Download a Copy of the Judgment by clicking here.

Feel free to leave your comments below.

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Domestic Violence Act

The Domestic Violence Act 116 or 1198, was introduced to afford woman the right to protect themselves by which they can enforce their rights legally if they fear for their life. The Act highlights that domestic violence is a serious offense and should be taken serious. Victims of domestic violence, woman and children that is, can now stand up for themselves by virtue of a protection order or restraining order. Perpetrators can also face imprisonment as the Act recognizes domestic violence is a serious crime. Arrange for an online appointment for a professional legal consultation today and have the legal expert explain to you in context how your legal rights can be executed. Connect with us today!

The process – defending Protection Order in South Africa

First of all, a Protection Order or harassment order serves as a direct order from court which should be adhered to. Any violation of a court’s instruction can be legally detrimental. The court order granted, will only be suitable to the person suffering any form of violence or harassment. A Protection Order is mainly applicable in cases of domestic violence in which the perpetrator lives with the victim. In a case of harassment, the perpetrator is not living with the victim. This is where a harassment order comes in. The idea of the Order is to ensure that the violence/abuse do not recur and put a stop into it by restraining the offender doing the abuse or committing the violent acts. Below are brief steps outlined on how to go about obtaining a Protection Order at your local police station:
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  • If you have a witness or confidante that knows about your abuse case, then you may want to take that person with you when obtaining a protection order.
  • The Court will then assess the application and will determine whether an Order is required.
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Visit our domestic violence application page and see more on obtaining a Protection Order. Do you fear for your life? Make an online appointment with us today and have your legal rights asserted!  
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ABC Steps to Appealing to the Constitutional Court of South Africa

If you are unhappy with a Court’s decision, you have a right to take the decision on appeal. Section 2 of the Constitution of the Republic of South Africa (Act 108 of 1996)  states: This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. Therefore, any act of parliament (e.g. Legislation) or decision of the government must be in conformity with the rights and obligations entrenched in our Constitution. In South Africa, we have the Constitutional Court. This is stated in Section 166 of our Constitution. Section 167 of the Constitution, with its subsections, states the following:
  1. The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges.
  2. A matter before the Constitutional Court must be heard by at least eight judges.
  3. The Constitutional Court ­
  4. is the highest court of the Republic; and
  5. may decide
  6. constitutional matters; and
  7. any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court; and
  8. makes the final decision whether a matter is within its jurisdiction. 
  9. Only the Constitutional Court may ­
  10. decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state;
  11. decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121;
  12. decide applications envisaged in section 80 or 122;
  13. decide on the constitutionality of any amendment to the Constitution;
  14. decide that Parliament or the President has failed to fulfil a constitutional obligation; or
  15. certify a provincial constitution in terms of section 144. 
  16. The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court if South Afirca, or a court of similar status, before that order has any force.
  17. National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court ­
  18. to bring a matter directly to the Constitutional Court; or
  19. to appeal directly to the Constitutional Court from any other court. 
  20. A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution.
Therefore, if you want to challenge a court’s decision on a Constitutional basis, the highest court you can go to is the Constitutional Court.

How do I take a matter to the Constitutional Court?

The Constitutional Court has its own rules. Therein, you would find the procedure to follow when bringing a matter to the Constitutional Court. Constitutional Court Rule 19 deals with Appeals. It states the following:
  1. Appeals
(1) The procedure set out in this rule shall be followed in an application for leave to appeal to the Court where a decision on a constitutional matter, other than an order of constitutional invalidity under section 172(2)(a) of the Constitution, has been given by any court including the Supreme Court of Appeal, and irrespective of whether the President has refused leave or special leave to appeal. (2) A litigant who is aggrieved by the decision of a court and who wishes to appeal against it directly to the Court on a constitutional matter shall, within 15 days of the order against which the appeal is sought to be brought and after giving notice to the other party or parties concerned, lodge with the Registrar an application for leave to appeal: Provided that where the President has refused leave to appeal the period prescribed in this rule shall run from the date of the order refusing leave. (3) An application referred to in subrule (2) shall be signed by the applicant or his or her legal representative and shall contain— (a) the decision against which the appeal is brought and the grounds upon which such decision is disputed; (b) a statement setting out clearly and succinctly the constitutional matter raised in the decision; and any other issues including issues that are alleged to be connected with a decision on the constitutional matter; (c) such supplementary information or argument as the applicant considers necessary to bring to the attention of the Court; and (d) a statement indicating whether the applicant has applied or intends to apply for leave or special leave to appeal to any other court, and if so— (i) which court; (ii) whether such application is conditional upon the application to the Court being refused; and (iii) the outcome of such application, if known at the time of the application to the Court. (4) (a) Within 10 days from the date upon which an application referred to in subrule (2) is lodged, the respondent or respondents may respond thereto in writing, indicating whether or not the application for leave to appeal is being opposed, and if so the grounds for such opposition. (b) The response shall be signed by the respondent or respondents or his or her or their legal representative. (5) (a) A respondent or respondents wishing to lodge a cross-appeal to the Court on a constitutional matter shall, within 10 days from the date upon which an application in subrule (2) is lodged, lodge with the Registrar an application for leave to cross-appeal. (b) The provisions of these rules with regard to appeals shall apply, with necessary modifications, to cross-appeals. (6) (a) The Court shall decide whether or not to grant the appellant leave to appeal. (b) Applications for leave to appeal may be dealt with summarily, without receiving oral or written argument other than that contained in the application itself. (c) The Court may order that the application for leave to appeal be set down for argument and direct that the written argument of the parties deal not only with the question whether the application for leave to appeal should be granted, but also with the merits of the dispute. The provisions of rule 20 shall, with necessary modifications, apply to the procedure to be followed in such procedures. As you would note, you should first obtain leave to appeal. Once that has been granted, you can then go ahead with the next steps.

