The New Framework Planned for the
Legal Recognition and Regulation of
Muslim Marriages in a Secular South
Africa: From Litigation to Law Reform
Najma Moosa and Muneer Abduroaf

Abstrak: Umat Islam yang berasal dari Hindia Timur dan anak benua India,
memiliki sejarah di Afrika Selatan lebih dari tiga abad. Upaya Muslim Afrika
Selatan untuk mengakui pernikahan Muslim mereka memiliki sejarah lebih
dari tiga dekade, dimulai pada masa pemerintahan minoritas kulit putih atau
apartheid dan berakhir selama demokrasi. Meskipun Konstitusi Republik Afrika
Selatan, 1996, membuat ketentuan agar pernikahan Muslim diakui secara
formal dan terpisah melalui undang-undang, namun hal itu adalah sebuah ironi
keadilan bahwa hingga saat ini, tidak ada kerangka legislatif untuk pengakuan
dan pengaturan konsekuensinya. Berdasarkan hal itu, artikel ini secara kritis
menganalisis perkembangan litigasi dan peradilan saat ini serta reformasi
hukum dan proses kebijakan yang berkaitan dengan pengakuan formal dan
masa depan pernikahan Muslim di Afrika Selatan. Kerangka hukum tersebut
tidak memberikan rincian apapun mengenai mengapa pernikahan Muslim
tetap tidak diakui atau isi hukum substantif dan peraturan pernikahan Muslim.
Kata kunci: Afrika Selatan; kerangka pernikahan baru; pengakuan pernikahan
Muslim; litigasi dan perkembangan yudisial; reformasi hukum dan inisiatif
kebijakan
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Abstract: Muslims, who originate from the East Indies and the Indian subcontinent, have a history in South Africa dating back more than three centuries.
Attempts by South African Muslims to have their Muslim marriages (nikāḥs)
recognized have a history spanning more than three decades, starting during
white minority or apartheid rule and concluding during democracy. Although
the Constitution of the Republic of South Africa, 1996, makes provision for
Muslim marriages to be formally and separately recognized through legislation,
it is a travesty of justice that there is, to date, no legislative framework for the
recognition and regulation of the consequences flowing from such marriages. This
article critically analyses recent and current litigation and judicial developments
and parallel law reform and policy processes pertaining to the formal, future
recognition and regulation of Muslim marriages in South Africa. As such, it does
not provide any detail regarding why Muslim marriages remain unrecognized
or the substantive law content and regulation of Muslim marriages.
Keywords: South Africa; new marriage framework; recognition of Muslim
marriages; litigation and judicial developments; law reform and policy initiatives

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Introduction
South Africa is a constitutional democracy. Muslims originating
from the East Indies and the Indian sub-continent (Indonesia,
Malaysia, and India) have a history in South Africa dating back over
three centuries. Although a broad overview of the South African
discourse on Muslim Personal Law (MPL) from its inception to the
present falls outside the scope of this article, attempts by Muslims
to have their Muslim marriages (nikāḥs) recognized have a history
spanning more than three decades, starting during white minority or
apartheid rule and concluding during democracy (Moosa & Dangor,
2019; Moosa, 2011). The Constitution of the Republic of South Africa,
1996 makes provision for all religious marriages, including Muslim
marriages and/or MPL, to be formally and separately recognized
through legislation. As a result, the possibility of the recognition and
application of MPL in South Africa has enjoyed the attention of the
South African government for many years but without fruition. An
amended version of a 2003 Muslim Marriages Bill (MMB) was already
approved by Cabinet some twelve years ago in 2010 but has yet to be
enacted. Therefore, it is considered a travesty of justice that there is,
to date, no legislative framework for the recognition and regulation
of Muslim marriages. The judiciary has a series of MPL-related cases
since the adoption of the final Constitution, acknowledged such nonrecognition as discriminatory, but no court has formally declared a
Muslim marriage valid to date. While we currently await the outcome
of another MPL matter which has yet again reached the apex or the
Constitutional Court (CC), the legal status and validity of Muslim
marriages remain unresolved issues.
The COVID-19 pandemic and lockdown started in South Africa
in March 2020 and continued till April 2022. Fortunately, during this
time, court cases dealing with the non-recognition of Muslim marriages
and law reform and policy initiatives dealing with the recognition
of Muslim marriages continued. As a result, there is currently an
ambitious move afoot by two different arms of government to have
either a unified (one) or an omnibus (umbrella) marriage law for all
South Africans, including Muslims, after 2024. This article examines
the litigation and judicial developments and the law reform and policy
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processes involved to determine whether it will result in the legal
validity of Muslim marriages and what the implications, if any, will
be for the 2010 MMB.
This article is divided into five parts: Introduction and Conclusion
Part 2 of the article provides a historical and general overview of
Muslims and the non-recognition of their marriages in South Africa.
Part 3, by setting out the processes leading from litigation to law
reform, analyses the role of litigation and case law in spurring this
law reform and policy processes. Part 4 examines the law reform and
policy processes currently underway, how and whether they will work,
and possible implications, if any, for the 2010 MMB as an already
existing version of proposed legislation to govern aspects of MPL in
the South African context. In doing so, there will be some overlap
between Parts 3 and 4.
Muslims and the Non-Recognition of Their Marriages in South
Africa
The 1996 Constitution is the supreme or apex law in South Africa.
Its main aim is to avoid the past injustices generated in overlapping
periods of South Africa's history by Dutch and British colonialism,
apartheid rule, or politically motivated racial segregation and patriarchy.
Apartheid rule started in 1948 and lasted until 1994, when
democracy was attained through the coming into effect of the first
democratic Constitution of the Republic of South Africa, Act 200 of
1993 (the 1993 or interim Constitution). While democracy has been a
major turning point in its history, patriarchal values, which ought to
have ended with it, remain a questionable and an inherent component
of South African cultural and religious identity. Because Muslim
women live in a largely patriarchal religious society, they generally still
face gender discrimination on the basis of their sex. This is exacerbated
by the fact that Muslim marriages, like all religious marriages, remain
formally unrecognized in South Africa. Historically, South Africa
experienced two periods each of Dutch and British colonial rule,
starting with Dutch colonialism in the mid-seventeenth century and
terminating with a period of British colonialism at the end of the
nineteenth century. Although South Africa became a Union under
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white minority rule in 1910, and British colonialism terminated at the
end of the nineteenth century, it was still regarded as a British colony
until 1961, when the country became a Republic (Oliver & Oliver,
2017). During the first period of Dutch rule, Islam was introduced into
South Africa, initially at the Cape (now the Western Cape Province),
by Muslims who hailed from the Malay-Indonesian Archipelago (East
Indies). Subsequently, during the period of British rule, Muslims also
arrived from the Indian sub-continent. They settled in the Cape Colony
as well as in the Natal region (now KwaZulu-Natal) (da Costa, 1994;
Mahida, 1993; Moosa, 2021).
The current (2021) mid-year population of South Africa stands
at over 60 million, of which black Africans constitute over 80%
(Statistical Release P0302). Religious affiliation has not formed part of
published population censuses in South Africa since 2001, so there is,
unfortunately, no official population census data to accurately gauge
the number of Muslims currently living in South Africa. Relying on
statistics in the latest (2015) General Household Survey, Christians were
estimated to constitute 86% of a then total population of some 54
million, while Muslims were estimated to constitute merely 1.9% (or
roughly 1 million). Hindus were estimated to constitute 0,9% of the
population and Jews, 0.2%. Although the number of Muslims would
have increased since 2015, according to the latest General Household
Survey conducted in 2015, Muslims were estimated to make up a small
fraction (over one million) of the then-total population of 54 million.
