The Contribution of the Courts in the Integration of Muslim Law into the Mixed Fabric of South African Law

Chapter 16
The Contribution of the Courts in the Integration of Muslim Law into the Mixed Fabric of South African Law

Christa Rautenbach

Contemporary South African law is the product of its historical development.1 Two main factors played a role in shaping South Africa’s legal system. First, the settlement of the white population more than 500 years ago introduced Western legal systems into South Africa.2 To start with, the Dutch East India Company established itself in the Cape of Good Hope in 1652, bringing with it the law of the rulers of the province of Holland, which was Roman-Dutch law.3 The replacement of Dutch rule by British rule in the 1800s saw the seepage of English principles into the legal system, though Roman-Dutch law remained the general law of the land to a large extent.4

The second factor that affected the development of law was the presence of indigenous communities on South African soil. At first, little attention was paid to the laws of the indigenous communities,5 and the black population was left to rule itself to a certain degree during Dutch rule (du Bois 2004: 10). After the second British occupation, especially from the 1830s onward, the presence of black people on occupied or conquered land became problematic.6 Initially, black communities became subject to indirect rule, but eventually a parallel system of law developed, one for the white population and one for the black population.7 In addition, the legal position of the black population differed in the various territories.8 In 1927, the various territories were unified, and in line with the unification policies of the newly formed Union of South Africa, the Union parliament enacted the notorious Black Administration Act,9 which was “[t]o provide for the better control and management of Black affairs” in the whole of South Africa.10 The act remained in force when the Republic of South Africa was formed in 1961, and even after large parts of it were repealed in 2005, certain parts remain in force.11

The two factors referred to provided the setting for South African law as it is today. Over a period of more than 340 years, the official law evolved into a distinct mixed legal system comprising transplanted colonial laws (the core being Roman-Dutch law, subsequently influenced by English common law),12 known as the common law of South Africa,13 as well as indigenous laws, referred to as African customary law.14 Over the years, the coexistence of these two legal systems, one based on Western legal principles and the other on African legal principles, has provided a wonderful playground to lawyers and legal scholars alike.15

A few other kids on the block also want to play, however, especially in the area of family law. Adherents of Islam, for example, have been immigrating to South Africa since the late 1600s.16 Although Dutch colonials prohibited the practice of Islam in public places or the conversion of heathens or Christians to Islam, British colonials gave Muslims religious freedom in the 1800s.17 The latest available statistics reveal that 654,064 of a total of about 44 million people in South Africa adhere to Islam—about 1.5 percent of the total population.18 This number might appear to some as trivial, but although they are a very small minority, Muslims generally feel that they have the right to regulate their lives in terms of their own legal system—namely, Muslim personal law.19 To date, Muslim personal law and, more specifically, Muslim marriages, fall outside the legal mainstream (so-called state law or official law), and Muslims receive almost no legal recognition from the state (Roodt 1995: 50). In general, Muslim communities observe their legal rules in the private sphere, and observances thereof are overseen by religious institutions such as the Jamiat-ul-Alama. The institutions’ pronouncements are binding only inter partes, and dissatisfied parties cannot approach the South African courts to enforce or appeal their findings (Rautenbach 2010: 119).

The Muslim community, in particular, has made numerous attempts to have aspects of Muslim personal law, at the very least Muslim marriages, recognized (Amien 2010: 363, 365). As early as 1860, the South African courts refused to recognize the validity of Muslim marriages because of their potentially polygynous nature. Chief Justice William Hodges, who delivered the majority judgment in Bronn v. Frits Bronn’s Executors,20 was highly critical of Muslim marriages, which he felt had not yet “embraced the greater blessings which they would obtain by Christian marriage, by which I mean of course marriage to one wife, which, among the heathen ought to be sanctioned and encouraged by law.”21 In a typical paternalistic fashion, the chief justice expressed the opinion that

[b]y embracing marriage [according to the law of the Cape colony at that time], polygamy and incest among them [the Muslims] will be checked and discontinued; their wives will be placed under the protection of the law, and a step will thus be taken in the right direction to prepare them for the legitimate blessings accompanying Christian marriage.22

