For more than two decades, the South African law did not recognise Muslim marriages as valid marriages. The only manner in which the South African law would recognise Muslim marriages, was if the parties marry in terms of the Muslim religion (Sharia law) and also enter into a second marriage in terms of the provisions of the Marriages Act, Act 25 of 1961 (hereinafter the Marriages Act) or the Civil Union Act, Act 17 of 2006 (hereinafter the Civil Union Act). During 2014 over a hundred Imams (Muslim clerics) completed a three-day course, to learn the provisions of the Marriages Act. This was an attempt to accredit Imams as marriage officers in terms of the Act and to enable them to solemnize Muslim marriages for recognition purposes. Some Muslim people, however do not need recognition of their marriages by Government and therefore most opt to marry only in accordance with Islamic rites. 
The most prominent reasoning behind the non-recognition of Muslim marriages, related to the fact that these marriages are sometimes polygamous and the Marriages Act and its requirements for a valid civil marriage (amongst others), insist on monogamy between a man and a woman.  Some of the other reasons relate to traditional practices such as Muslim wives not being present during the marriage ceremony, the husband being entitled to repudiate the marriage one-sidedly by uttering the word “talaqi” three times. 
Some individuals within the Muslim community, had other practices where wives were not allowed to divorce or leave their husbands and husbands were entitled to collect their wives to restore the marital relationship. Guardianship over minor children rested with the husband and not with both parents.   These practices (amongst others), were in direct contradiction with the provisions of the Divorce Act, Act 70 of 1979 (hereinafter the Divorce Act) and later the Children’s Act, Act 38 of 2005 (hereinafter the Children’s Act). 
With the abolishment of marital power in the South African law, some of these minority practices were difficult to recognise with the contradicting provisions of the Marriages Act and Fundamental rights entrenched in the South African Constitution, 1996 (hereinafter the Constitution).  There is however, a general misconception about the Islamic religion and an idea that Muslim women are oppressed. A deeper understanding of the Islamic religion, brings the realization that Muslim women were emancipated by Islam and not oppressed as generally believed. 
The Constitution in Section 15 (Freedom of religion, belief and opinion), Section 10 (Human dignity) and Section 9 (Equality), makes provision for recognition of any traditional and or religious prescripts, to enable the Legislature to enact legislation to give recognition to these and other religious marriages, as long as same is in line with the Constitution.  The Legislature managed to enact the Recognition of Customary Marriages Act, 120 of 1998 (hereinafter the Customary Marriages Act) which also had its challenges but there was still no recognition for Muslim Marriages. 
On 18 December 2020, after 26 years, the Supreme Court of Appeal delivered judgment in favor of the recognition of Muslim marriages in 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 [2020] ZASCA 177 (18 December 2020). The Supreme Court of Appeal ordered as follows: 
1 The appeal and the cross-appeals succeed in part and the order of the court a quo is set aside and replaced with the following order:
“1.1  The Marriage Act and the Divorce Act are declared to be inconsistent with ss 9, 10, 28 and 34 of the Constitution of the Republic of South Africa, 1996, in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) as valid marriages (which have not been registered as civil marriages) as being valid for all purposes in South Africa, and to regulate the consequences of such recognition.
1.2  It is declared that s 6 of the Divorce Act is inconsistent with ss 9, 10, 28(2) and 34 of the Constitution insofar as it fails to provide for mechanisms to safeguard the welfare of minor or dependent children of Muslim marriages at the time of dissolution of the Muslim marriage in the same or similar manner as it provides mechanisms to safeguard the welfare of minor or dependent children of other marriages that are being dissolved.
1.3 It is declared that s 7(3) of the Divorce Act is inconsistent with ss 9, 10, and 34 of the Constitution insofar as it fails to provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just.
1.4 It is declared that s 9(1) of the Divorce Act is inconsistent with ss 9, 10 and 34 of the Constitution insofar as it fails to make provision for the forfeiture of the patrimonial benefits of a Muslim marriage at the time of its dissolution in the same or similar terms as it does in respect of other marriages.
1.5 The declarations of constitutional invalidity are referred to the Constitutional Court for confirmation.
1.6 The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages. 
1.7  The declarations of invalidity in paras 1.1 to 1.4 above are suspended for a period of 24 months to enable the President and Cabinet, together with Parliament to remedy the foregoing defects by either amending existing legislation, or passing new legislation within 24 months, in order to ensure the recognition of Muslim marriages as valid marriages for all purposes in South Africa and to regulate the consequences arising from such recognition. 