Although these statistics confirm that the majority of South African
citizens are predominantly Christian, it also highlights that Muslims
constitute the largest of three (Muslim, Hindu, and Jewish) religious
minorities and that the largest number of Muslims were located in the
Western Cape Province.
MPL is a body of private law pertaining to inter alia, marriage,
divorce, inheritance, polygyny, custody, and guardianship that
regulates family relationships (Moosa & Dangor, 2019). While
Muslim marriages and divorces are regulated by the prescriptions of
the Islamic law (sharia), as a consequence of colonialism, the South
African common law (a combination of Roman-Dutch Law and
English Law) still regulates most aspects of South African family law.
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Section 15(1) of the final Constitution guarantees freedom of religion,
belief, and opinion. This grants everyone the right to follow their own
religion and, when read with s30 of the Constitution, to participate in
their cultural life. Section 15(3) also makes provision for all religious
marriages, including Muslim marriages (nikāḥs) and/or MPL, to be
formally and separately recognized through legislation (s15(3)(a), s15(3)
(a)(i) and s15(3)(a)(ii)). However, it does so without constitutionalizing
the right to have such marriages recognized (Moosa, 1996: 356).
Furthermore, once recognized, religious marriages, including Muslim
marriages, must be consistent (s15(3)(b)) with other provisions in
the Constitution's Bill of Rights, like equality (s9) and dignity (s10).
Although the Constitution makes allowance for the recognition of
Muslim marriages, the legal status and validity of Muslim marriages
currently remain unresolved issues.
The judiciary has in a series of MPL-related cases since the adoption
of the final Constitution, and more earnestly since 2014, acknowledged
that non-recognition of Muslim marriages is discriminatory; and this
has prompted some legislative changes favorable to Muslim women and
children. The Women's Legal Centre (WLC), an NGO established in
1999 to advance women's rights by conducting constitutional litigation
and advocacy on gender issues, has played an instrumental role in these
legislative changes by bringing relevant applications to court (Samaai,
n.d.). We currently await the outcome of a matter initially brought by
the Women's Legal Centre Trust (WLCT) to the Western Cape High
Court in 2014, which has now reached the CC. The WLCT brought
the matter in the public interest before the court and was represented
by the WLC.
Since the largest number of Muslims hail from the Western
Cape, it is not surprising that the cases dealing with legal challenges
pertaining to MPL matters that have been initiated either by or on
behalf of Muslim women, largely emanate from this province. The
trends reflected in these cases have, from 1994 to date, largely been
positive but only go as far as providing relief on a case-by-case basis.
These cases have prompted changes to legislation to include Muslims
under its protective ambit. Although the judiciary has increasingly urged
the legislature to enact legislation recognizing Muslim marriages and
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regulating their consequences, no court has formally declared a Muslim
marriage valid. The constitutional principle of separation of powers
between the three interdependent arms of government (executive,
legislature, and judiciary) has been in operation since the adoption of
the final Constitution in 1996.
The most recent investigation (Project 59) into the recognition
of Muslim marriages (nikāḥs) by the South African Law Reform
Commission (SALRC), the governmental body responsible for
considering law reform, started in 1999 and concluded in 2003, yielded
a proposed, essentially sharia compliant, draft Muslim Marriages Bill
(2003 MMB). This Bill was submitted to the then Minister of Justice
and Constitutional Development. The main author of this article was a
member of the SALRC Project Committee responsible for drafting the
2003 MMB. In 2010, seven years later, the Draft Muslim Marriages
Bill, 2010, an amended version of the 2003 MMB (hereafter the 2010
MMB), was approved by Cabinet and published for public comment.
However, to date, it has not yet been enacted, and no recognition has
ensued.
Like Muslim marriages (nikāḥs), life-long (permanent) same-sex
and opposite-sex partnerships are also not formally legally recognized,
although they too reached a Bill stage. In 2008 the Department of
Home Affairs (DHA), the department of the South African government
which manages the solemnization and registration of marriages
formally recognized in South Africa, published a draft Domestic
Partnership Bill for public comment. Parliament has to date not passed
legislation that regulates the relationships of couples who have not
entered into marriage but who cohabit in long-term or permanent
life partnerships. While these partnerships are not afforded the same
status as a marriage, they are also afforded some protection in South
Africa. As citizens Muslims are not precluded from entering into these
types of relationships.
Currently, three different forms of marriage are recognized in
South Africa and managed by the DHA. Although they are governed
by different statutes, one pro-democracy and two post-democracy, all
present some human rights concerns and loopholes. These marriages are
civil marriages (1961), customary African marriages (1998), and civil
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unions (2006)(Civil Union Act, 2016; Marriage Act, 1961; Recognition
of Customary Marriages Act, 1998). The first form is the default civil
marriage in terms of the Marriage Act (No 25 of 1961), which was
introduced in 1961, the same year that the country became a Republic
and overlapped with a period of apartheid rule when there was no clear
separation between state and religion (church). Although some of the
provisions of the Marriage Act, therefore, indicate a clear bias towards
Christianity, it is ultimately a civil and not a Christian marriage that is
automatically recognized as legal. Nonetheless, the Marriage Act was,
and still is, available to monogamous opposite-sex (heterosexual) couples
regardless of race or religion. Statistics in 2017 highlight it to be the
preferred choice of many South Africans probably because it offers more
security in the future for those entering it. In comparison to 135 458
civil marriages entered into in terms of the Marriage Act, only 2 588
customary marriages and 1 357 civil unions were registered in South
Africa in 2017 (Statistics South Africa, 2019).
Next in line was the African customary marriage of black South
Africans. Although they always constituted the majority of the total
population, their marriages were only formally recognized in 1998 in
terms of the Recognition of Customary Marriages Act (RCMA) (No
120 of 1998) (Recognition of Customary Marriages Act, 1998). The
RCMA came into operation on 15 November 2000, more than two
years after the final Constitution came into force on 4 February 1997.
Ironically, although such recognition occurred during the process of
removing racially discriminatory legislation, these marriages are only
available to monogamous and polygynous opposite-sex black South
African couples. The fact that these marriages are only available to
'blacks' can be construed to amount to them having received special
treatment while the religious marriages of the rest of the population
remain unrecognized and may, for these reasons, also be subject to
constitutional challenge and scrutiny. The RCMA was followed eight
years later in 2006 by a further form, the recognition of civil unions
or partnerships in terms of the Civil Union Act (CUA) (No 17 of
2006) (Civil Union Act, 2016). Unlike the RCMA, the CUA has no
restrictions based on race and is available to monogamous oppositesex and same-sex (homosexual) couples who can decide to label their
relationship a marriage or a partnership. These facts make the CUA
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a truly inclusive Act because it does not draw a distinction between
couples on the basis of their race or gender.
Although Muslims are currently precluded from utilizing the
RCMA because the definition of a customary marriage in South Africa
does not include marriages concluded in accordance with religious rites,
Part 3 will highlight a little-known or publicized current attempt by the
DHA to change the status quo to include Muslim marriages within the
ambit of the RCMA.