This judgment was delivered in the former Cape colony, but the aversion for Muslim marriages continued in the South African courts after unification. The locus classicus dates back more than 80 years—namely, Seedat’s Executors v. The Master (Natal).23 Again the Appellate Division’s main reason for disliking Muslim marriage had to do with its adherence to Christian values, which disallowed polygyny:

Polygamy [polygyny] vitally affects the nature of the most important relationship into which human beings can enter. It is reprobated by the majority of civilized peoples, on grounds of morality and religion, and the Courts of a country which forbid it are not justified in recognizing a polygamous union as a valid marriage.24

The viewpoint in the Seedat’s case represented the stance of the courts for many years to come. In 1983, the Appellate Division confirmed once more in Ismail v. Ismail25 that a Muslim marriage is contra bonos mores and invalid on the following grounds:26

• There was no justification to deviate from the long line of decisions in which the courts refused to give recognition to Muslim marriages.

• The concept of polygyny would undermine the monogamous status of civil marriages.

• The marriage laws of South Africa were designed for monogamous marriages, and the recognition of polygynous marriages would create practical problems.

• The recognition of Muslim marriages would be in conflict with the principle of equality between marriage partners.

• Muslims have the right to convert their de facto monogamous marriages into de jure monogamous marriages in terms of the provisions of the Marriage Act27 and there is thus no excuse for them not doing so.

• The fact that a Muslim marriage is regarded as contra bonos mores also renders the consequences of such a marriage contra bonos mores, making validation of the marriage contract concluded between the two spouses impossible.

In the past few years, however, these grounds seem to have disappeared behind a line of decisions, the first being Ryland v. Edros,28 that gradually recognized certain aspects of Muslim law, thus contributing to the integration of Muslim law into the mixed fabric of South African law. This chapter discusses some of the pioneering cases that have been instrumental in the integration of Muslim personal law into the mixed legal system of South Africa. In doing so, the chapter highlights the factors leading up to the courts’ inability to integrate aspects of Muslim law into South African law or to give recognition thereto, the factors contributing to the liberal approach taken by the courts after 1994, the methodology followed by the courts in giving recognition to certain aspects of Muslim law after 1994, and finally, the prospects of future legislative recognition of Muslim law.

Why the Change of Heart?

South African judges are the products of their social or cultural background, their legal education, and the formal structures in which they operate. In other words, the judicial functions of a judge will undoubtedly be influenced by the context in which he or she operates. Moreover, important developments in the political dispensation of South Africa since 1994 play an important role in the administration of justice. Before democratic changes were brought about, principles such as parliamentary sovereignty and the limitation of judicial powers regarding the testing of legislation prevented the courts from developing the law, even when fairness dictated otherwise.

Former Boundaries Preventing Judicial Innovation

Although an investigation of all the factors shaping the judiciaries’ mindset before 1994 falls outside the scope of this discussion, some of these factors must be briefly discussed. First, it is no secret that judges were mostly white males of the Christian faith, thereby making it “highly improbable that the interests and needs of the non-élite and non-white citizens of the country would have been foremost in the judge’s minds” (Corder 1984: 15). The Seedat’s and Ismail cases illustrate this point. In both cases, the judges obviously considered the facts before them in light of the values of their own social groups. As pointed out by Forsyth (1985: 13): “Judges, like all human beings, are, to a greater or lesser extent, the product of their past lives. They remain unique.”

A second factor, particularly in the case of judges who held office before 1994, concerned their legal training and tradition. Under the influence of the English legal tradition, South African judges then adhered to principles such as legal positivism29 and iudicis est ius dicere sed non dare.30 In addition, many judges had been educated academically and professionally in England (Corder 1984: 15), and English law was seen as one of the historical sources of South African law (du Plessis 2002: 273).

