A Brief Analysis of the Judgment in Women's Legal Centre Trust v President of the Republic of South Africa 2022 5 SA 323 (CC)





Muslim marriages, Nikahs, Womens Legal Centre, Islamic Law


On 28 June 2022 the apex or Constitutional Court (CC) handed down a much-awaited judgment which impacts upon Muslim marriages concluded purely in terms of Islamic law in South Africa. Does the judgment mean that such Muslim marriages are now fully recognised for all purposes in the South African legal context? The simple answer is "no". The rationale for this conclusion is to be found in the two-pronged judgment. The first part of the judgment is wholly suspended and will only and automatically come into effect if remedial legislation is not enacted in 24 months. The second part of the judgment pertains to an interim order which takes effect immediately and applies retrospectively to all Muslim marriages that subsisted on 15 December 2014 (when the case was first launched by the Women's Legal Centre in the Western Cape High Court) and to Muslim marriages which, although terminated before that date, were still subject to ongoing legal proceedings at that date. While the case note briefly refers to the first part of the judgment, the main purpose of this case note is to highlight some of the practical problems that could be encountered by couples when effect is given to the orders pertaining to the interim relief granted in terms of the second part of the judgment. The problem areas are highlighted by looking at the CC judgment in the light of three fictitious scenarios. The case note provides a few critical comments on the judgment and ends with a few concluding remarks. Past experience leads us to expect that tangible progress will take place only by 2024, a date which coincides with South Africa's next presidential election. Until then the non-recognition of Muslim marriages will continue to prove burdensome to Muslim women and children.


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Author Biographies

Muneer Abduroaf, University of the Western Cape

Senior Lecturer, Department of Private Law, University of the Western Cape, South Africa

Najma Moosa, University of the Western Cape

Senior Professor, Department of Private Law, University of the Western Cape




Abduroaf M "Analysis of the Women's Legal Centre Trust Case" July 2020 De Rebus 33-34

Abduroaf M The Impact of South African Law on the Islamic Law of Succession (LLD-thesis University of the Western Cape 2018)

Amien W, Moosa N and Rautenbach C "Religious, Personal, and Family Law Systems in South Africa" in Rautenbach C (ed) Introduction to Legal Pluralism in South Africa 6th ed (LexisNexis Durban 2021) 67-81

Moosa N "South Africa: The Implications of Varying Statutory Minimum Age Thresholds for Child Consent in Respect of Minors Granted Majority Status Through Civil Marriage in South Africa" in Brinig M (ed) International Survey of Family Law (Intersentia Cambridge 2018) 493-525 DOI: https://doi.org/10.1017/9781780687780.027

Moosa N "Muslim Divorce and the 1996 Divorce Amendment Act: The Cart Before the Horse?" October 1999 De Rebus 33-37

Moosa N and Abduroaf M "Implications of the Official Designation of Muslim Clergy as Authorised Civil Marriage Officers for Muslim Polygynous, Interfaith and Same-Sex Marriages in South Africa" in Brinig M and Banda F (eds) The International Survey of Family Law (LexisNexis Bristol 2017) 323-359

Moosa N and Abduroaf M "The New Framework Planned for the Legal Recognition and Regulation of Muslim Marriages in a Secular South Africa: From Litigation to Law Reform" 2022 Ahkam Jurnal Ilmu Syariah 1-34 DOI: https://doi.org/10.15408/ajis.v22i1.26076

Case law

Women's Legal Centre Trust v President of the Republic of South Africa 2022 5 SA 323 (CC)


Age of Majority Act 57 of 1972

Children's Act 38 of 2005

Child Law, 2008 (Egypt)

Constitution of the Republic of South Africa, 1996

Divorce Act 70 of 1979

Marriage Act 25 of 1961

Matrimonial Property Act 88 of 1984

Recognition of Customary Marriages Act 120 of 1998

Government publications

Draft Muslim Marriages Bill, 2010

Internet sources

Africa Child Policy Forum 2015 Minimum Age of Marriage Under the Laws of African Countries http://www.africanchildforum.org/clr/Harmo

nisation%20of%20Laws%20in%20Africa/other-documents-harmonisation_3_en.pdf accessed 18 August 2022

LexisNexis date unknown "Mutatis Mutandis Definition: What does Mutatis Mutandis Mean?" https://www.lexisnexis.co.uk/legal/glossary/mutatis-mutandis#:~:text='Mutatis%20mutandis'%20translates%20to%20',main%20point%20remains%20the%20same accessed 18 August 2022

Morocco World News 2019 "Moroccan Courts Approved 25,920 Child Marriage Requests in 2019" https://www.moroccoworldnews.com/

/01/292105/2019-child-marriage-morocco-statistics accessed 18 August 2022

Munajjid Shaykh Muhammad Saalih date unknown "Islam Question and Answer: Ruling on Setting a Particular Age for Marriage" https://islamqa.info/en/answers/177280/ruling-on-setting-a-particular-age-for-marriage accessed 18 August 2022

Muslim Judicial Council (SA) 2022 MJC(SA) Welcomes the Constitutional Court Ruling on the Recognition of Muslim Marriages https://mjc.org.za/2022/07/07/mjc-sa-welcomes-the-constitutional-court-ruling-on-the-recognition-of-muslim-marriages/ accessed 2 September 2023



How to Cite

Abduroaf, M., & Moosa, N. (2023). A Brief Analysis of the Judgment in Women’s Legal Centre Trust v President of the Republic of South Africa 2022 5 SA 323 (CC). Potchefstroom Electronic Law Journal, 26, (Published on 31 October 2023) pp 1 – 15. https://doi.org/10.17159/1727-3781/2023/v26i0a14595



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