What is the procedure once leave to appeal has been granted?

Rule 20 of the Constitutional Court Rules deals with the Procedure on Appeal. It states:
  1. Procedure on appeal
(1) If leave to appeal is given in terms of rule 19, the appellant shall note and prosecute the appeal as follows— (a) The appellant shall prepare and lodge the appeal record with the Registrar within such time as may be fixed by the Chief Justice in directions. (b) Subject to the provisions of subrule (1)(c) below, the appeal record shall consist of the judgment of the court from which the appeal is noted, together with all the documentation lodged by the parties in that court and all the evidence which may have been led in the proceedings and which may be relevant to the issues that are to be determined. (c) (i) The parties shall endeavour to reach agreement on what should be included in the record and, in the absence of such agreement, the appellant shall apply to the Chief Justice for directions to be given in regard to the compilation of the record. (ii) Such application shall be made in writing and shall set out the nature of the dispute between the parties in regard to the compilation of the record and the reasons for the appellant’s contentions. (iii) The respondent may respond to the application within 10 days of being served with the application and shall set out the reasons for the respondent’s contentions. (iv) The Chief Justice may assign the application to one or more judges, who may deal with the matter on the papers or require the parties to appear before him or her or them on a specified day and at a specified time to debate the compilation of the record. (v) The judge or judges concerned shall give directions in regard to the compilation of the record, the time within which the record is to be lodged with the Registrar and any other matters which may be deemed by him or her or them to be necessary for the purpose of enabling the Court to deal with the appeal, which directions may include that the matter be referred back to the court a quo for the hearing of additional evidence specified in the directions, or that additional evidence be put before the Court by way of affidavit or otherwise for the purpose of the appeal. (2) (a) One of the copies of the record lodged with the Registrar shall be certified as correct by the Registrar of the court appealed from. (b) Copies of the record shall be clearly typed on stout A4-size paper, double-spaced in black record ink, on one side of the paper only. (c) Legible documents that were typed or printed in their original form such as cheques and the like shall not be retyped and clear photocopies on A4-size paper shall be provided instead. (d) The pages shall be numbered clearly and consecutively and every tenth line on each page shall be numbered and the pagination used in the court a quo shall be retained where possible. (e) Bulky records shall be divided into separate conveniently-sized volumes of approximately 100 pages each. The record shall be securely bound in book format to withstand constant use and shall be so bound that upon being used will lie open without manual or other restraint. (f) All records shall be securely bound in suitable covers disclosing the case number, names of the parties, the volume number and the numbers of the pages contained in that volume, the total number of volumes, the court a quo and the names of the attorneys of the parties. (g) The binding required by this rule shall be sufficiently secure to ensure the stability of the papers contained within the volume; and where the record consists of more than one volume, the number of each volume and the number of the pages contained in a volume shall appear on the upper third of the spine of the volume. (h) Where documents are lodged with the Registrar, and such documents are recorded on a computer disk, the party lodging the document shall where possible also make available to the Registrar a disk containing the file in which the document is contained, or transmit an electronic copy of the document concerned by e-mail in a format determined by the Registrar which is compatible with software that is used by the Court at the time of lodgement, to the Registrar at: [email protected]: Provided that the transmission of such copy shall not relieve the party concerned from the obligation under rule 1(3) to lodge the prescribed number of hard copies of the documents so lodged. (i) If a disk is made available to the Registrar the file will be copied and the disk will be returned to the party concerned. Where a disk or an electronic copy of a document other than a record is provided, the party need lodge only 13 copies of the document concerned with the Registrar. (3) If a record has been lodged in accordance with the provisions of paragraphs (b) and (c) of subrule (1), the Registrar shall cause a notice to be given to the parties to the appeal requiring— (a) the appellant to lodge with the Registrar written argument in support of the appeal within a period determined by the Chief Justice and specified in such notice; and (b) the respondent to lodge with the Registrar written argument in reply to the appellant’s argument by a specified date determined by the Chief Justice, which shall be subsequent to the date on which the appellant’s argument was served on the respondent. (4) The appellant may lodge with the Registrar written argument in answer to the respondent’s argument within 10 days from the date on which the respondent’s argument was served on the appellant. (5) The Chief Justice may decide whether the appeal shall be dealt with on the basis of written arguments only. (6) Subject to the provisions of subrule (5), the Chief Justice shall determine the date on which oral argument will be heard, and the Registrar shall within five days of such determination notify all parties to the appeal of the date of the hearing by registered post or facsimile.

What are the Steps in Summary:

  1. Within 15 days of the Order you are appealing against, lodged you Application for leave to appeal [Rule 19(2)]
  2. Within 10 days, the Respondent is to file its Notice to Oppose the appeal and the grounds for the opposition [Rule 19(4)(a)]
  3. The Constitutional Court would then decide whether or not to grant the leave to Appeal [Rule 19(6)(a)]
  4. If leave to appeal is granted, the appellant shall prepare and lodge the appeal record with the Registrar [Rule 20(1)(a)]
  5. The Chief Justice may decide whether the appeal shall be dealt with based on written arguments only [Rule 20(5)]
  6. The matter would be argued on the date provided by the Constitutional Court.

Best of luck with your appeal.

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