MUSLIM MARRIAGES RECOGNISED

There has been a significant development regarding the marital rights of Muslim women in South Africa after a judgment handed down by the Constitutional Court in June 2022.

In 2014, The Women’s Legal Centre Trust (WLCT) brought an application in the Western Cape High Court. The legal context out of which this application was brought is briefly as follows.

The Marriages Act 25 of 1961 fails to define the notion of ‘marriage’. However, this lack of legislative clarity has hindered rather than helped those married under Sharia law (Muslim marriages). The prevailing judicial and legislative sentiment has been that due to the potentially polygamous nature of a Muslim marriage, such religious unions are repugnant to public policy and therefore without legal effect. This has meant that if one were to conclude a marriage in terms of Sharia law, those party thereto would still be treated us unmarried individuals unless a separate civil union was also concluded. Naturally if the law does not recognise a marriage as legally valid, the dissolution thereof would not be subject to any regulatory legislation. In this sense, the Divorce Act 70 of 1979 does not afford protection to the dissolution of marriages concluded in terms of Sharia law, leaving Muslim women with little agency in terminating these marriages – under Sharia law, the power to dissolve a marriage is largely viewed as vesting exclusively in the husband.
With reference to this legal background, the High Court application brought by the WLCT sought an order compelling the State to implement legislation that would afford legal recognition to, and the regulation of marriages concluded in terms of Sharia law. This application was opposed by the State, including the President and the Minister of Justice and Constitutional Development who lodged an appeal to the Supreme Court of Appeal (SCA) following judgment in favour of the WLCT. 
At the SCA, the state parties conceded that the Marriage Act and the Divorce Act did in fact infringe on the Constitutional rights to equality, dignity and access to courts of women in Muslim marriages. This concession limited the scope of the SCA’s interrogation to whether the State is under a Constitutional obligation to provide legislative recognition and by extension, protection to marriages concluded under Sharia law.
On 5 August 2021, the Constitutional Court was presented with the opportunity to confirm the order coming out of the SCA and solidify the legal status of marriages concluded under Sharia law. In a judgment penned by Acting Justice Tlaletsi, the Constitutional Court confirmed the position taken by the SCA, holding that sections 6, 7(3) and 9(1) of the Divorce Act were unconstitutional and invalid. The Court further held that the common law definition of marriage is unconstitutional to the extent that it fails to recognise Muslim Marriages.
So where does this leave us? The President and Cabinet, together with Parliament now have a 24-month window in which they must “remedy the foregoing defects by either amending existing legislation, or initiating and passing new legislation.” In essence, by 28 June 2024 at the latest, marriages concluded under Sharia law shall be recognised as legally valid and giving rise to the same rights and obligations incurred by virtue of marriage in the traditional legal sense. The Court also provided a degree of interim relief that shall afford provisional protection primarily to women in Muslim marriages during the rectification window – see paragraphs 1.7 – 1.11 of the judgment for further details.

Written by: Daniel Prevost (Candidate Attorney)

For more information please contact Rifqah Omar at romar@bissets.com or via:

Switchboard:   021-441 9800
Website:  www.bissets.com
Bissets Whatsapp:  072 370 0416 – our Client Liaison, Tracy, will put you in contact with the relevant professional.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E & OE).

UNDERSTANDING CONFIDENTIALITY AND LEGAL PROFESSIONAL PRIVILEGE

In the process of rendering a proficient legal service, the minds and offices of industry practitioners often become crypts, places harboring the secrets and intricacies of clients that otherwise would have been taken to the grave. While legal professionals require a holistic factual matrix in order to comprehensively respond to a client’s instruction, eliciting such information from a client requires a proverbial carrot – an incentive to disclose all the relevant facts, even if doing so has the potential to paint the client in a negative light. This sentiment was crisply summed up in the English case of Balabel and Another v Air India where the Court noted “A man must be able to consult his lawyer in confidence since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent.”

From this starting point, one can consider what is meant by confidentiality and legal professional privilege.

Legal practitioners have a contractual duty of confidentiality which obliges them not to reveal or use information bestowed upon them by their client. This duty arises from the contract of mandate between the legal practitioner and the client as well as from the fiduciary relationship that exists between them. The concept of confidentiality is, however, a broad one and one that exists in many professional environments. It is also uncommon for contracting parties in other contexts to include a ‘confidentiality clause’ which requires the parties to the contract to keep the content of the agreement to themselves.

On the other hand, legal professional privilege is a doctrine unique to the legal sphere. It is a substantive rule of law which allows a client to prevent his legal representative from disclosing certain communications to third parties. It is fundamental in ensuring the proper functioning of the legal system.

