On Tuesday the Constitutional Court dismissed Justice Minister Ronald Lamola’s application for a 12-month extension to amend the 1998 Recognition of Customary Marriages Act, to allow for joint and equal property rights between wives and husbands in polygamous customary marriages that occurred before that 1998 law.

It was a last-minute ministerial bid — six weeks before the end of a two-year deadline for Parliament to amend the law by 29 November 2019 — needed apparently because “2018 and 2019 were atypical years in the legislative process due to the 2019 elections”.

Constitutional Court Judge Nonkosi Zoliswa Mhlantla, in a unanimous judgment, turned down the request for extra time. This was because the original 30 November 2017 judgment made provision for the interim relief to apply not only during the two years Parliament has had to pass an amendment, but also afterwards — just in case the national legislature didn’t manage to do that.

“Parliament was given sufficient time to address the issue. This court took a precautionary measure and made provision in the event that Parliament failed to do so…” wrote Mhlantla, citing from the original 2017 judgment by Judge Mbuyiseli Madlanga:

“In the event that Parliament finds the interim relief unacceptable, it is at liberty to undo it as soon as practically possible. Should Parliament fail to do anything during the period of suspension, the interim relief must continue to apply until changed by Parliament.”

And so the 2017 Constitutional Court-ordered interim relief Madlanga ordered remains in place: wives and husbands in polygamous customary marriages concluded before the 1998 Act “will have joint and equal ownership and other rights to, and joint and equal rights of management and control over, marital property” and these rights would be exercised “in the best interests of the family unit constituted by the house concerned”, while each spouse retains exclusive rights to their respective private property.

Section 7(1) of the Recognition of Customary Marriages Act that excluded the proprietary regime of polygamous customary marriages concluded before the 1998 act had been declared unconstitutional as it violated the right to dignity and the right not to be discriminated against.

Tuesday’s judgment raises critical issues for governance in a constitutional democracy.

Judges find themselves in an uncomfortable space of having to effectively write into the law interim relief orders to ensure South Africans’ rights are not contravened.

The judiciary has said on public record that this is not what it wants to do because lawmaking belongs to Parliament. That legislative prerogative as enshrined in the Constitution is deferred to in Madlanga’s 2017 judgment, and again by Mhlantla:

“In any event, Parliament is still at liberty to engage with the legislative process further and amend the Bill at will.”

But serious questions must be raised over the government’s capacity and willingness to govern, if the May 2019 elections and prior electioneering are cited as the reason for disrupted governance.

“(The justice minister) contended that 2018 and 2019 were atypical years in the legislative process due to the 2019 elections, which caused inevitable interruptions and changed the ordinary deadlines for government departments to submit bills to be passed,” said Tuesday’s judgment, adding that Lamola nevertheless had argued the Justice Department “acted reasonably and diligently in attending to the administrative procedure required before Parliament continues with the process”.

If public servants and officials were diligent, as the Constitutional Court was told, then governance fell flat because ministers decided electioneering during 2018 in the run-up to May 2019 was more important.

The mention of changed legislative deadlines must also be seen as a reference to Parliament’s contribution to the disruptions by approving a two-and-a-half-month mid-2018 recess for electioneering while 43 bills were in the legislative pipeline.

The national legislature finds itself at best on the back foot and at worst simply lacking. Missing a court-ordered deadline is a big deal.

Or as Mhlantla put it in Tuesday’s unanimous Constitutional Court judgment:

“It is trite that court orders must be complied with. It is imperative to the rule of law and the functioning of our constitutional democracy that court orders are respected. Parliament was given sufficient time to address the issue. This court took a precautionary measure and made provision in the event that Parliament failed to do so. It is now clear that Parliament will not be able to remedy the defect in time…”

While the dominant practice is for ministers and their departments to initiate legislation and bring draft laws to Parliament, nothing stops parliamentarians from making laws.

Most recently Parliament did so with committee bills such as the Public Audit Amendment Bill that gives the auditor-general more and sharper teeth to comply with audit findings, or the justice committee’s Promotion of Access to Information Amendment Bill that would make it possible to submit requests for political funding directly to a political party.

Parliament could have done so with this 2017 Constitutional Court-ordered amendment to the Recognition of Customary Marriages Act. If not actually through a committee bill, then at least putting pressure on Cabinet to fulfil its responsibilities. The deputy president has since 1994 traditionally served also as the leader of government business, or the liaison between the executive and national legislature, precisely to smooth out any potential kinks.

At Thursday’s meeting of Parliament’s programming committee, African Christian Democratic Party MP Steve Swart raised his concerns about Tuesday’s Constitutional Court judgment and, more generally, on Parliament’s ability to meet Constitutional Court timeframes.

His comments came a month after the programming committee was briefed on the status of the bills that needed amending following Constitutional Court judgments. All are related to the previous Parliament before the May 2019 elections.

Eighteen judgments by the Constitutional Court directed Parliament to amend 16 laws within a specified time frame.

According to the 31 October 2019 briefing by Parliament’s legal services to the programming committee, only in three instances was this achieved. Nine legislative amendment processes are still in progress. In two cases the Constitutional Court extended deadlines on request.

In one case, Parliament’s failure to meet the set deadline had an impact in law, according to the briefing document. But in the four cases that the national legislature failed to meet the deadlines, it did not have an impact in law. That’s because the judges had written relief provisions into the law.

And while the 31 October 2019 presentation did not specify any of the laws, Tuesday’s Constitutional Court judgment makes it clear one was the amendment of the Recognition of Customary Marriages Act.

The Recognition of Customary Marriages Amendment Bill is now before Parliament. The justice committee has received a briefing, but has not yet started processing. According to Parliament’s website, the bill has been referred to the National House of Traditional Leaders for input as part of the consultation process.

Lamola told the Constitutional Court in his request for an extension that 12 more months would be “sufficient”. On that argument, the amended law should be done and dusted by the end of November 2020.

The legislative clock has been reset, but it is ticking. And Parliament has its job cut out. DM