As citizens, Muslims currently have the option of entering into
civil marriages and civil unions, although both forms may be subject
to further restriction by Muslim religious authorities (ulama). Muslim
clerics (imāms), who since 2014 qualify as civil marriage officers in
terms of the Marriage Act (1961), will not conduct interfaith nikāḥs
and will usually only conduct civil marriages (which are by default in
community of property) if the matrimonial property system chosen
by the parties conform with Islamic law standards (usually out of
community of property and without accrual). However, such an option
may not necessarily offer the spouse most in need of support (usually the
wife) optimal financial protection upon the termination of a marriage
by death or divorce. Although s 9 of the Constitution (equality clause)
makes provision for the protection of both a heterosexual and homosexual
sexual orientation, mainstream ulama, who deem same-sex marriages
to be forbidden in Islam, will only approve of Muslims entering into
opposite-sex civil unions in terms of the CUA. Nonetheless, there is
a gay imām in the Western Cape who, although currently single, has
entered into a long-term same-sex partnership and interfaith same-sex
nikāḥ with a Hindu partner. He also officiates at same-sex nikāḥs and
civil unions in terms of the CUA (2006) for Muslim and interfaith
couples (Moosa & America, 2022).
It is not uncommon for South African Muslims to only enter
into a heterosexual Muslim marriage (nikāḥ) without also entering
into a further legally recognized civil marriage because of fundamental
differences between the two. For example, the Marriage Act does
not make provision for polygyny and is by default in community of
property. Hence, if Muslim marriages are formally recognized without
also formally regulating their consequences, it will be as if the status quo
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had remained unchanged for women and children. Although nothing
precludes Muslims, or persons from any other faiths, from utilizing the
Marriage Act (1961), doing so does not legalize the Muslim marriage or
nikāḥ itself. In such cases, civil marriage is usually preceded by a nikāḥ
(Marriage Act, 1961).
There are currently two parallel law reform processes underway
managed by two different arms of government to consider the
rationalization of all existing South African marriage laws and the
recognition of religious marriages and permanent life partnership
relationships within its broad ambit. The first process is being driven
by the SALRC under the auspices of the Department of Justice and
Constitutional Development (DOJ & CD) at the suggestion of the
Minister of Home Affairs. As a result, a new investigation was initiated
by the SALRC, and a new Project Committee was established. This
investigation has thus far yielded an Issue Paper and a Discussion Paper.
The Discussion Paper proposes the adoption of a draft Bill, the Single
Marriage Statute (SMS), which contains two Bills as two alternative
options. However, it appears that, except for minor definitional
differences, the content of both Bills is almost identical. A final report
is expected to be submitted by the Minister of Justice to the Minister
of Home Affairs.
Although the first process was suggested by the Minister of Home
Affairs, the second process is being driven by the DHA itself. The
DHA is seeking to develop a marriage policy for South Africa and
has thus far produced a draft policy discussion paper, the Green Paper
on Marriages (draft marriage policy or Green Paper), in which three
options, including the SMS, are being considered. It can be gauged from
these options that the DHA and the SALRC are not ad idem on what
the best possible solution for South Africa's marriage law should be. The
SALRC favors the adoption of the SMS to simply recognize all types of
relationships worthy of protection, to prescribe minimum requirements
for such relationships, and to leave their peculiar requirements (and
consequences) within the discretion of the parties. The DHA does not
agree that the proposed SMS may be the best solution or that it will pass
constitutional muster. Civil law currently regulates the consequences
of all existing marriages. This means that these laws will also have
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to be amended to include (and not merely accommodate) the newly
recognized marriages and relationships. There are currently several
SALRC investigations already underway. Although both processes
highlight a continued commitment and development to change the
status quo of non-recognition, it is unclear why there are two processes
and why the one, quite uncharacteristically, preceded the other.
Both processes are currently still underway. It is hoped that these
processes will conclude by 2024 and thereafter culminate in formal
legislation being put in place recognizing all types of marriages and
relationships. However, neither process makes provision for every
possible eventuality. For example, they do not include same-sex nikāḥs
within their ambit.
The Role of Litigation and the Judiciary in Prompting the Formal
Recognition of Nikāḥs through Law Reform
Muslim women and children face practical challenges (maintenance,
inheritance, domestic violence etc.) due to the non-recognition of
Muslim marriages. Over the past few decades have had to rely on court
interventions and legislative concessions to redress the consequences
of non-recognition. These changes in the law merely accommodate
them but do not provide recognition to Muslim marriages. This is
because when Muslim women enter Muslim marriages, they do not
automatically have the same legal rights and protections as spouses
in civil marriages, civil unions, and customary marriages have on the
death of a spouse or upon divorce. Consequently, with the assistance of
the WLC, Muslim women have approached courts through test cases.
This has resulted in a piecemeal amendment to legislation pertaining
to inheritance, maintenance, and children's rights to include them and
their children within its protective ambit. The WLCT has brought these
applications for the formal recognition of Muslim marriage and the
regulation of its consequences because of the continued failure on the
part of the government to enact such legislation. For a further and more
detailed discussion of the cases leading up to the latest CC decision
(Amien & Moosa, 2021 p 388-391). As indicated in Part 2, a concrete
legislative proposal in the form of a draft Muslim MMB has already
been in place since 2003. An adapted version of this Bill (2010 MMB)
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was tabled in Parliament in December 2010 and published for public
comment in 2011(Draft Muslim Marriages Bill, 2011). However, this
only occurred after an unsuccessful 2009 CC application was brought
by the WLCT (Women's Legal Centre Trust v President of the Republic
of South Africa and Others 2009 at para 1), in which it sought to oblige
the government to speed up the process of recognition by enacting
legislation both recognizing and regulating Muslim marriages (nikāḥs).
Since the WLCT took an unprecedented step in bringing its application
directly to the CC (the highest or apex Court in South Africa), the CC
unanimously dismissed its application. Given the obligation and role
that other organs of State, such as the Ministries of Justice and Home
Affairs, ought also to play in the enactment of the legislation, the CC did
not allow the WLCT direct access because it is not a court of both "first
and final instance" and because it found that the matter would be best
served by the intervention of other courts (at paras 21 and 27-28). The
CC judgment, therefore, does not consider whether Parliament may be
under an obligation to enact legislation recognizing Muslim marriages
nor whether such legislation would be consistent with the Chapter Two
provisions of the Bill of Rights of the Constitution.
As also apparent from Faro v Bingham (2013), another problematic
Muslim marriage application brought by the WLCT to the Western
Cape High Court, that "…it seems that the Bill is not in truth on the
legislative calendar for this year [2013]" (at para 42) (Women’s Legal
Centre Trust v President of the Republic of South Africa and Others,
Faro v Bingham N.O. and Others, Esau v Esau and Others, 2014). It
was probably removed from Parliament's review list because of a lack of
consensus among the Muslim community. On 25 October 2013, Judge
Rogers, the presiding judge in Faro v Bingham, ordered the DOJ & CD
to map out "… by no later than 15 July 2014…the progress made in
respect of the enactment of the Muslim Marriages Bill of 2011 and/or
any similar legislation" (at para 47(c)(ii)). Our emphasis is added in italics.
Undaunted, the government did not change the status quo through
the enactment of the MMB, nor did it expand the ambit of such
recognition to include "any similar legislation". Instead, the deadline set
by the Court merely prompted the government, through its Ministry of
Home Affairs, to train and, by 30 April 2014, to register many Muslim
clerics (imāms) as civil marriage officers (Muslim Marriage Officers or
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MMOs) (Moosa & Abduroaf’, 2017). In the Western Cape Province,
this occurred under the auspices of the Muslim Judicial Council (SA)
(MJC-SA), a non-profit religious tribunal based there and where Muslims
are also predominantly located. The MJC-SA, established in 1945, is one
of the oldest and most influential Muslim religious authorities in South
Africa (see History of the MJC). As an umbrella body, it represents the
most significant number of religious authorities (ulama) and mosques in
South Africa. This means that although imāms of these mosques may
officiate at both Muslim marriages (nikāḥs) and civil marriages (in terms
of the Marriage Act of 1961) between Muslim couples, it is the civil
marriage, if also entered, and not the nikāḥ, that is accorded formal,
legal recognition(Marriage Act, 1961). The co-author of this article is
both a member of the MJC-SA and a MMO. The main author of this
article alerted him to the fact that such accreditation, being uniquely of
limited duration, would lapse if not renewed. He informed the MJC-SA
of this, and as a result of a follow-up process by the MJC-SA with the
DHA, the DHA renewed the accreditation of imāms. In the case of the
co-author, the DHA, in a letter dated 15 December 2021, renewed his
accreditation as a civil marriage officer to 30 April 2025.