The third factor contributing to the conservative stance taken by some of the former judges has to do with the doctrine of stare decisis (that is, the doctrine of judicial precedent)31 followed by the South African courts. According to this doctrine, courts must abide by or adhere to principles established by decisions in earlier cases, especially those higher in the hierarchy. Thus, a court would be highly unlikely to deviate from former decisions, such as Seedat’s and Ismail, without good reason.32

A fourth factor that affected the functions of the judiciary was the constitutional framework of the former government, which was based on the British Westminster model and the doctrine of parliamentary sovereignty.33 During the 1970s, Chief Justice Ogilvie Thompson encapsulated the function of the court as follows: “In South Africa a judge must interpret the enactments of legislatures and administer the law, not as he would like it to be, but as it is set out in the relevant statutory provisions” (Thompson 1972: 32–34). Corder (1984: 18) aptly summarized the predicament the judges were in during those years as follows:

[T]here can … be no doubt that most of the forces of tradition, training, and structure, backed by the judges’ sense of social and political reality, indicated the path of caution, formalism and reserve prescribed for the judiciary by British constitutional history and practice. It was obviously of little concern to the authorities at that time that the Union Parliament was governing an entirely different and heterogeneous population, compared with that in Britain. With the benefit of hindsight and as a result of tragic historical developments, it can be seen that they were misguided not to have allowed for the peculiar nature of Southern Africa’s complexities.

A last factor worth mentioning is the judiciary’s inability to test or review the validity of legislation, an incidence of section 34(3) of the former Republic of South Africa Constitution Act,34 which stipulated that “no court of law shall be competent to inquire into or pronounce upon the validity of an Act of Parliament.”35

The Seedat’s and Ismail cases previously discussed emanated from a time when the sovereignty of the South African parliament was not debatable, long before the commencement of a new constitutional order under a supreme36 and justiciable constitution, and during a time when segregation policies deepened the divide between cultural and racial groups. The Ismail case was the last judgment from the Appellate Division on the issue of a Muslim union before the 1993 constitution came into operation, followed by the current, or final, constitution.37 These two constitutions changed the nature of the playing field considerably,38 as this chapter will show.

Constitutional Unchaining: The Liberation of the Judiciary

A new constitutional dispensation came into effect in 1994 and, for the first time, not only could all South Africans participate in the lawmaking process through democratic elections but the courts were also afforded new powers to ensure that they would administer justice without fear or prejudice. Section 165 of the final constitution is perhaps the most important provision regarding the judiciary’s newly found authority. It stipulates:

(1) The judicial authority of the Republic is vested in the courts.

(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

(3) No person or organ of state may interfere with the functioning of the courts.

(4) Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

(5) An order or decision issued by a court binds all persons to whom and organs of state to which it applies.

In addition, parliamentary sovereignty has been replaced by the rule of law, which is listed as one of the founding values of the constitution.39 In Pharmaceutical Manufacturers Association of SA; In Re: Ex Parte Application of President of the RSA,40 the Constitutional Court emphasized the importance of the rule of law and declared as follows:

It is a requirement of the rule of law that the exercise of public power by the executive and other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with this requirement. It follows that in order to pass constitutional scrutiny the exercise of public power by the executive and other functionaries must, at least, comply with this requirement.41

To avoid the mistakes of the past, where the courts had no testing powers if legislation was concerned, the constitution now expressly states that a court may inquire into or rule on the constitutionality of any legislation or any conduct of the president.42 It is imperative, however, that the declaration of unconstitutionality be referred to the Constitutional Court to be confirmed; otherwise it will not have any force.43 As alluded to by du Plessis (2002: 84), courts have to refrain from abusing their testing powers because this “right” interferes (albeit in an authorized manner) with the legislative powers of the democratically elected legislature. They should thus use judicial constraint when striking down a legislative provision.44

Linking up with the newly established testing powers of the courts is their so-called developmental function, a function that has also been instrumental in their transformation from law interpreters to lawmakers. A fair number of constitutional provisions refer to this function of the courts. Section 8(3)(b) commands a court to develop the common law if necessary to give effect to a right in the Bill of Rights.45 Section 39(2) instructs the courts to promote the values of the Bill of Rights when interpreting any legislation and when developing the common law. Last but not least, section 173 confirms that the courts46 “have the inherent power to develop the common law, taking into account the interests of justice.”

