AL JAMA-AH pushes for compliance with Cinstitutional Court order that a shariah marriage is a valid South African marriage

RE: SUBMISSIONS REGARDING THE MARRIAGES BILL, 2022 (published for public comment in Government Gazette No. 48914 of 7 July 2023)

Preamble and failure to define a Sharia marriage in section 1

The implications of the Constitutional Court’s application of the Constitution of the Republic of South Africa, 1996, in the judgment Women’s Legal Centre Trust v President of the Republic of South Africa and Others (Commission for Gender Equality as Intervening Party, Muslim Assembly Cape and Another as amici curiae) 2023 (1) BCLR 80 (CC) (“WLCT”), which confirmed the recognition of Sharia marriages entered into in accordance with the tenets of Islam in South Africa (or entered into abroad, with the applicable law determined in terms of private international law by applying the legal principle of the lex loci domicilii of the husband at the time of the marriage), are profound. Any legislation adopted pursuant to such application of the Constitution that undermines this effect would not be constitutionally valid.

The approach adopted by the Minister of Home Affairs appears, ex facie, to comply with the court order, but it falls short of the court’s objective by incorrectly conflating (i) the ability to register such a marriage—and the principle that non‐registration does not affect validity—with (ii) the practical effect of the declared recognition of Sharia marriages as part of South African law.

The Marriages Bill, 2022, published in Government Gazette No. 48914 of 7 July 2023 (“the Bill”), was drafted out of necessity and, inter alia, to attempt to comply with the Constitutional Court’s order in WLCT, in terms of which the President, Cabinet and Parliament had to amend existing legislation or adopt new legislation to give effect to the declaration that Sharia marriages are part of South African law. It follows that this ought to have been one of the primary objectives of the Bill. Despite this, the preamble to the Bill makes no mention of the judgment.

Despite recent amendments to the Divorce Act, 1979 (Act 70 of 1979), which specifically defines a Sharia marriage, section 1 of the Bill does not define a Sharia marriage. Strangely, there appears to be a reluctance to do so in the Bill. Thus, there is legislation that specifically addresses the dissolution of a defined Sharia marriage, yet the Bill does not provide a mechanism for the creation of that very specifically defined marriage. This raises the crux of the submissions against the Bill: it does not recognise Sharia marriages because it fails to define what a Sharia marriage is, and because a marriage registered under the Bill would differ drastically from a Sharia marriage entered in accordance with even the basic prescripts of Islamic law. The submissions below highlight the absence of provisions essential to a valid Sharia marriage and how the current provisions amount to a radical departure from Islamic law—so much so that, on any interpretation of the Sharia, the proposed marriage could not be regarded as recognising Sharia marriages by the adoption of the proposed new legislation.

Validity, Solemnisation, and Formality

The Bill’s objectives, as set out in section 2, reveal that the focus is on adopting a single Act regulating all marriages to achieve administrative uniformity, rather than accommodating religious pluralism. This conflicts with the definition of a Sharia marriage, Islamic law (our customary law), and section 15 of the Constitution. The focus of the Bill is, therefore, misdirected.

Rationalisation versus Recognition (section 2(a))

The statement that the Act’s object is to “rationalise the marriage laws pertaining to various types of marriages” implies standardisation and uniformity across different marriage types. This approach fails to recognise the unique and essential requirements of a Sharia marriage. By attempting to rationalise Islamic law, the Bill ignores distinct, non‐negotiable requirements for such a valid marriage. The legislative objective should instead acknowledge the diverse types of marriages in South Africa without reducing their essential requirements to mere customs.

Prescribing validity requirements (section 2(b))

This section can only prescribe additional requirements for the registration of a valid marriage; it cannot serve to register a marriage where there has not been compliance with at least the essential requirements of a Sharia marriage. It would therefore amount to recognising and registering a Sharia marriage in circumstances where there has not been compliance with Islamic law.

Solemnisation of marriages (section 2(c))

The object to “provide for the solemnisation of marriages” implies that marriages are only valid when concluded by a designated state marriage officer. Given that most Imams are not currently designated officers, this creates a severe practical barrier: many Nikahs will not be legally valid under the Bill’s structure. Couples would again be required to register their marriage after a valid Nikah has been concluded.