Since the government failed to meet the deadline set in the Faro case
to report on the progress of the MMB and given the unsustainability of
a hitherto piecemeal approach, in 2014, the WLCT decided to proceed
with the judicial route originally advised by the CC in 2009. In Women's
Legal Centre Trust v President of the Republic of South Africa (2014), the
WLCT, in another unprecedented step, re-launched its application in the
Western Cape High Court, seeking to oblige the government to enact
legislation within a year in a renewed bid to speed up the process of
recognition (Women’s Legal Centre Trust v President of the Republic of
South Africa and Others, Faro v Bingham N.O. and Others, Esau v Esau
and Others, 2014). This application, postponed several times, eventually
proceeded as a class action (Women's Legal Centre Trust v President of the
Republic of South Africa and Others, Faro v Bingham N.O. and Others,
Esau v Esau and Others). The judgment in the case was finally handed
down by a full bench on 31 August 2018. The three judges included a
male (Desai, J) and a female (Salie-Hlophe, J) judge who, because they
are also Muslim, would be familiar with the plight of Muslim women
at grassroots and community levels.
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The main relief sought by the WLCT was for a declaration by the
High Court stating that the President, the Cabinet, and Parliament have
basically failed in their constitutional obligations to enact legislation
governing Muslim marriages and regulating their consequences. The
main relief, the declaratory order, was granted. The Court (at para 252)
declared that
"1…[T]he State is obliged by section 7(2) [the state must respect, protect,
promote and fulfill the rights in the Bill of Rights] of the Constitution
to respect, protect, promote and fulfill the rights in sections 9 [equality],
10 [dignity], 15 [freedom of religion], 28 [best interests of children], 31
[freedom of religion read with section 31 to practice religion] and 34
[access to courts] of the Constitution by preparing, initiating, introducing,
enacting and bringing into operation, diligently and without delay as
required by section 237 [diligent performance of obligations] of the
Constitution, legislation to recognize marriages solemnized in accordance
with the tenets of Sharia law ('Muslim marriages') as valid marriages and
to regulate the consequences of such recognition. 2…the President and
the Cabinet have failed to fulfill 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…5. In the event
that legislation…is not enacted within 24 months…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 70 of 1979 and all
the provisions of that Act shall be applicable…".

If the State fails to meet the condition to pass legislation by 31
August 2020 (within the stipulated two-year period), the Court ordered
interim relief until the legislation is enacted. The interim relief provided
by the Court basically entailed that the Divorce Act 70 of 1979 would
apply to such Muslim marriages upon their dissolution. Compared to
their counterparts in a civil marriage, Muslim women, married according
to religious rites, are afforded little protection when their marriages end
in divorce. The interim relief aligns with the outcome of yet another
case (R v R) in the Western Cape High Court, decided in 2015, where
Bremridge, AJ found that "a marriage as contemplated by the Divorce
Act, must be considered or interpreted to include a Muslim marriage"
(at para 51). Therefore, the Court construed that the Divorce Act was
not limited to civil marriages.
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In granting an extended time frame, the Court in the 2018 WLCT
case followed a similar pattern to the cases prior to it. Similarly, the
Court (at para 188) also left it to the discretion of Parliament to decide
what form the legislation should take, for example, either to amend the
common law through legislative reform or by enacting legislation to
recognize and regulate Muslim marriages. Para 188 of the judgment
reads as follows: "The steps taken by the executive respondents by
introducing the Bill or contemplating an omnibus Bill seem to be an
acknowledgment that legislation is the most reasonable and effective
way of protecting the rights implicated. This remedy does not dictate to
the other arms what options to take. The Court is not involved in what
form the legislation should take. Whether or not the relevant parties
decide to vary or revive the Bill that has been in discussion for many
years, introduce new legislation, vary current marriage legislation, or
adopt omnibus legislation remains a choice for the executive and the
legislature."
For a detailed analysis of this case and the cases that followed it,
see Amien et al. (2021: 388-391). Since the interim relief granted stated
that secular South African law consequences, for example, pertaining to
the Divorce Act, would automatically apply to these Islamic marriages,
there appear to be a number of problems with these consequences
insofar as their (non) compliance with Islamic law (sharia) is concerned
(Abduroaf, 2020).
Notwithstanding possible clashes between the proposed interim
relief and Islamic law, which ought to govern Muslim marriages, the
WLCT (2018) case was taken on appeal by the State to the Supreme
Court of Appeal (SCA). While the CC is the highest court for
constitutional matters, the SCA, formerly the Appellate Division (AD),
is the highest court for criminal and civil cases. The WLCT crossappealed the matter. Given a separation of powers, when the unanimous
landmark judgment of the SCA was handed down in December 2020,
the SCA (at paras 24-25 and 43) did not agree with the High Court's
finding that the President, State, Cabinet, and Parliament were obliged
in terms of the Constitution to enact such legislation, but nonetheless
granted immediate (not interim) relief as part of its order (at para 51).
It agreed that the Civil Marriage Act (1961) and the Divorce Act (1979)
were unconstitutional because they did not recognize Muslim marriages.
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The Court ordered the President, together with Parliament, to remedy
the defects in the legislation within 24 months (bullet 1.7, para 51).
Further, pending the coming into force of legislation to rectify the order
of unconstitutionality, the Divorce Act can apply to the termination of
Muslim marriages regardless of when the nikāḥ was concluded (bullet
1.8, para 51). The declarations of constitutional invalidity have been
referred to the CC for confirmation.
In a nutshell, the SCA replaced the order of the Western Cape High
Court and set aside its para 5. In bullets 1.1, 1.9, and 1.10 of para 51
of its order, the SCA declared as follows:
"1.1 The Marriage Act…and the Divorce Act…are declared to be
inconsistent with ss 9, 10, 28, and 34 of the Constitution of the
Republic of South Africa, 1996, in that they fail to recognize marriages
solemnized in accordance with sharia law (Muslim marriages) as valid
marriages (which have not been registered as civil marriages) as being
valid for all purposes in South Africa, and to regulate the consequences
of such recognition…1.9 It is declared that, from the date of this order,
s12(2) of the Children's Act 38 of 2005 applies to Muslim marriages
concluded after the date of this order. 1.10 For the purpose of applying
paragraph 1.9 above, the provisions of ss 3(1)(a), 3(3)(a) and 3(3)(b), 3(4)
(a) and 3(4)(b), and 3(5) of the Recognition of Customary Marriages
Act 120 of 1998 shall apply, mutatis mutandis, to Muslim marriages."

Judgment in the SCA case was handed down on 20 December 2020.
Following its order, we see a surprising new development emanating
from the DHA based on the order. The DHA is responsible for the
maintenance of the National Population Register (NPR), which includes
the recording of marriages and deaths. We have indicated in Part 2, and
as will be detailed in Part 4, that the DHA has its own parallel process
underway, which also envisages the recognition of nikāḥs. However, it
appears, quite apart from that process, that the DHA, to have Muslim
marriages (nikāḥs) registered, now envisages the registration of such
religious marriages as valid customary marriages under the RCMA (1998).
