Minister of Justice and Correctional Services v Ramuhovhi and Others

This application was a sequel to Ramuhovhi I, in which the Constitutional Court declared section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 constitutionally invalid on 30 November 2017 for unjustifiably limiting the right to dignity and the right not to be discriminated against unfairly. The declaration of invalidity was suspended for 24 months to afford Parliament the opportunity to correct the defect. The suspension period was due to expire on 29 November 2019. On 15 October 2019, only six weeks before the expiry date, the Minister of Justice and Correctional Services applied to the Constitutional Court seeking an extension of the suspension period for another 12 months until 30 November 2020. The Minister submitted that the Department and Parliament had been unable to timeously enact new legislation, citing 2018 and 2019 as atypical years due to the 2019 elections. The application was unopposed, with the first, second, third and tenth respondents filing notices to abide.

• Whether the Constitutional Court should grant an extension of the suspension period for the declaration of constitutional invalidity
• What factors should be considered when exercising discretionary remedial power to extend suspension periods
• Whether Parliament had complied with the court's order in Ramuhovhi I
• The application of paragraph 6 of the Ramuhovhi I order which provided that the interim regime would continue to apply if Parliament failed to address the defect during the suspension period

The application for an extension of the suspension of invalidity was dismissed. Paragraphs 5(a) and 5(b) of the order in Ramuhovhi I would continue to apply after 29 November 2019. There was no order as to costs.

The binding legal principles established are: (1) Where a court order contains clear and unequivocal provisions addressing non-compliance with a suspended declaration of invalidity, those provisions must be given effect; (2) An extension of a suspension period will only be granted if it serves a practical purpose and is in the interests of justice; (3) The power to extend periods of suspension of declarations of invalidity must be exercised sparingly; (4) Court orders must be complied with as this is imperative to the rule of law and the functioning of constitutional democracy; (5) Where a court order provides that an interim regime will continue to apply after the expiry of a suspension period if Parliament fails to remedy the defect, the lapsing of the suspension period does not create a legal vacuum or justify an extension - the interim regime simply continues to operate as ordered; (6) Parliament's ability to continue with legislative processes is not contingent upon an extension of a suspension period.

The Court made two non-binding observations: First, regarding the Minister's explanation for the delay, the Court noted that while the Minister attempted to justify the need for an extension (citing 2018 and 2019 as atypical years due to elections), this explanation did not change the fact that Ramuhovhi I was clear that paragraph 5 would continue to apply if Parliament did not effect legislative amendments in time. Second, regarding timing, the Court observed that the extension application was lodged only six weeks before the expiry of the suspension and commented that failing to approach the Court timeously for extension applications is not desirable. However, the Court indicated that in this particular case, an in-depth evaluation of the explanation or timing was not necessary because neither would assist - the order sought would not serve any practical purpose regardless of these factors.

This case is significant for several reasons: (1) It demonstrates the Constitutional Court's commitment to enforcing compliance with its orders and upholding the rule of law, even against organs of state such as Parliament; (2) It clarifies that the Court will exercise its discretionary power to extend suspension periods sparingly and only where it serves a practical purpose; (3) It confirms that clear and unequivocal court orders, particularly those containing contingency provisions for non-compliance, must be respected and followed; (4) It sends a strong message that organs of state cannot rely on late applications for extensions when they have been given reasonable time to comply with court orders; (5) In the context of customary law reform, it ensures that vulnerable groups (particularly wives in pre-Act polygamous customary marriages) continue to receive protection through the interim regime established by the Court until Parliament enacts appropriate legislation; (6) It reinforces the principle that the Legislature can amend legislation at any time in accordance with its processes, and an extension of a suspension period is not necessary for Parliament to continue its legislative work.