Scope and recognition of unregistered unions (section 3)

Section 3 of the Bill provides a deeming provision aimed at curing the historical non‐recognition of, inter alia, most customary and religious marriages that could not be registered with the Department of Home Affairs and were consequently invalid merely because they could not be registered.

The first obvious difficulty with this provision is the unintended proprietary consequences for unregistered marriages, which would default to being in community of property. Such a result amounts to the arbitrary expropriation of a established communal estate—a transition contrary to the spouses’ original intentions and their long-standing understanding of their separate estates.

The second obvious difficulty is the differential treatment between marriages that were never registered but were dissolved before promulgation of the contemplated Act and marriages that were not registered but were still in existence at the time of promulgation.

Section 3 is not constitutionally valid, as it has unintended proprietary consequences for certain marriages depending on their status at the time of promulgation of the contemplated Act. There is no reason why the status of a former or existing marriage at a specified point in time should have entirely different consequences.

The third difficulty is that section 2 only deals with existing marriages that have not been registered with the Department of Home Affairs (DHA) at the time the contemplated Act is promulgated, and it amounts to different outcomes to those that previously existed but had dissolved at the time of promulgation.

These difficulties arise because this section automatically attaches legal consequences to all marriages (such as pension fund benefits, maintenance and inheritance) that were invalid but would now be regarded as valid and be regulated by the provisions of the Bill.

Further, it is crucial to include “statutory provision, regulation, directive or circular” in section 3 to clarify the position regarding a decision not to register a marriage during the interim period when the DHA took steps to make it possible and, therefore, necessary to register previously unrecognised and unregistered marriages.

Removing the requirement to register a marriage as a condition for validity in South African law is not a solution; it creates a myriad of unintended consequences that would remain constitutionally invalid.

This provision purports to reinforce the pluralistic nature of the South African legal system by listing only “legislation” and “the common law” as sources that attach consequences to marriages. It should also include ‘the applicable customary law ’to give effect to its objectives. Failing to include customary law as a source amount to non‐recognition of Sharia marriages.

Ensuring comprehensive recognition (section 4(1))

This section would amount to regulating Sharia marriages and, as such, the consequential amendment of customary law by virtue of section 211 of the Constitution. This is why the Bill must be compliant with Islamic law—and it is not.

It would be advisable for section 4(1) to be broadened to explicitly recognise ‘any other customary law or religious monogamous or polygamous marriag ’if the Bill becomes compliant with Islamic law.

Jurisdiction over minors (section 5(2))

Consent (section 6)

Voluntary consent by the spouse (not a family member or a person acting on the spouse’s behalf) is probably the most important requirement for the conclusion of a valid marriage under Sharia law. It is important that the Bill specify that consent must be both voluntary and personally given.

The following additional language would strengthen the requirement that both spouses must consent to the marriage:

‘The marriage officer must obtain the free and voluntary personal consent, both orally in the presence of at least two witnesses aged 14 years and older and in writing, from the spouses to be married in terms of this Act.’

This amendment is supported because it strengthens protection against forced marriages, placing a clear duty on the marriage officer to act in accordance with the law by proactively assessing the situation for coercion. However, to accommodate the religious custom of the Nikah, the section must provide flexibility.

Recommendation: Provision ought to be made available on the prescribed form where the marriage officer can attest to having received and accepted the oral and written consent of both spouses in the presence of at least two witnesses no younger than 14 years of age, and the written declaration by the officer should be treated as prima facie proof for the conclusion of the marriage. This, however, is only a separate initial administrative ceremony of the marriage. The conclusion of a Nikah is a fundamental ceremonial step that may have different requirements—for example, the consent of the first wife, and attendance by specified persons (depending on whether it is a monogamous or polygamous marriage). No provision is made for such a ceremony in the Bill.