This is evident from an official circular (dated 6 January 2022 and
signed by the Director-General of Home Affairs) sent to the MJC-SA
informing it of its directive (official instruction) to this effect. A copy of
the circular containing this directive sent to the MJC-SA is on file with
the authors of this article. The text in bold in the following quotation
appears in bold in the circular. The DHA makes it clear in the circular
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that the directive has been issued to comply with what appears to be
bullets 1.1 and 1.10 of the SCA order, which are also quoted in the
circular:
"Following the order, all registering officers, appointed in terms of the
Recognition of Customary Marriages Act, 1998…are required to comply
with the order and register Muslim marriages in accordance with the
provisions of sections 3(1)(a), 3(3)(a) and 3(3)(b), 3(4)(a) and 3(4)(b), and
3(5) of the Recognition Act with the necessary modifications. Therefore,
front offices are expected to register Muslim marriages in line with the
processes followed in registering customary marriages".

Section 3 of the RCMA deals with the requirements for the validity
of customary marriages. Such registration is envisaged only to take place
at DHA offices and be affected by DHA officials. The emphasis is,
therefore, on the registration as a customary marriage of a religious
nikāḥ marriage solemnized by imāms and has nothing to do with their
role as trained civil marriage officers. The RCMA does not provide for
marriage officers because it originally aimed at recognizing marriages
conducted under customary law. It merely provides for registering
officers. The primary author's doctoral dissertation was written during
the momentous period (1993-1996) when the interim Constitution was
promulgated and eventually replaced by the final Constitution. In 1993,
South Africa promulgated its first democratic (interim) Constitution. The
interim Constitution came into effect on 27 April 1994 and governed
South Africa during the transitional period leading up to and following
the first democratic elections in April 1994. It remained in force until
3 February 1997, when it was replaced by the 1996 Constitution. This
Constitution came into force on 4 February 1997.
In her dissertation, Moosa (1996) highlighted that MPL, although
influenced by custom, is essentially religious in nature and explained why
it, therefore, cannot be confused or equated with African customary or
indigenous law. Further, both the interim and final Constitutions have
acknowledged this distinction by making separate provisions for religious
law and customary law (Mbatha & Moosa, 2007; Moosa, 1996). To
elaborate on its directive, the DHA subsequently arranged for a DHA
official, Mr. Yusuf Simons, and a Western Cape delegation to meet with
members of the executive council of the MJC-SA and its legal desk at
the MJC-SA offices in Athlone, Cape Town. Although two physical
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meetings were held on the 3rd and 10th February 2022, both meetings
were also conducted as hybrid meetings with DHA staff from its Head
Office and MJC-SA members. Many of the members of the MJC-SA
legal desk are lawyers, and the investigation of the recognition of Muslim
Marriages in South Africa forms part of its mandate. The co-author of
this article attended and participated in these meetings as the Head of
the MJC-SA legal desk. At the first meeting, questions were posed by
the MJC-SA, and the DHA attempted to answer these questions at
the second meeting. The DHA stands firm in its interpretation of the
SCA order that this is what it is required to do. However, the MJC-SA
disagrees with this interpretation and also envisages practical problems
with its implementation.
The application of s 3(1)(a) of the RCMA to Muslim marriages
concluded in terms of Islamic law would be quite problematic. Section
3 deals with the requirements for the validity of customary marriages.
Section 3(1)(a) provides that: '(1) For a customary marriage entered into
after the commencement of this Act to be valid - (a) the prospective
spouses…(ii) must both consent to be married to each other under
customary law…'. The application of this section is problematic because
a couple that wants to marry in terms of Islamic law would never agree
to be married to each other under customary law. Had this been the
case, they might as well have just concluded a customary marriage, not
a marriage based on Islamic law. The purpose of a Muslim marriage
would be based on the understanding that Islamic law consequences
would apply to the marriage and not the consequences in terms of
customary law. As it stands, the RCMA also incorporates civil law
consequences. We contend that the rationale for wanting to include
Muslim marriages within the ambit of the RCMA may have little
to do with the SCA judgment and more to do with the fact that, in
comparison to Muslim marriages, much more progress has been made
with the RCMA.
While the SCA (2020) decision is the most current one, it is
interesting to note that the WLCT, in the High Court (2018) case (at
para 36), had claimed interim relief pending the enactment of legislation
recognizing and regulating Muslim marriages by enabling a readingin to the RCMA (1998) to afford such recognition and regulation of
Muslim marriages:
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"Pending the promulgation of legislation, to remedy these inconsistencies,
in the interim, WLC seeks a reading-in to be done in the Recognition
Act [RCMA] to provide for the recognition and regulation of Muslim
marriages."

We further contend that while the SCA ordered that pending
such legislation (recognizing Muslim marriages and regulating its
consequences), a Muslim marriage may be dissolved in accordance with
the Divorce Act, this does not imply that the SCA has, in fact, thereby
accorded Muslim marriages formal recognition as the author of an article
analyzing the implications of this case for Muslim women and children
as far as divorce is concerned, may believe it does: "[t]his matter has
given Muslim marriages recognition" (Moolla, 2021).
In his article, the author also highlights that "[a]t the SCA hearing,
Saldulker J questioned the counsel for the State as to what the pragmatic
solution was for women and children whose constitutional rights were
being infringed daily. She highlighted those Muslim women could not
wait another 20 years" (Moolla, 2021).
In the judgment, the SCA (at para 50) stated:
"The importance of recognizing Muslim marriages in our constitutional
democracy cannot be gainsaid. In South Africa, Muslim women and
children are a vulnerable group in a pluralistic society such as ours.
The non-recognition of Muslim marriages is a travesty and a violation
of the constitutional rights of women and children, including their
right to dignity, to be free from unfair discrimination, their right to
equality, and access to a court. Appropriate recognition and regulation
of Muslim marriages will afford protection and bring an end to the
systematic and pervasive unfair discrimination, stigmatization and
marginalization experienced by parties to Muslim marriages, including
the most vulnerable, women and children."

Saldulker, JA, one of the two judges who penned the judgment,
happens to be a Muslim woman herself and would therefore be familiar
with their plight at community and grassroots levels.
The SCA's order of invalidity was referred to the CC for
confirmation. The matter was heard on 5 August 2021, but judgment
has been reserved. At the time of submission of this article for
publication, the judgment had still not yet been handed down. The
process, therefore, remains in abeyance. Depending on the outcome
of the CC judgment, there are a few possible scenarios as to how
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such future recognition is intended to take place. Parliament could,
for example, either en­act the 2010 MMB since it already exists and
both comprehensively recognizes and regulates Muslim marriages
and divorces or, as intimated in the 2018 WLCT case, it could
enact different legisla­tion which affords recognition to all religious
marriages but without necessarily also regulating the consequences
flowing therefrom. These options and their possible implications are
fully discussed in the next Part.
As will be further detailed in Part 4, the Court in the Faro
case, although it specifically referred to recognition in the context of
the 2010 MMB, also extended the ambit to include "…any similar
legislation." It is reported in the 2018 WLCT case (at paras 24 and
26) that the two arms of government, the DOJ & CD and the DHA,
were, in fact, at the time already in the process of investigating a
"Possible Omnibus Bill":
"The Minister of Justice submits that the two Departments [Home
Affairs and Justice] are to take the process forward by looking at the
amendments to the existing legislative framework to give effect to the
above approach or even exploring the possibility of drafting an entirely
new Bill which regulates the registration of all religious marriages and
the dissolution thereof. The Departments believe this approach should
be more acceptable to the Muslim community… Now it appears that
there are investigations by the Law Reform Commission that are being
undertaken to develop a paper on one Marriage Act for all religions."

