The unanimous Constitutional Court judgement handed down on 28 June 2022 in the matter between the Women’s Legal Centre Trust versus the President of the Republic of South Africa and Others is surely a victory for both Muslim women and children.
Prior to 28 June 2022, certain provisions of the Marriage Act 25, 1961 (Marriage Act) and the Divorce Act, 1979 (Divorce Act) failed to recognise Muslim marriages as being valid in South Africa. The constitutional validity of these provisions came before the Supreme Court of Appeal (SCA) which found that the non-recognition of such marriages was a clear violation of their constitutional rights.
The Constitutional Court went on to confirm the constitutional invalidity maintained in the SCA. The court found that certain provisions of the Marriage and Divorce Act discriminated between those who marry in terms of the Marriage Act and those who marry in accordance with Muslim rites.
The Constitutional Court held that, the declaratory order invalidating the current legislation is suspended for a period 24 months. The suspension period is to allow for the Presidency and his Cabinet to rectify the current position with regards to Muslim marriages. Rectification can either be by way of amending the existing legislation or to pass new legislation to ensure that Muslim marriages are recognised as valid marriages and to regulate the consequences arising from such recognition. We look forward to seeing how this will unfold.
This judgement provides consistency, fairness and equality to all marriages in South Africa and is indeed a victory for women and children that were previously prejudiced.
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