The inclusion of a provision defining the age of majority (e.g., section 7 of the Bill) is unnecessary within the structure of this Bill and the definition provided by the Constitution. The mere reference to “a child” axiomatically determines what is meant with the use thereof.

The age of majority is already conclusively determined by the Constitution and statutorily implemented in terms of the Children’s Act. Furthermore, the Bill unnecessarily refers to the age of majority in subsequent sections (for example, in both section 8(1)—the requirements for validity of a monogamous marriage—and section 9(1)—the requirements for validity of a polygamous marriage—by specifically referring to “the age of 18 years”).

By including a standalone section 7, the Bill risks creating contextual confusion, conflating the fundamental capacity of a minor to enter into a marriage with the separate issue of a minor’s ability to consent to the marriage. The capacity to marry is dictated by the universal age of 18, irrespective of whether the parties can—or do— consent to the marriage itself. The dedicated marriage provisions (sections 8 and 9) are the appropriate place to refer simply to a person who is not a child.

To avoid ambiguity, the standalone section 7 defining the age of majority ought to be excluded from the Bill.

Requirements for a valid monogamous marriage (section 8)

The requirements stated in this section are insufficient, as they omit essential requirements of a Sharia marriage. While the Bill correctly mandates free and informed consent (section 8(1)(b)), consent must be given personally, with both parties present at the same location at the same time, and not by any person purporting to act on behalf of a spouse.

This goes beyond mere capacity and consent; it codifies the requirement that both parties must:

• understand what they are consenting to (the matrimonial consequences) and express—both orally and in writing—their intention to marry one another, proclaimed to the world and evidenced by written authentication by two witnesses present, both aged 14 years or older; and

• have the clear, mutual intention of concluding a marriage as understood in terms of the Bill.

The statutory veto in respect of marriages (section 9)

To the extent that this section still allows subsequent marriage(s) to be in community of property, this would be against Islamic law and an entirely foreign concept that could not fall within the ambit of what a Sharia marriage is.

Registration is not a requirement for validity (section 18)

Section 18(12) of the Bill raises the question whether, before the initiation of a divorce action, it would be a prerequisite to use the statutory remedy to rectify the register if it is incorrect, or whether the accuracy of the register is open to challenge in any divorce action in the absence prior rectification.

This omission of an express clause stating that failure to register does not render a marriage invalid leads to ambiguity as to the legislature’s true intention, which ought to be avoided by expressly stating the opposite.

Subordination of capacity in respect of property (section 19)

While section 19 grants all spouses to a marriage—equal legal capacity to contract, own property and litigate, it ought to be qualified by the limitations and exceptions provided by operation of other legislation specifically regulating certain aspects. The words ‘subject to the matrimonial property regime governing the marriage in terms of the Matrimonial Property Act, 1984 (Act 88 of 1984) ’are necessary to avoid unnecessary disputes regarding a spouse’s capacity to perform particular acts that may impact either his/her separate estate or the communal estate, if married in community of property.

The conclusion of a marriage can never be a Sharia marriage if the matrimonial property regime is in community of property. This section, therefore, creates an obligation on all seeking to conclude a Sharia marriage to conclude either an ante‐ or postnuptial contract (in terms of either this Bill or section 21 of the Matrimonial Property Act – which will include sections 87 and 88 of the Deeds Registries Act), failing which, it cannot be a recognised a valid Sharia marriage in Islamic law but only a valid marriage in terms of the Bill. By merely differentiating between different types of marriages and their default marital regimes, unnecessary hurdles and mistakes can be avoided.

The difficulties created by this section will also have a socio‐economic impact on a large portion of the South African population, having regard to the cost implications of the necessity to conclude an antenuptial contract. This is because the Muslim community largely comprises of indigenous African people (as defined in the Bill).

It should be kept in mind that section 9 necessitates the dissolution of a communal estate before a husband is able to conclude an additional marriage. If the default regime is that a marriage is in community of property, irrespective of whether they are registered or not, this would have significant implications on what was intended to be a Sharia compliant marriage and create insurmountable administrative and legal difficulties and the need for Government to unnecessarily make additional resources available to resolve the difficulties created by the Bill.