Judge Rogers, in the 2013 Faro case (at para 44), warned that
"[t]here may come a time when owing to continued lethargy or
paralysis on the part of the executive promoters of legislation in this
field, a court will need to intervene." This does not mean that the
judiciary intends to usurp the role of Parliament by compelling the
legislature to introduce specific legislation. The government has, for
example, amended existing laws to ensure that sexual minorities,
like homosexuals, are protected from unfair discrimination. In most
of these instances, the judiciary, including the CC, prompted these
changes. These changes include the recognition of same-sex marriages
or partnerships with the passing of the CUA in 2006. The CUA came
into being as a direct result of a landmark decision (Minister of Home
Affairs and Another v Fourie and Another) of the CC(President of the
RSA and Another v Women’s Legal Centre Trust and Others; Minister
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of Justice and Constitutional Development v Faro and Others; and
Minister of Justice and Constitutional Development v Esau and Others
(612/19) [2020] ZASCA 177; [2021] 1 All SA 802 (SCA); 2021 (2)
SA 381, 2020). The Court, in this case, ruled unanimously that samesex couples have a constitutional right to marry. The judgment gave
Parliament one year to pass legislation to this effect, and as a result,
the CUA came into effect on 30 November 2006. As indicated in
Part 2, a possible argument that can still be raised against a similar
recognition of Muslim marriages is the understanding that the while
s15(3) of the Constitution makes provision for the recognition of all
religious marriages, it does so without constitutionalizing the right
to have such marriages recognized. On the other hand, it could, for
example, also be argued that just like the right to same-sex sexual
orientation is guaranteed in s9(3) (equality clause) of the Constitution,
discrimination on the basis of religion and marital status, which like
sexual orientation are equally immutable s9(3) considerations, may also
be deemed to be unfair and therefore unlawful.
The State opposed the WLCT's 2018 application (in which the
MJC-SA is cited as an amicus) to order the government to enact
legislation recognizing Muslim marriages. Ulama bodies like the MJCSA, a founding member of the mainstream ulama body, the United
Ulema Council of South Africa (UUCSA), whose members may hold
opposing or different views in this regard, continue to date to remain
supportive that such recognition occurs through the 2010 MMB. This
has been confirmed by the co-author of this article, who oversees the
legal desk of the MJC-SA dealing with such recognition. However,
from the State's perspective, given the hitherto lack of consensus among
Muslims regarding the recognition of Muslim marriages in terms of the
MMB, this may no longer be or seem like a viable option to consider.
Further, it may consider its proposed initiatives referred to under the
heading "Possible Omnibus Bill" in the 2018 WLCT case to be a less
controversial and more viable alternative to recognition for all religious
marriages.
The State is required to request the input of the public, which
would include the Muslim community. While some members may
welcome the recognition in the form of a rationalized Act, others may
not. We contend that a lack of participation or lack of constructive
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input on the part of the community in these parallel processes may
not necessarily stymie the State's progress and determination to succeed
this time around. As it is, the State has wasted enough time and
resources in countering litigation, paying costs, and scrambling to
meet judicial deadlines set to report on its progress regarding the
recognition.
In the next Part, we more fully explore the government reform
and policy initiatives referred to in this Part and in Part 2, which are
currently still underway and whether these will be to the satisfaction
of the Muslim community, and if so, whether this may also mean the
sounding of the death knell of the 2010 MMB.
The Law Reform, Policy Initiatives, and Processes
Currently, two parallel law reform processes are underway
contemplating amendments to South Africa's marriage laws. The one
process is being administered by the SALRC and has, to date, produced
an Issue Paper and a Discussion Paper. The other parallel process is
administered by the DHA, which has produced a draft marriage policy
or Green Paper.
As evident from both these SALRC papers (to be detailed in Part
4 (i)), the Issue Paper was the first document published by the SALRC
during its investigation and was the first step in the consultation process
with all stakeholders, including the community at large. As such, it does
not contain proposals for law reform. The Discussion Paper, the second
paper published by the SALRC, is based on feedback received on the
Issue Paper and includes draft legislation. However, these are merely
preliminary and not final proposals that aim to elicit further public
responses to the solutions (draft legislation) proposed by the SALRC
and serve as the basis for further deliberations by the SALRC. These
responses will be collated and evaluated to prepare the report setting
out the SALRC's final recommendations (inclusive of draft legislation)
to be submitted to the Minister of Justice and Correctional Services for
his submission, in turn, to the Minister of Home Affairs.
The SALRC has produced an SMS, a draft version of what proposes
an entirely new Act. In doing so, it appears to have put the cart before
the horse because there is a definitive legislative process to be followed
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before a Bill is tabled in Parliament and becomes law (see the summary
of legislative process). According to the stages involved in this process,
Bills are usually preceded by Green Papers (which express possible
solutions that have not yet been adopted by the government) and White
Papers (which express a policy position of the government that has been
approved by the Cabinet) and not the other way around as happened
in this case. The process would ordinarily start with the drafting of a
discussion document called a Green Paper, as was done in this case by
the Ministry or Department of Home Affairs, to give an indication of
its thinking on a particular policy. This Green Paper was published for
public comment. Sometimes a Green Paper is followed by the drafting,
along similar lines, of a more refined discussion document called a White
Paper which, as indicated, is a broad statement of government policy.
The DHA is still in the process of producing a White Paper (see Know
your Green Paper on Marriages).
Although the rationale for the duplication of processes remains
unclear, as well as what these processes would entail for Muslim
marriages, the aim of both processes appears to want to achieve the
same end goal, namely, the drafting of "overarching" legislation to afford
recognition and protection to all forms of marriages (including Muslim
marriages) and relationships. Although the implications, if any, for the
MMB (2010) as an already existing version of proposed legislation to
govern aspects of MPL in the South African context is therefore also
uncertain (Amien, 2020; Amien & Moosa, 2021; Osman, 2021), we
proffer some predictions in this regard below.
The Cart Before the Horse: SALRC Issue, Discussion Papers, and
DHA Green Paper
The information in this Part has been extracted from the Issue
Paper (p iii, pp 1 and 5) and the Discussion Paper (p iii, pp 1, 5, 6, 140,
and 158), which are available on the websites detailed in the reference
section at the end of the article. The updated information on the
Discussion Paper was gleaned from personal communication between
the main author of this article and the Project Leader responsible
for this investigation, Wesahl Domingo, on 17 and 22 April 2022.
In 2013, following an invitation from the then Minister of Justice
and Constitutional Development to suggest areas to be included in
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the SALRC's research program, the then Minister of Home Affairs
suggested the inclusion of an investigation of the development of an
SMS for South Africa. The inclusion of this investigation was approved
in November 2017.
An Advisory Committee of the SALRC was appointed for this
investigation. Members included several academics and Justice Mahomed
Navsa of the SCA (also the Project Leader of the 2003 MMB). Wesahl
Domingo, a member of the SALRC, was appointed the Project Leader.
Both Navsa and Domingo are practicing Muslims.
On 16 March 2019, the first document of this investigation, Issue
Paper 35 (Project 144 Single Marriage Statute Issue Paper 35), was
approved by the SALRC for publication. It was published for comment
on 8 April 2019. An initial closing date (31 July 2019) was extended to
31 August 2019. Briefly, the Issue Paper had the following two options
available for the proposed legislation: (i) a single (unified) marriage
statute with a unified set of requirements applying to all marriages (SMS)
or (ii) a single statute containing different chapters which reflect the
requirements and consequences of both currently recognized marriages
and marriages proposed for recognition. This option could be deemed
an omnibus (umbrella) marriage statute.
