The Law Society of South Africa (LSSA) welcomes the decision by the Supreme Court of Appeal (SCA) in the matter: President of the RSA and Another v Women’s Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others (Case no 612/19)  ZASCA 177 (18 December 2020).
In this matter the LSSA made submissions as amicus curiae. ‘This is a judgement to be welcomed by thousands of women and children in the country. Many women and minor children did not benefit from the protection provided in the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979. This legislation did not recognise marriages solemnised in accordance with Muslim marriages as valid marriages for all purposes in South Africa’, says LSSA President, Mvuzo Notyesi.
The decision also provided for the protection and the welfare of minor or dependent children of Muslim marriages at the time of dissolution of a Muslim marriage in the same manner as the Act provides to safeguard the welfare of children of other marriages that are being dissolved.
The SCA quoted from the judgement of Moseneke J in the Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) case as follows: ‘This “persisting invalidity of Muslim marriages” is, of course, a constitutional anachronism. It belongs to our dim past. It originates from deep-rooted prejudice on matters of race, religion and culture. True to their worldview, judges of the past displayed remarkable ethnocentric bias and arrogance at the expense of those they perceived different. They exalted their own and demeaned and excluded everything else. Inherent in this disposition, says Mahomed CJ, is “inequality, arbitrariness, intolerance and inequity”.’
‘This clearly indicates the serious lack of consideration the state has paid to customary marriages in general and the prejudicial impact on women and children in the dissolution of these marriages. As a constitutional democracy, since 1994, this is a sad indictment of the legislature,’ adds Mr Notyesi.
ISSUED ON BEHALF OF THE PRESIDENT OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI
Nomfundo Jele nomfundom@LSSA.org.za Tel: (012) 366 8800 or 072 402 6344