On 31 August 2018, a Full Bench of the Western Cape High Court handed down a far-reaching judgment in two matters brought by the Women’s Legal Centre and Mrs R Essau. In that decision, the Full Bench ordered the Executive and Parliament to pass legislation providing for the recognition and dissolution of marriages concluded in terms of Islamic Law and for related matters. The Full Bench gave Government two years within which to enact such legislation. In the absence of this legislation being passed, the Full Bench has crafted an Order which will then regulate the recognition and dissolution of marriages concluded in terms of Islamic Law.
The President has consulted with the Ministry of Justice and other members of the Executive. A decision has been taken to appeal the Full Bench decision for three primary reasons.
First, Mrs R Essau has lodged an appeal with the Constitutional Court because the Full Bench did not give her immediate relief in a marriage that has already been dissolved in terms of Islamic Law. The Women’s Legal Centre has not lodged a similar appeal.
Second, the Full Bench decision has acknowledged that Government is already in the process of researching an Omnibus Law that will deal with the recognition and dissolution of all religious marriages. Despite acknowledging this, the Full Bench has nevertheless ordered the Executive and Parliament to enact and pass legislation dealing with marriages under Islamic Law and to do so within a specific period.
Third, the effect of the Full Bench decision is that it has immediate implications now on all other religious marriages which have not been registered as secular marriages in terms of the Marriage Act. Similar litigation could well follow from members of other religious groups, based on the precedent established in the Full Bench decision. In short, the judgment impacts beyond the sphere of marriages concluded under Islamic Law.
For these primary reasons, the President and the Minister of Justice have taken a decision to appeal the judgment of the Full Bench. They will do so upon the basis that they remain committed to complete the process that they have already commenced, and that is, to pass one law governing all religious marriages. The issues presented with respect to religious marriages are complex and wide ranging and any legislation must be preceded by what will likely be a lengthy and vigorous public participation process which of necessity will have to involve all religious groups in the country.
However, the appeal is necessary because an appeal court will either confirm or reject the Full Bench decision and it is this appellate decision which will then apply throughout the entire country and bring certainty in that regard.
More importantly, an appeal court decision will also bring certainty on certain fundamental constitutional principles, such as:
1. the separation of powers and the extent to which Courts may order Government to pass legislation and to do so on a specific issue;
2. the issue of inequality and discrimination of women generally and particularly those in religious marriages which have not been registered as secular marriages; and
3. the permissible powers of the Executive, and in turn, the Legislature, in fulfilling their constitutional role in our democracy by determining how best to address such matters.
For these reasons the President and the Minister of Justice will shortly deliver an appeal against the Full Bench decision (in both matters) and will oppose the appeal of Mrs R Essau.
Source: Government of South Africa