While the aim of both an SMS and omnibus legislation is to
accord recognition to all existing recognized marriage laws and those
not hitherto recognized, they propose to do so by following different
routes. The specific aim of the SMS is to adopt a "one-size-fits-all
approach" and rationalize and govern all these marriages in one piece of
legislation through a uniform set of requirements but without regulating
its legal consequences. As is currently the case with existing marriages,
these consequences will have to be determined by other legislation.
However, this would mean that instead of merely accommodating
Muslim women and children under laws like the Matrimonial Property
Act 88 of 1984; Divorce Act 70 of 1979; Children's Act 38 of 2005;
Maintenance of Surviving Spouses Act 27 of 1990; and Maintenance
Act 99 of 1998, these laws will have to be formally amended to cater
for Muslim marriages. This will also be the case with the investigations
into the review of several of these laws that are currently in progress.
For example, the SALRC Advisory Committee Project 100E on the
Review of Aspects of Matrimonial Property Law. An Issue Paper has
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been published, inviting comments for the drafting of a Discussion
Paper, including how the matrimonial property regimes of religious
marriages should be regulated.
On the other hand, Omnibus legislation aims to provide for
the recognition of the different kinds of marriages through the
incorporation in a proposed Bill of several separate chapters for each
marriage. For example, the 2010 MMB could be incorporated into
the omnibus legislation as a chapter on its own. This would have
solved the issue of regulation of consequences being dealt with in
terms of Islamic law. The same could apply to each of the existing
marriage laws, which may also require some amendment because of
the loopholes mentioned in Part 2.
Based on responses received, the Issue Paper was followed by the
publication of a second document, the Discussion Paper (2022). It
was published in January 2021 and amended on 13 May 2021. The
initial closing date for comment (31 March 2021) was extended to 17
May 2021.
As was the case with the Issue Paper, the Discussion Paper contains a
background explanation of the current position in South Africa. Specific
mention is made to the WLCT SCA judgment (at the time, there was
no CC hearing as that only took place in August 2021). The Discussion
Paper includes the SALRC's provisional proposals for draft legislation.
As an integrated paper, it contains two proposals but no longer contains
the option or possibility of an omnibus approach which would have
made allowance for the incorporation of the 2010 MMB.
Instead, it contains the following two proposed legislative options:
The first option is proposed in the Protected Relationships Bill (Annexure
B1: 135-152 of the Discussion Paper), and the second option is proposed
in the Recognition and Registration of Marriages and Life Partnerships
Bill (Annexure B2: 153-171 of the Discussion Paper).
These proposed Bills only consider the SMS approach, which
basically means that one set of principles will govern all marriages and
will only deal with recognition and registration and not regulation
(consequences). While this is unfortunate, it does refer to several existing
South African Acts or statutes that would automatically govern the
consequences of all marriages recognized in terms of this proposed SMS.
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For the purposes of Muslim marriages, this is problematic because those
Acts are based on secular and not Islamic Law.
Although two Bills are proposed as alternative options, except for
minor differences (whether a marriage should be labeled as a "protected
relationship" or a "life partnership"), their substantive contents are
basically identical and are literally cut (and pasted) from the same cloth.
Although this poses a problem for the Muslim community, both versions
of the Bill refer to a contract that would be taken into consideration in the
event where there is, for example, a dissolution of marriage which could
also govern the marriage of the parties instead of existing legislation. As
indicated, the proposed Bills adopt a minimalist approach and deal only
with recognition and registration, not consequences usually regulated
by civil law. However, both Bills appear to leave the regulation of the
consequences to the discretion of the parties in these relationships.
For example, s 8(3) in both Bills in the Discussion Paper refers to a
contract in terms of which two parties can contract themselves into
the consequences of the marriage. It states that "[a] registering officer
must, if satisfied that a marriage or life partnership has been entered
into, register the relationship by recording – ... (g) the particulars of a
partnership agreement...". There would therefore be nothing preventing
Muslims from entering a contract to regulate the consequences of their
marriage, which will be taken into consideration upon its dissolution.
Similar to the current civil marriage status in the Marriages Act (1961),
where a Muslim couple enters into an antenuptial contract and sets out
the conditions in it, the consequences are not governed by legislation
but by contract (Marriage Act, 1961). However, in this way, the door
is also left open for ulama to be still able to influence the regulation of
such contracts, which may, as explained in Part 2, be to the detriment
of women.
As of April 2022, the Bill has not been finalized. After the closing
date for comments (May 2021), online workshops were held. The Project
Committee is now at the stage of finalizing the Bill and taking into
consideration the comments from the public. The final draft of the Bill
is expected to be sent to the rest of the Commissioners in June 2022.
The next step would be for a report (with draft legislation) setting out
the SALRC's final recommendations to be submitted to the Minister of
Justice and Correctional Services, Mr. R Lamola, for submission to the
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Minister of Home Affairs, Mr. A Motsoaledi. Upon inquiry, Professor
Domingo indicated that the final report that will be submitted to the
Minster will have one Bill. Since they were (as of April 2022) still
collating all the information from their stakeholder engagements, the
Project Committee has not decided which of the two Bills they prefer
or will put forward.
Although it will not really matter which of the two Bills is eventually
favored by the Project Committee because they are so similar, it appears
that the DHA, although it includes the option, does not favor an SMS
approach and, therefore, by implication, either of the two Bills. In its
Green Paper detailed below, the DHA makes it clear that an SMS
would be found to be unconstitutional if challenged because it does
not take into consideration the nuances of the cultural and religious
communities. We contend that this problem could have been avoided
if the SMS had been published by the SALRC at the same time as,
and not before, the publication of the Policy Paper (the Green Paper),
as should have been the case.
Although the DHA Green Paper on Marriages was published later
than the Discussion Paper published by the SALRC Project Committee,
it was within the same time that feedback or comment was required from
the South African community for both papers (South Africa, 2022).
The DHA published a Green Paper on Marriages in South Africa
for public comment on its proposed changes in May 2021. The Green
Paper was published on 4 May 2021 and the DHA, with the marriage
legal framework as a key policy focus area, considered three options.
These are summarized and quoted verbatim as follows:
In order to enable regulation of all marriages in accordance with sections
9, 10, 15, and 31 of the Constitution, the following legislative options
are recommended:
Option 1: Single Marriage Act. A single Marriage Act has a unified set
of requirements and consequences applying to all marriages. This option
may not be suitable for the country's mixed legal system and might not
pass the Constitutional muster.
Option 2: Omnibus or Umbrella Marriage Act. The omnibus legislation
is a single act that will contain different chapters for a diverse set of legal
requirements for civil marriages, civil unions, customary marriages, and
other marriages that are not regulated by the current legislation.
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Option 3: Parallel Marriages Acts. The retention of the status quo is
also an option that requires consideration. This option will require the
enactment of more marriage legislation that must cater to the marriages
that are excluded by the current marriage legislation.
The new legal framework will enable regulation of all marriages in
accordance with sections 9, 10, 15, and 31 of the Constitution (South
Africa, 2022).

In 2021/2022 annual performance plan, the DHA sums up
the rationale of its process as follows: "The legislation that regulates
marriages in South Africa was developed without an overarching
policy that is based on constitutional values (e.g., equality, nondiscrimination, and human dignity) and the understanding of modern
societal dynamics. Instead of creating a harmonized system of marriage
in South Africa, the State [has adopted a piecemeal approach and] has
sought to give recognition to different marriage rituals through passing
a range [three to be precise, the Marriage Act, the RCMA, and the
CUA] of different marriage laws. Despite all the changes that have
been made in the marriage legislation post-1994, serious gaps remain
in the current legislation. ["For instance, the current legislation does
not regulate some religious marriages such as the Hindu, Muslim
and other customary marriages that are practiced in some African or
royal families" (Department of Home Affairs, 2020)] The [envisaged]
new marriage act [in the form of single or omnibus legislation] will
enable South Africans of different sexual orientation, religious and
cultural persuasions to conclude legal marriages that will accord with
the doctrine of equality, non-discrimination and human dignity as
encapsulated in the Constitution of the RSA" (Department of Home
Affairs, 2021a). This was also reported in "South Africa is changing
its marriage laws from next year".
