Another delay, but a key concession in realising Muslim women’s rights in marriage
The Women’s Legal Centre is hopeful that the President and the Minister of Justice will meet their Constitutional obligations and that a resolution will be found by the end of the Court’s term next month.
Cape Town, 26 August 2020 – The Supreme Court of Appeal (SCA) was tasked with the hearing of the President and the Minister of Justice’s appeal against the Western Cape High Court order instructing them to enact legislation to recognise Muslim marriages on 25 and 26 August 2020.
This has been a twenty-year long journey for the Women’s Legal Centre (WLC) and for the hundreds of Muslim women who seek legal advice on how to protect their rights in marriages each year. Muslim women, unlike their counterparts in civil marriages, civil unions and customary marriages, do not have their marriages recognised and are unable to approach the Divorce Courts in order to obtain a divorce and ensure just and equitable distribution of the assets of the marriage.
In Women’s Month in 2018 a full bench of the Western Cape High Court handed down a judgment in which the Court found that the State had failed in its Constitutional obligation to recognise Muslim marriages and that because of their failure, Muslim women were being discriminated against and left vulnerable at the time of death and divorce. Even though the President has indicated that there is a legislative process underway he has still appealed the decision.
The proceedings in the SCA commenced yesterday (25 August 2020) morning with the President of the Court, Justice Maya, asking the counsel for the President why the President did not want to recognise Muslim women’s marriages during Women’s Month? For Muslim women across the country this is the key question.
During arguments the President’s counsel conceded for the first time in our twenty-year journey that the government’s position of non-recognition did in fact prejudice Muslim women and that as a result their Constitutional rights to equality, dignity and the rights of their children were being violated. Based on this concession it stands to reason that there is no justifiable reason for the President and government to continue to deny Muslim women equal rights to the recognition of their marriages. There is no justifiable reason for the President and government to continue to deny Muslim women access to housing, land and property that they worked hard to accumulate during the subsistence of their marriages. There is no humane reason why a woman in mourning for the loss of her spouse needs to approach a Court in order to be recognised as a spouse for the purposes of inheritance from a deceased estate.
This concession led to the President of the SCA, Justice Maya, advising that the bench felt that a settlement of the matter was possible. The parties have therefore agreed to seek such resolution over the coming weeks in order for an agreed order to be taken. Along with hundreds of Muslim women, we call on the President to agree to a resolution in this matter. A lack of instructions in the proceedings over the past two days has meant that Muslim women continue to have their rights violated by the very government that has the obligation to ensure rights realisation. We take heart from the fact that there is a shift in the President and the Minister of Justice’s position and a recognition on their part that women are being discriminated against.
The WLC is indebted to its legal team headed by Advocates Nazreen Bawa SC, Michelle O’Sullivan SC and Jennifer Williams for their continued dedication to the realisation of Muslim women’s rights.
About the WLC
The Women’s Legal Centre remains open for business, fulfilling their mandate to serve women and children, regardless of the circumstances. They can be reached on 079 421 8197 or via email at firstname.lastname@example.org