Legal professional privilege can be notionally divided into litigation privilege and legal advice privilege.  Legal advice privilege relates to communications between a lawyer and client whereby legal advice is given or is sought. Litigation privilege pertains to any advice given in contemplation of litigation. There are, however, principles applicable to both types of legal privilege:

1. The legal privilege belongs to the client and not the legal practitioner. It therefore the client who must claim the privilege and the client who can waive this right.
2. In order for legal professional privilege to be claimed the legal advisor must have been acting in a professional capacity and have been consulted by the client in confidence. The effect of this is that casual chats between a legal advisor and client in a social setting is may not be protected as legally privileged.
3. The communication between the legal advisor and client must have been for the purpose of obtaining legal advice.

While a powerful concept that aides the wheels of justice to remain in motion, legal professional privilege is not absolute. Communications which pertain to the facilitation of the commission of a crime or fraud are not protected as privileged communications. That is to say that privilege can only operate within ambit of legality. Furthermore, legislation or public interest can pierce the shield of legal privilege. For example, section 46 of the Promotion of Access to Information Act 2 of 2000 requires public entities to disclose information, regardless of privilege, in the event that such disclosure would bring to light “evidence of substantial contravention or a failure to comply with the law” or “an imminent and serious threat to safety or environmental risk […] where public interest in the disclosure clearly outweighs the harm [of overriding the privilege]”.

The relationship between legal practitioner and client is a unique one and one which is protected by both the practitioner’s duty of confidentiality and the client’s right to legal professional privilege. It is useful to understand these concepts as they remain important aspects of any legal matter in which you may find yourself.

Written by: Daniel Prevost (Candidate Attorney)

For more information please contact Savanna Kanzler at skanzler@bissets.com or via:

Switchboard:   021-441 9800
Website:  www.bissets.com
Bissets Whatsapp:  072 370 0416 – our Client Liaison, Tracy, will put you in contact with the relevant professional.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E & OE).

IS A FINANCIAL INSTITUTION REFUSING YOU ACCESS TO CREDIT BECAUSE OF A DEFAULT JUDGEMENT?

An adverse civil judgment against a person’s name can greatly affect their ability to obtain credit and is often only noticed when they approach a financial institution to apply for credit. It is important to take legal advice as soon as one becomes aware of this situation.

Typically, default judgment for payment of a debt or a liquidated demand will be granted against a defendant if they fail to deliver a notice of intention to defend an action within the time stated in the summons. Or if they fail to deliver a plea or subsequent pleading within the time stated in Court Rules.

On failure of the defendant to defend the action, the plaintiff may lodge with the Clerk of the Court a written request for judgment in default. Should default judgment be granted and subsequently registered with a credit bureau this may prevent the judgment debtor from successfully applying for credit at a financial institution.

Fortunately, the law in South Africa does allow for this judgment to be set aside or rescinded by the Court. This can be done on application by the judgment debtor to the relevant Court within a time period specified by the Rules of the Court.

The following are examples of grounds upon which an application for rescission of the default judgment may be brought:

– If the judgment debtor has a valid defence that they had not raised as a result of having no knowledge to the legal proceedings. For instance, if the judgment debtor did not receive the summons notifying them of the legal action on grounds that it was served on an incorrect address.

– If the judgment debt, the interest thereon at the rate granted in the judgment and the costs have been paid in full or the judgment debtor has obtained a paid-up letter or confirmation from the judgment creditor.

– If the party who obtained judgment against you (judgment creditor) consents to the rescission or variation of the judgment.

Rescission procedure (in terms of Magistrate’s Court Rule 49):

The following general steps apply when bringing an application for rescission:

1. The judgment debtor must give notice to the judgement creditor and any other parties to the original case that they are bringing a rescission application.

2. This application is ordinarily supported by an affidavit setting out the grounds of the judgment debtor’s application.

3. Once the Court has granted an order rescinding the judgment, the applicant may notify the various credit bureau in South Africa to ensure that the judgment is removed from their credit profile and their records are updated.

The implications of judgments being made against a person can be serious and it is therefore important to approach an attorney as soon as you become aware of a default judgment against you.

Written by: Unathi Mayekiso (Candidate Attorney)

For more information please contact Amy van Dyk (Senior Associate) at avandyk@bissets.com or via:

Switchboard: 021-441 9800
Website: www.bissets.com
Bissets Whatsapp: 072 370 0416 – our Client Liaison, Tracy, will put you in contact with the relevant professional.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E & OE).