In the normal course of events, the Issue Paper and Discussion Paper
would stem from the Green Paper, and the Project Committee would
draft Bills based on a policy. What happened here was "a cart before
the horse approach". There was already an Issue Paper with the two
possibilities; there was a Discussion Paper with two Draft Bills which
totally left out the omnibus possibility or even the possibility of having
single pieces of legislation for all South African religious and cultural
communities. As indicated, the Green Paper basically makes allowances
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for all these three options (in the form of the SMS, an omnibus approach
where the MMB can become one of the chapters in the Act, and separate
legislation) (Department of Home Affairs, 2021b).
Suppose Muslim and other religious marriages are to be recognized
in terms of the proposed legislation. In that case, it remains to be seen
whether the provision will be made for religious authorities to act as
designated marriage officers and how this will be done.
As shown, when the DHA refers to the SMS, it indicates that it
is most likely unconstitutional. This is quite interesting and begs the
question of why the Discussion Paper would go ahead and propose an
SMS and request comments concerning it when the DHA's Green Paper
clearly indicates that it will most likely not pass constitutional muster.
Another point that is quite interesting concerns the matrimonial
property regime position in terms of the Green Paper and the Discussion
Paper.
Para 4.10 (pages 59 and 60) of the Green Paper states that '[c]
ivil marriages of black persons that were entered into before 1988 will
be brought on par with other marriages. However, going forward, no
marriage regimes should be regarded as a default position. All couples
must be provided with an opportunity to elect a particular marriage
regime knowingly.'
The DHA, in para 9 of its document summarizing the Green Paper,
reiterates the current status quo pertaining to marital regimes as follows:
'9.1 There are three marriage regimes applicable in South Africa in terms
of the Matrimonial Property Act 88 of 1984 [MPA]. That is marriage in
community of property, marriage out of community of property with
accrual, and marriage out of community of property without accrual.
9.2 Marriage in community of property is the default marriage regime
in South Africa. If the intending spouses marry without an antenuptial
contract, their marriage will be automatically in community of property.
9.3 Some religious marriages are automatically out of community of
property (South Africa, 2022).

The DHA further reiterates that their policy proposal is '[n]o
marriage regime should be regarded as a default position. During premarital counseling, the marriage officer must ensure that the intending
spouses understand the legal implications of a chosen marriage regime'
(South Africa, 2022).
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In so doing, it makes allowances for those Muslims wishing to
strictly abide with an understanding of the sharia that the assets of
spouses must be kept separately, to utilize and regulate their marital
regime as out of community of property without the accrual system.
While the consequences of a customary law marriage are the same
as the civil law, the recent unanimous judgment of the CC in Sithole
vs Sithole handed down on 14 April 2021 declared that all marriages
of black persons under s 22(6) of the colonial era Black Administration
Act 38 of 1927 are in a community of property. This is irrespective of
whether they occurred before the commencement of the MPA (1984),
the Marriage Act (1961), the CUA (2006), and the RCMA (1998). Since
the Court also ruled that the effect of the judgment is retroactive, this
means that all existing customary law marriages are now regarded as in
community of property, as is currently the case with all marriages under
the Marriage Act (1961) and the CUA (2006). However, Parliament is
yet to reflect the Sithole judgment in legislation. The public consultation
version of the Green Paper is dated 20 April 2021. Although it refers
to the outcome of the Sithole decision in the court a quo (KZN High
Court, p59, note 64), it does not refer to the CC case.
Point 8 of the Schedule to both Bills found in the Discussion
Paper (pages 148 and 166) states that '[t]he insertion after the definition
of "listed securities" of the following definition: "[s]pouse" for the
purposes of this Act [MPA] must be construed to mean in relation
to any person, the partner of such person in a relationship in terms
of the Protected Relationships Act, … (Act No. … of …)…' [at page
148] and '[t]he insertion after the definition of "listed securities" of the
following definition: "[s]pouse" for the purposes of this Act [MPA] must
be construed to mean in relation to any person, the partner of such
person in a relationship in terms of the Recognition and Registration
of Marriages and Life Partnerships Act, … (Act No. … of …);…' [at
page 166].
It is noted that the default position in terms of the MPA is in
community of property.
The DHA has set the following timeframes as a "roadmap" to meet
its planned performance target of implementing the marriage policy. It
appears that only the first step can be ticked off at this stage:
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"Gazetting the draft marriage policy [Green Paper] for public comments
by 30 April 2021[;] Submitting the marriage policy [White Paper] to
Cabinet for approval by 31 March 2022[;] Submitting the Marriage Bill
[new marriage legislation] to Cabinet for approval by 31 March 2023
[; and] Submitting the Marriage Bill to Parliament for approval by 31
March 2024" (South Africa, 2022).

Being cognizant that the promulgation of law is only anticipated
after 2024, the WLC hosted a webinar (From Litigation to Law Reform)
on 21 October 2021, which the co-authors of this article attended. The
online round-table discussion focused on the need for South Africa
to recognize Muslim marriages through legislation and the remedies
that must be put in place in the interim period for Muslim women
whose marriages are terminated by death or divorce to ensure them the
protection of the law. Therefore, the discussion also considered the need
to implement interim relief that the CC might provide.
Conclusion
This article has highlighted that a gap in our statutory law still exists
insofar as the recognition of Muslim marriages is concerned. The aim of
the visionary 2010 MMB was to formally recognize Muslim marriages
in South Africa for the first time. It is unfortunate that we have not
had the chance to see its application in practice because it has not yet
been approved and promulgated.
We contend that the MMB may have been of little value to the
women at the time (and the generations prior to them) who showed little
interest in it (they did not, for example, think of divorce as a concern).
However, for the subsequent generation with its higher divorce rate, the
recognition of Muslim marriages becomes imperative, especially since
Muslim women have little bargaining power in a divorce. The fact that
the then SALRC Project Committee managed to reach a Bill stage with
the MMB for the first time should therefore not be discounted. The then
Project Committee did not misread the situation - there was a need for
this type of recognition - it was just ahead of its time.
The current parallel initiatives to rationalize the recognition of all
types of marriages in South Africa for the first time, although duplicitous,
are therefore long overdue and should be welcomed. However, "the devil
will be in the detail" (Amien, 2020) since "…law reform cannot be
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implemented - or evaluated - in silos" (Osman, 2021: 3). It appears that
the outcome will result in religious marriages being regulated by a secular
State after 2024 when some resolution of the question of recognition of
Muslim marriages can be expected. This may yet mean that the 2010
MMB, which was not a "quick fix" solution, but a considered attempt
over several years to address the substantive inequality experienced by
especially Muslim women, could have a role to play and, therefore,
possibly be enacted. The awaited outcome of the CC judgment may
provide interim relief or even lead to different results.
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Najma Moosa1 and Muneer Abduroaf 2
1
The Department of Private Law, University of the Western Cape (UWC), South Africa.
2
The Department of Criminal Justice and Procedure (UWC), South Africa.
E-mail: 1nmoosa@uwc.ac.za, 2mabduroaf@uwc.ac.za
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