1.8  Pending the coming into force of legislation or amendments to existing legislation referred to in para 1.7, it is declared that a union, validly concluded as a marriage in terms of Sharia law and subsisting at the date of this order, or, which has been terminated in terms of Sharia law, but in respect of which legal proceedings have been instituted and which proceedings have not been finally determined as at the date of this order, may be dissolved in accordance with the Divorce Act as follows:
(a)  all the provisions of the Divorce Act shall be applicable save that all Muslim marriages shall be treated as if they are out of community of property, except where there are agreements to the contrary, and
(b)  the provisions of s 7(3) of Divorce Act shall apply to such a union regardless of when it was concluded.
(c)  In the case of a husband who is a spouse in more than one Muslim marriage, the court shall:
(i) take into consideration all relevant factors including any contract or agreement and must make any equitable order that it deems just, and;
(ii)  may order that any person who in the court’s opinion has a sufficient interest in the matter be joined in the proceedings.
1.9 It is declared that, from the date of this order, s 12(2) of the Children’s Act  applies to Muslim marriages concluded after the date of this order.
1.10 For the purpose of applying paragraph 1.9 above, the provisions of ss 3(1)(a), 3(3)(a) and 3(3)(b), 3(4)(a) and 3(4)(b), and 3(5) of the Recognition of Customary Marriages Act shall apply, mutatis mutandis, to Muslim marriages.
1.11 If administrative or practical problems arise in the implementation of this order, any interested person may approach this Court for a variation of this order.
1.12 The Department of Home Affairs and the Department of Justice & Constitutional Development shall publish a summary of the orders in paragraphs 1.1 to 1.9 above widely in newspapers and on radio stations, whatever is feasible, without unreasonable delay.’
2    In the matter of Faro v The Minister of Justice and Constitutional Development and Others (Case no 4466/2013), no order is made in relation to the cross-appeal. It is recorded that:
2.1  In recognition of the fact that there currently are no policies and procedures in place for purposes of determining disputes arising in relation to the validity of Muslim marriages and the validity of divorces granted by any person or association according to the tenets of Sharia law (Muslim divorces) in circumstances where persons purport to be spouses of deceased persons in accordance with the tenets of Sharia law and seek to claim benefits from a deceased estate in terms of the provisions of the Intestate Succession Act 81 of 1987 and/or the Maintenance of Surviving Spouses Act 27 of 1990, the Minister of Justice undertakes within 18 months of the granting of this order to put in place the necessary mechanisms to ensure that there is a procedure by which the Master may resolve disputes arising in relation to the validity of Muslim marriages and Muslim divorces, in all cases where a dispute arises as to whether or not the persons purport to be married in accordance with the tenets of Sharia law to the deceased persons and seek to claim benefits from a deceased estate in terms of the provisions of the Intestate Succession Act 81 of 1987 and/or the Maintenance of Surviving Spouses Act 27 of 1990;
2.2 In the event that the Minister of Justice fails to comply with the undertaking in para 2.1 the appellants may enrol the appeal in this Court on the same papers, duly supplemented, in order to seek further relief.
3 The Appellants (the President and the Minister of Justice) shall in respect of the matter under case no 13877/2015 (Esau) pay Ruwayda Esau’s costs in respect of claim A (including the costs of the appeal and cross-appeal) such costs to include the costs of three counsel to the extent of their employment.
4 In respect of the matters under Case nos 22481/2014 and 4466/2013:
4.1 Paragraph 8 of the order of the Western Cape Division of the High Court shall stand, in terms whereof the President, the Minister of Justice and the Minister of Home Affairs are to pay the costs of the Women’s Legal Centre Trust respectively, such costs to include the costs of three counsel to the extent of their employment.
4.2 The President and the Minister of Justice shall pay the Women’s Legal Centre’s costs of the appeal and the cross-appeal, such costs to include the costs of three counsel to the extent of their employment. “ 
Although the Supreme Court of Appeal referred the various sections of the relevant Acts to the Constitutional Court, to declare same inconsistent with the provisions of the Constitution and had given the President, Cabinet and Parliament, 24 months to either amend the Divorce Act and Marriages Act, or enact new legislation, the Court ensured that all provisions of the respective Acts will apply to Muslim couples, with immediate effect. 
The judgment is commendable, in that the Court prevented further injustice to the Muslim Community who wanted recognition of their marriages.  The Court ensured that pending the amendment of the respective Acts or enactment of other legislation, that Muslim marriages are immediately recognised and all the consequences in respect of divorce, death and minor children, are protected by laws during this process.  One cannot help to wonder if the majority of Muslim people will still opt to marry religiously, notwithstanding the judgment or will they conform to this new development? The real question is whether to conform to the new development, is in line with Islamic laws...
Sue-Mari Swanepoel 
January 2021