The Recognition of Muslim Marriages in South Africa
The Women’s Legal Centre (WLC) was back in the Supreme Court of Appeal yesterday after being unable to reach agreement with the state on key issues that affect Muslim women.
Cape Town, 1 October – The case was heard by the Judges of the Supreme Court of Appeal (SCA) after it was postponed for settlement negotiations on 26 August 2020, which failed. The State (the President and the Minister of Justice) came to Court yesterday to undertake the development of legislation to recognise Muslim Marriages. Similarly to the manner in which they have been undertaking it since 2001 when the law reform process commenced. They have asked of the Court and Muslim women to trust that they will do so this time around. They refused to make any concession that they had a constitutional obligation to enact the legislation to protect Muslim women from the ongoing discrimination which they face, and that continued delays in doing so would amount to a failure of their constitutional obligations.
In 2018, the Western Cape High Court found that the State has a Constitutional obligation to recognise Muslim marriages and that they had failed in this duty. This finding is the basis for the States appeal of that judgment.
Further counsel for the President insisted that her client would not agree to an interim regime (pending the legislative development process, which must be done within 24-months) that was retrospective. This means that the thousands of women that have been waiting for relief through this litigation would be left without any legal recourse in the event that their marriages no longer subsist at the time that the interim relief comes into effect. They would be left without remedy and recourse because they were unable to litigate against the state and their spouses in order to have their rights recognised. This was the response to the WLC’s submission that Muslim women should be allowed to make use of the Divorce Act as an interim measure to deal with the dissolution of a marriage before a Court in order to ensure that they are able to protect their interests and rights flowing from their marriage in the same manner that other women in our country are able to do. The request was that the interim relief be extended to women who may have had their marriages religiously dissolved, but who as a result of the non-recognition were unable to access rights in housing and property as religious pronouncements have no legal or binding effect.
The issue of interim relief is why the WLC had appealed the Western Cape High Court’s order because it only made interim protection available to women after a two year period and in the event that the State failed to legislate. That Court had also required that marriages needed to remain in place (and could not be terminated) prior to that two year period – effectively leaving thousands of women without any protection.
The WLC submitted that it was important for the State to recognise that they have a Constitutional obligation to ensure that Muslim women do not continue to be discriminated against. Further that the State has failed Muslim women by not enacting legislation, which is something that Courts over the years have found and as recent as 2014 Judge Owen Rodgers had asked how fair it was for the state to ask Muslim women to wait when all they (the State) have shown was lethargy and inaction. Muslim women are rights holders in terms of our Constitution. They are entitled to have their rights respected, protected and promoted through the enactment of legislation to regulate Muslim marriages. They should not be treated as recipients of the State’s goodwill, to do so infringes on their right to dignity and equality.
The WLC submitted to the Court that the State has the obligation to ensure that Muslim women enjoy the same rights and protection as women married under the other marriage regimes in our country such as the Marriage’s Act and the Recognition of Customary Marriages Act. There is no justifiable reason why the state cannot concede that Muslim women are entitled to this same or similar protection in law as other women in our country. The state does not agree that there is an obligation to legislate in the same or similar manner as other marriages, but provides no insight as to why Muslim women should be treated any different to other women in our country.
The non-recognition of Muslim marriages has far reaching implications for women – from their children being viewed as being born out of wedlock to them being unable to access the services of the Family Advocate because their marriages are not legally recognised. We also know that for years Muslim women have struggled to have their rights in inheritance recognised by the Master’s office and the best that the state offered during yesterday’s hearing was an undertaking by the Minister of Justice that he would look into the difficulties being experienced. The difficulties have been well documented over the past twenty years and form part of multiple court cases and judgments that have been handed down. The undertaking being given is a far cry from the relief that the WLC is seeking which would require the Minister to put in place tangible measures requiring the Master to conduct the necessary enquiry to recognise Muslim women as spouses and to allow for them to access their spouses deceased estates. COVID-19 and the over 16 000 deaths that have been recorded expose the need for the state to ensure proper legal protection for surviving spouses.
The SCA now has the task of weighing up the evidence before it. Judgment in the matter is reserved and Muslim women in South Africa continue to wait.
About the WLC
The Women’s Legal Centre remains open for business, fulfilling their mandate to serve women. They can be reached on 079 421 8197 or via email at info@wlce.co.za