IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA HELD AT BRAAMFONTEIN
CASE NO: CCT 13/09
In the matter between:
WOMEN’S LEGAL CENTRE TRUST APPLICANT
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 1st RESPONDENT
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT 2nd RESPONDENT
MINISTER OF HOME AFFAIRS 3rd RESPONDENT
SPEAKER OF THE NATIONAL ASSEMBLY 4th RESPONDENT
CHAIRPERSON OF THE NATIONAL COUNCIL
OF PROVINCES 5th RESPONDENT
UNITED ULAMA COUNCIL OF SOUTH AFRICA Amicus Curiae
And in the matter of the application for leave to intervene by:
LAJNATUN NISAA-IL MUSLIMAAT
(ASSOCIATION OF MUSLIM WOMEN IN SOUTH AFRICA)
_____________________________________________________________
SUBMISSIONS OF AMICUS CURIAE UNITED ULAMA COUNCIL OF SOUTH AFRICA
ADMITTED ON 6TH APRIL 2009
_____________________________________________________________
1.
The submissions of the United Ulama Council of South Africa (“the amicus”), in light of the directions of the Chief Justice, dated 6th April 2009 are set forth below, hereinafter.
2.
The crucial question to be answered is whether or not the obligations contended for by the Applicant,1 are obligations within the meaning of section 167 (4) (e) of the Constitution.
3.
The amicus contends that the constitutional obligation contemplated in section 167 (4) (e) is an obligation not related to the validity of a law based on “content inconsistency”.
The challenge to the constitutional validity of a law, is the challenge contemplated by section 172 of the Constitution.
see: Doctors For Life International v Speaker of the NA 2006 (6) SA 416 (CC)
per Ngcobo J at pages 432 - 433
per Yacoob J at page 511 – 512, par 263
1 see, paras 13.1 and 13.2 at pg 10 of Applicant’s submissions dated 15th April 2009.
4.
On this approach, the amicus respectfully submits that the constitutional obligations contended for by the Applicant fall within the ambit of section 167 (4) (e), with the result that this Court has exclusive jurisdiction to determine the current matter.
5.
The amicus accordingly submits that the reference to “the President” in section 167 (4) (e) can only be a reference to the President in his or her capacities as set forth in the Constitution, namely, her or his constitutional obligations in terms of sections 83, 84, 85, 91 and 92.
6.
It follows that the amicus respectfully disagrees with the distinction sought to be drawn by the First, Second and Third Respondents between the obligations of the President, acting individually, as opposed to the collective decision – making function of the Cabinet.
7.
The amicus further submits that the State has positive express constitutional obligations entrenched in the:
7.1 Founding provisions and values (section 1 (a) and (c));
7.2 The supremacy clause (section 2);
7.3 The fulfilment of rights clause (section 7 (2)),
to guarantee that every person is able to assert and effectively access the rights embodied in the Bill of Rights, without obstacle or impediment. Every right in the Bill of Rights must necessarily impose a corresponding obligation. Hence, the words “the nature of any duty imposed by the right” in section 8 (2) of the Bill of Rights are significant.
8.
Human Dignity of Muslim Women : Section 10 of the Bill of Rights
8.1 The amicus submits that the wording of section 10 imposes affirmative obligations upon the State. As was stated by Cachalia et al2:
2 See Cachalia, Cheadle, Davis, Haysom, Maduna & Marcus: Fundamental Rights in the New Constitution (1994) at 33.
“The rights protected by this section certainly include the right of persons to have their dignity respected by the state in its dealings with or treatment of them and may go so far as to require of the state that it protects their dignity against attack by others. The implication of such a reading is the imposition of a duty on the state to provide mechanisms, legal or otherwise, by means of which a citizen can ensure that his or her dignity is not improperly or unlawfully impaired by others.
Even the phrase “respect for” imposes positive obligations such as to establish accessible legal remedies, according to the European Commission (see: Airey v Ireland 2 EI-IRR.305)”.
8.2 Justice O’ Regan has emphasised the cardinal importance of dignity both as a founding value and an enforceable right under the Constitution in the following insightful statement in Dawood:
“The value of dignity in our Constitutional framework cannot therefore be doubted. The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it too, to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings. Human dignity therefore informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights.
This Court has already acknowledged the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel, inhuman or degrading way, and the right to life. Human dignity is also a constitutional value that is of central
significance in the limitations analysis. Section 10, however, makes it plain that dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected.”
see: Dawood v Minister of Home Affairs at para 35 (2000) (3) SA 936 (CC)
8.3 In the Supreme Court of Canada, Justice Iacobucci described the concept of human dignity as follows:
“Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, and merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognise the full place of all individuals and groups within Canadian society.”
