In a judgment that was handed down by the High Court in Pretoria on 11 May 2022, a portion of the Divorce Act was declared unconstitutional. Social media is abuzz with articles relating to the different legal principles, interpretations, and professional or personal opinions. 

The biggest talking point centres around whether the section in question is immediately “invalid”. High Courts have the authority to declare an Act, or a Section included in an Act unconstitutional. But this does not mean that it is immediately enforceable. The Constitutional Court of South Africa first needs to make a final decision. 

It is important to understand the powers that certain Courts in South Africa hold when dealing with Constitutional matters. 

Section 172 of the Constitution of South Africa provides guidance in this regard:

172.(1) When deciding a constitutional matter within its power, a court—

(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and 

(b) may make any order that is just and equitable, including— 

(i) an order limiting the retrospective effect of the declaration of invalidity; and 

(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect. 

(2) (a) The Supreme Court of Appeal, the High Court of South Africa or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but a Chapter 8: Courts and Administration of Justice 86 order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.

This means that Constitutional Court makes the final decision on whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and it must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a court of similar status before that order has any force.

In this current matter, an application has already been made to the Constitutional Court for the judgment to be confirmed. If the judgement is indeed confirmed and rubber-stamped by the Constitutional Court, it will have the effect that s 7(3)(a) of the Divorce Act is unconstitutional and invalid to the extent that it limits the operation of s 7(3)(a) to marriages out of community of property ‘entered into' before the commencement of the Matrimonial Property Act, 1984. It will only be in effect once the Constitutional Court has formally made confirmation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.