Although the view has been taken that sections 39 and 173 of the 1996 constitution exclude the operation of the doctrine of judicial precedent,47 Shabalala v. Attorney-General, Transvaal; Gumede v. Attorney-General, Transvaal48 confirmed that the 1993 constitution does not

mean that the established principles of stare decisis no longer apply. Such an approach would justify a single Judge departing from a decision of a Full Bench in the same Division because he considered the interpretation given to the Constitution by the Full Bench to be in conflict with the Constitution, with resultant lack of uniformity and certainty, until the Constitutional Court … had pronounced upon the question.49

A similar stance with regard to the final constitution was taken in 1999 in Bookworks (Pty) Ltd v. Greater Johannesburg Transitional Metropolitan Council,50 where the court had the opportunity to revisit the question of the applicability of the doctrine of judicial precedent under the final constitution. It came to the conclusion that the changes in the final constitution did not free a lower court from the duty to adhere to superior precedent and “[t]o hold otherwise would be to invite chaos.”51 In 2001, in Ex Parte Minister of Safety and Security in Re: S v. Walters,52 the Constitutional Court confirmed this decision and held:

According to the hierarchy of courts in Chapter 8 of the Constitution, the SCA [Supreme Court of Appeal] clearly ranks above the High Courts. It is “the highest court of appeal except in constitutional matters.” Neither the fact that under the interim Constitution the SCA had no constitutional jurisdiction nor that under the (final) Constitution it does not enjoy ultimate jurisdiction in constitutional matters, warrants a finding that its decisions on constitutional matters are not binding on High Courts. It does not matter … that the Constitution enjoins all courts to interpret legislation and to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights. In doing so, courts are bound to accept the authority and the binding force of applicable decisions of higher tribunals.53

Not surprisingly, exceptions exist to the doctrine of judicial precedent. Most notably, a court will deviate from previous decisions where it is satisfied that the previous decision was wrong or “where the point was not argued or where the issue is in some legitimate manner distinguishable.”54

Additionally, the interpretive function of the courts has evolved from one that gives effect to clear and unambiguous legal texts irrespective of the unjust effects of their application (the positivistic approach)55 to one that involves “making constitutional choices by balancing competing fundamental rights and freedoms,” which can only “be done by reference to a system of values extraneous to the constitutional text itself, where these principles constitute the historical context in which the text was adopted and which help to explain the meaning of the text.”56

As a final point and in response to what was said initially regarding the social background and legal education of the judges, I must reiterate that although the demographic composition of the judiciary has changed remarkably since 1994,57 their legal training, especially on a tertiary level, has remained fairly similar.

Judicial Integration of Aspects of Muslim Law into South African Law

Attempts by aggrieved Muslim parties to have certain aspects of their personal law recognized by the South African courts failed miserably in the previous constitutional dispensation. However, since 1994, the courts have had the power to develop the common law if justice requires it. By virtue of section 8(3) of the constitution, a court must (in its application of a provision of the Bill of Rights) develop the common law if necessary to give effect to or to limit a right. In addition, section 39(2) of the constitution compels a court to “promote the spirit, purport, and objects of the Bill of Rights” when developing the common law. Finally, section 173 of the constitution confirms that a court has the inherent power “to develop the common law, taking into account the interests of justice.”