see: Law v Canada (1999) 60 CRR (2d) 1 (SCC) 22. This was cited with approval in this Court in National Coalition for Gay and Lesbian Equality and others v Minister of Home Affairs and others 2000 (2) SA 1 (CC) para (41), note 50
(underlining for emphasis)
8.4 The amicus in this regard specifically submits that Muslim women have in the past suffered and continue to suffer a gross and manifest infringement of their rights to human dignity, entrenched in section 10 of the Bill of Rights, in inter alia the following circumstances:
8.4.1 The right of terminating a Muslim marriage by way of talaq is vested in the husband. (“the talaq”);
8.4.2 If the husband refuses to issue or pronounce a talaq for whatever reason, the wife is compelled to seek a decree for the termination of her Muslim marriage on recognised valid grounds (known as faskh);
8.4.3 The current situation is that Muslim women are compelled to approach Muslim religious bodies for a termination of their Muslim marriages, in the situation where their husbands refuse to grant them a talaq;
8.4.4 In certain cases, the husband refuses to submit to mediation or appropriate dispute – resolution initiated by a Muslim religious body. He deliberately withholds the talaq, causing great hardship, oppression and misery to the woman;
8.4.5 In the result, the woman spouse is left “suspended”, without remedy, and is precluded from remarrying according to Islamic Law;
8.4.6 If the husband chooses to take another wife, the serious problems and consequences, including property issues, are manifestly compounded in these circumstances;
8.4.7 In this context, the amicus submits that the state has an immediate and urgent positive constitutional obligation to ensure that the foundational human dignity rights of Muslim women are effectively accessed and implemented, by enacting appropriate legislation3 to enforce and fulfil such fundamental rights in order to secure effective and enforceable relief, in accordance with Islamic Law. If this Court does not intervene, the substantial harm to Muslim women may be irreversible in the circumstances. Hence, on any basis, this is an exceptional case for direct access, in the interests of justice.
3 The Indian legislature intervened as early as 1939 by passing a statute known as the Dissolution of Muslim Marriages Act, 1939 : see: Statute-Law relating to Muslims in India – A study in Constitutional & Islamic Perspectives – Institute of Objective Studies New Delhi – 25 by Tahir Mahmood at pgs 143 – 145.
9.
Moreover, such oppressed women are effectively, in the circumstances, denied their right to “practise their religion” within the meaning of section 31 (1) (a) of the Bill of Rights. As stated by Justice Sachs in Christian Education South Africa, the section 31 associational rights have the effect of:
“negatively enjoining the State not to deny them the rights collectively to profess and practise their own religion.”
see: Christian Education South Africa v Minister of Education 2000 (1) BCLR 1051 (CC) at page 1062, par 23, F – G;
2000 (4) SA 757 (CC) page 772, E – G.
10.
The Rule of Law
10.1 It may be argued that Muslim men and women are not precluded from approaching the Court for appropriate relief, on an incremental, case-by-case basis;
10.2 Such an approach leads to much uncertainty and confusion, with potentially conflicting decisions, on important incidents and consequences of Muslim Family Law.4
10.3 By analogy, the following statement of Justice Moseneke in Daniels is apposite:
“Another important consideration relates to the rule of law. The problem of readily importing interpretations piecemeal into legislation is the precedent it sets.
Courts below will follow the lead and readily interpret rather than declare invalid statutes inconsistent with the Constitution. However, constitutional re- interpretation does not come to this Court for confirmation. The result may be that high courts develop interpretations at varying paces and inconsistently. This makes for an even more fragmented jurisprudence and would have deleterious effects on how people regulate their affairs. It is highly undesirable to have an institution as important as marriage recognised for some people in some provinces and not in others. The rules of law requires legal certainty”.
(underlining for emphasis)
see: Daniels v Cambell NO & Others 2004 (5) SA 331 (CC), par 104
4 For example, Rhia Moolla sought to have her monogamous Muslim marriage, which was terminated by a talaq, declared to be a marriage in Community of Property. This case was brought in the NPD under Case No. 1835/06 and was settled on the 4 May 2007.
DATED AT DURBAN ON THIS 4TH DAY OF MAY 2009.
________________________
M.S. OMAR, duly admitted to appear in THE HIGH & CONSTITUTIONAL COURTS
M.S. OMAR & ASSOCIATES Suite 1603, Nedbank House 30 Albert Street
DURBAN
REF: M. S. Omar/um TEL: (031) 3063282 FAX: (031) 3053539 DOCEX 182
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LIST OF AUTHORITIES
1. Doctors for Life International v Speaker of National Assembly: 2006 (12) BCLR 1399 (CC)
2006 (6) SA 416 (CC)
2. Law v Canada (1999) 60 CRR (2d) 1 (SCC) 22.
(1999) 170 DLR paras 52 - 54
3. Christian Education South Africa v Minister of Education 2000 (1) BCLR 1051 (CC)
2000 (4) SA 757 (CC) page 772 E - G
4. Daniels v Cambell NO & Others 2004 (5) SA 331 (CC)
5. Dawood, Shalabi & Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC)
6. Cachalia, Cheadle, Davis, Haysom, Maduna & Marcus – Fundamental Rights in the New Constitution (1994)
7. Statute – Law relating to Muslims in India, Tahir Mahmood, a study in Constitutional and Islamic Perspectives, published by Institute of Objective Studies, 1995