The financial penalty on religious practice (section 20)

Despite this section contravening the tenets of the Muslim faith and consequently amounting to an infringement of section 15 of the Constitution, it has the effect that any husband who enters into a polygamous marriage without an antenuptial contract is automatically married in community of property to his second wife. In the absence of any other prior agreement, as provided earlier in the Bill, such a marriage will diminish his share to less than one‐third of what would then be a communal estate among three spouses.

The Bill regulates the proprietary consequences of marriages by, for instance, providing remedies already provided for in section 21 of the Matrimonial Property Act and sections 87 and 88 of the Deeds Registries Act. There is no rationale for broadening the limited application of section 21 of the Matrimonial Property Act to existing marriages to change their marital regime when the parties never intended to—and did—enter into a marriage with a particular marital regime applicable thereto. The legislature is expecting the courts somehow to find a resolution to the problems this Bill unnecessarily creates by attempting to lump all marriages together and avoiding having to define different types of marriages.

Given that the majority of Muslim people in South Africa are within the lower socio‐economic category, the requirements and obligations to conclude a valid Sharia marriage that has the correct proprietary consequences render the Bill unfairly discriminatory by forcing those perons to incur costs to prevent violating the tenets of their faith. The Bill thus penalises the exercise of religious rights—an outcome not contemplated by the Constitutional Court.

Addressing the WLCT judgment

The Constitutional Court in WLCT found that the prior non‐recognition of Muslim marriages created a “vulnerability” that resulted in systemic rights violations. The Marriages Bill, 2022, must be interrogated as to whether it substantively remedies the specific infringements.

The Court held that the failure to recognise Sharia marriages unfairly discriminated against Muslim women on the basis of religion, gender and sexual orientation (section 9 of the Constitution). This non‐recognition stripped them of the protections of the Divorce Act, treating their unions as “unworthy” of legal status, thus violating their inherent dignity (section 10 of the Constitution). Furthermore, the lack of a legal forum to adjudicate proprietary disputes upon divorce effectively denied them access to justice (section 34 of the Constitution). This means that the difficulty was the consequences that flowed from the non-recognition and that the mere recognition does not amount to equality. This is because equality is not achieved by treating different people the same way. Equal recognition of different religions requires provisions that cater for their differences. Applying the same formalistic approach to Sharia marriages as to other types of marriages produces inequitable outcomes and does not remedy the profound indignity caused by their historical non-recognition.

Formal versus substantive equality under the Bill

While the Bill provides a mechanism for the recognition of Sharia marriages (addressing formal equality), it fails to achieve substantive equality. Sharia marriages that are by default also in community of property unless an expensive antenuptial contract is registered with the Registrar of Deeds creates a barrier to conclude a Sharia marriage that is compliant with its religious prescripts.

In summary, despite the WLCT judgment, the following infringements persist:

• The rights to equality, human dignity and freedom of religion: people of the Muslim faith are still unfairly discriminated against by being forced to conclude an antenuptial contract to be able to enter into a Sharia‐compliant marriage; and

• The Bill fails to treat Sharia marriages as equal by attempting change the customary law by legislating customary law which only creates formalistic barriers and unintended changes to the proprietary rights of spouses that are in conflict with what spouses intended when they agreed to marriage in accordance with what the Sharia prescribes. The President of South Africa, his Cabinet and Parliament will fail with their obligation amend existing legislation or adopt new legislation remedying the wrongs of the past and preventing the continuation of inequality, indignity and failure to recognise the differences between a Sharia marriage and other religious and cultural customary marriages. This attempt, with a one Bill fits‐all secular approach should be approached from a different angle, appreciating and recognising fundamental differences between the types of marriages and including essential elements of the different types of marriage that are specific and applicable to only them but not all of them.

Conclusion

The Bill requires a fundamental shift from being a formality‐based Bill to a substance‐based Bill that gives the intended consequences of concluding a valid Sharia marriage in terms of Islamic law, as contemplated by the Constitutional Court in the WLCT judgment.

Hon. Ganief Hendricks, MP President of Al Jama-ah