In the context of Muslim family law, the first decision willing to develop the common law to give recognition to the contractual consequences of a Muslim marriage was the Ryland case.58 In this case, the two parties concluded a de facto monogamous Muslim marriage in 1976. Their marriage did not comply with the provisions of the Marriage Act59 and was therefore regarded as invalid. In 1992, the husband (the plaintiff) divorced his wife (the defendant) by serving the talaaqi on her. Thereafter, he instituted an action in court to evict her from the house that they shared as husband and wife. The defendant defended the action and instituted a counterclaim60 based on the “contractual agreement” constituted by their Muslim marriage. During the pretrial proceedings, both the defendant and the plaintiff agreed that the defendant would vacate the house and that the husband would pay half her costs with regard to her counterclaim. The remaining issue, which the court had to decide, was the defendant’s counterclaim and, more specifically, the validity of the marriage contract. Before the court could decide this issue, it had to decide if the Ismail case,61 which previously held that a Muslim marriage was contra bonos mores, prevented the parties from relying on the marriage contract that formed the basis of their Muslim marriage. The court held that public policy is a question of fact,62 which can change if the facts on which it is based change. If the 1993 constitution brought about a change in the factual position of public policy, the Ismail case could be revised. The 1993 constitution required a reappraisal of the basic values on which public policy was based. If the “spirit, purport and objects” of the 1993 constitution and the basic values underlying it were in conflict with the view regarding public policy expressed in the Ismail case, then the values underlying the 1993 constitution had to prevail.63 The court then considered whether the underlying values of the 1993 constitution were in conflict with the views regarding public policy expressed in the Ismail case and came to the conclusion that it could not be said that the contract arising from a Muslim marriage was “contrary to the accepted customs and usages which are regarded as morally binding upon all members of our society” or was “fundamentally opposed to our principles and institutions” as expressed in the Ismail case.64 The court based its decision on the fact, among others, that the viewpoints of only one group in a multicultural society had been taken into consideration and found that

it is quite inimical to all the values of the new South Africa for one group to impose its values on another and that the Courts should only brand a contract as offensive to public policy if it is offensive to those values which are shared by the community at large, by all right-thinking people in the community and not only by one section of it.65

Second, the court referred to the principles of equality and of diversity and the recognition that South African society is a multicultural society. These principles were among the values that underlined the 1993 Constitution. In the court’s opinion these values “irradiate” the concept of public policy that the courts have to apply and came to the conclusion that the “values underlying the [1993] Constitution is such that neither of these grounds for holding the contractual terms under consideration in this case to be unlawful can be supported.”66 In the end, the court concluded that the marriage contract was not contra bonos mores, and the result was that the Ismail case no longer operated “to preclude a court from enforcing claims such as those brought by” parties to a Muslim union.67

The Ryland case was thus the first case that developed the common law to recognize certain matrimonial consequences of a Muslim marriage as reflected in the marriage contract. It provided the first crack in the wall to allow the integration of Muslim law into the already mixed legal system of South Africa. Although Ryland was immediately regarded as a landmark case regarding the rights of Muslims in South Africa, its effect was limited. No recognition was given to Muslim marriages; only the marriage contract that constituted a Muslim marriage that was recognized as a valid contract. In addition, the court did not deal with polygynous Muslim marriages, and up to 2004, a great deal of uncertainty existed regarding the legal consequences of a polygynous Muslim marriage.68 Last, although the fear has since proved to be unfounded, the decision came from the Cape Provincial Division, and the possibility existed that other high courts could follow a different route because of the doctrine of judicial precedent.69

In 1999, the Supreme Court of Appeal, in Amod v. Multilateral Motor Vehicle Accident Fund (Commission for Gender Equality Intervening),70 had the opportunity to discuss the legal consequences of a Muslim marriage again, but only after the case took its course in two other courts.71 This time the facts revealed that the parties concluded a marriage in accordance with Muslim rites in 1989. Four years later, the husband died in a motor accident and his widow (the appellant) claimed compensation for loss of support from the Multilateral Motor Vehicle Accident Fund. The fund denied liability for payment on the ground that the couple’s marriage was invalid under South African law. The appellant contended, however, that her deceased husband had a contractual obligation to support her. The question before the Durban High Court (the court a quo) was whether the fund was legally liable to compensate the appellant for her loss of support.72 In terms of South African common law, such a liability would exist if the deceased was (during his lifetime) under a common law duty to support the appellant. Because of the Ismail case, however, such a duty did not exist if the parties had been married under Muslim law. Although the court agreed that the present law of South Africa resulted in the unequal treatment of persons before the law, it could not change the law to allow illegally married persons to claim compensation.73

The appellant applied for leave to appeal directly to the Constitutional Court,74 but that court held that the crucial question was whether the common law should be developed to allow the appellant to claim damages for support. This question, according to the Constitutional Court, is one that falls primarily within the jurisdiction of the Supreme Court of Appeal, and the application for leave to appeal was dismissed.

The appellant then approached the Supreme Court of Appeal, and the facts of the case were again considered in Amod v. Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening).75