Employing foreign nationals in South Africa

 In the recent Mukuru decision of Mukuru Financial Services (Pty) Ltd and Another v Department of Employment and Labour, the Court had to consider the facts supporting the contention that Makuru had no option but to employ foreign nationals rather than South African citizens or permanent residents. Did this constitute unfair discrimination?

Mukuru is a financial services provider that uses mobile technology to transfer money across Africa and Asian countries. They applied for a corporate visa to permit them to employ foreign nationals. To qualify, they had to do demonstrate to the Department of Employment and Labour (DEL) that despite conducting a diligent search to find suitable employees that were either South African citizens or permanent residency holders, it was not able to do so. The DEL refused to issue the necessary certificate as they were not satisfied with Mukuru’s attempts to employ South Africans.

Mukuru applied to court to review the DEL decision. The High Court was not persuaded by Mukuru’s explanation why it could not employ South Africans and found that South Africans were unfairly excluded from employment opportunities which constituted unfair discrimination on various constitutional grounds.

It is thus clear that South African employers must justify the employment of foreign nationals over South Africans. Whether an employer can do so, will depend on the facts of each case.

Muslim marriages recognised

This is a judgment of the Constitutional Court, declaring invalid certain provisions of the Marriage and Divorce Acts, and recognising Muslim marriages.

On application for confirmation of an order of constitutional invalidity granted by the Supreme Court of Appeal:

 1.      The Supreme Court of Appeal’s order of constitutional invalidity is confirmed:

 1.1.   The Marriage Act 25 of 1961 (Marriage Act) and the Divorce Act 70 of 1979 (Divorce Act) are declared to be inconsistent with sections 9, 10, 28 and 34 of the Constitution in that they fail to recognize marriages solemnized in accordance with Sharia law (Muslim marriages) which have not been registered as civil marriages, as valid marriages for all purposes in South Africa, and to regulate the consequences of such recognition.

 1.2.   It is declared that section 6 of the Divorce Act is inconsistent with sections 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 born of Muslim marriages, at the time of dissolution of the Muslim marriage in the same or similar manner as it provides for mechanisms to safeguard the welfare of minor or dependent children born of other marriages that are dissolved.

 1.3.   It is declared that section 7(3) of the Divorce Act is inconsistent with sections 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 section 9(1) of the Divorce Act is inconsistent with sections 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 that are dissolved.

 1.5.   The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages.

 1.6.   The declarations of invalidity in paragraphs 1.1 to 1.5 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 initiating and 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.

 1.7.   Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, it is declared that Muslim marriages subsisting at 15 December 2014, being the date when this action was instituted in the High Court, or which had been terminated in terms of Sharia law as at 15 December 2014, 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 section 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:

 (i)        shall take into consideration all relevant factors, including any contract or agreement between the relevant spouses, 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.

 1.8.   Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, it is declared that, from the date of this order, section 12(2) of the Children’s Act 38 of 2005 applies to a prospective spouse in a Muslim marriage concluded after the date of this order.

 1.9.   Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, for the purpose of paragraph 1.8 above, the provisions of sections 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 120 of 1998 shall apply, mutatis mutandis, to Muslim marriages.

 1.10. 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.

 1.11.The Department of Home Affairs and the Department of Justice and Constitutional Development shall publish a summary of the orders in paragraphs 1.1 to 1.10 above widely in newspapers and on radio stations, whichever is feasible, without delay.

 2.      The conditional cross appeal by the Women’s Legal Centre Trust, and the appeals by the South African Human Rights Commission and Commission for Gender Equality are dismissed.

 3.      The President and the Minister of Justice and Constitutional Development must pay the Women’s Legal Centre Trust’s costs of this application, including the costs of two counsel.