While the debate around the Muslim Marriages Bill remains a divisive issue within the South African Muslim community, the majority of ulema are in support of the court bid to compel national government to make this a reality. The fight for the recognition of Muslim marriages is one rooted in South Africa’s apartheid history and even today 23 years after democracy, the battle continues.
Religious marriages, such as Muslim marriages, have no legislative framework governing them, so they are not legally recognized as marriages. For Muslim spouses, the consequences are problematic – there are no legislative protections for persons married according to religious rites, which includes Muslim rites.
Some of the issues that continue to impact upon Muslim women include:
-The right to be included as a spouse/s in terms of the Wills Act upon repudiation of benefits by the beneficiary
-Whether spouses in a Muslim marriage are entitled to a decree of divorce, transfer of assets, or to seek the forfeiture of the patrimonial benefits of the marriage in terms of the Divorce Act
-The challenges of enforcing maintenance orders during and after divorce
-Whether a wife and her children can claim the marital home registered in her husband’s name upon divorce
-Access to pension benefits of her husband on the dissolution of the marriage
The long drawn out process prompted the Women’s Legal Centre (WLC) and others to litigate on these matters to fight for the rights of Muslim spouses in terms of pensions, inheritance and maintenance.
Over the past two years, groups such as WLC have been publically advocating for government to legalise Muslim marriages as Muslim women are being treated unfairly upon the dissolution of marriage. A process was started in 1996 by government to recognise Muslim marriages but ground to a halt in 2012 after the bill was published for comment.
In 2014, WLC launched an application in the Western Cape high court, in the public interest, seeking relief aimed at providing women in Muslim marriages, and the children born of such marriages, with legal protections, primarily upon the dissolution of such marriages.
The case was finally heard for two weeks in September this year at the Western Cape high court with the United Ulema Council of South Africa (UUCSA) submitted as a friend of the court. President Jacob Zuma and several government departments are the respondents in the case.
“The non-recognition of Muslim marriages has far-reaching implications and consequences for women in Muslim marriages, as they do not have the protections offered to women in civil marriages. Religious and cultural tribunals or religious decision making bodies that aim to assist women lack the enforcement powers to ensure rulings are implemented,” says WLC director Seeham Samaai.
It is for precisely this reason that the Muslim Judicial Council (MJC), under UUCSA, is supporting the WLC’s case. In its submissions at the high court, it has clearly stated the need for enforceability of laws pertaining to Muslim marriages under the South African law.
“The problem arises that when these disputes are brought to the MJC, certain parties who are not impressed and can take their jacket and walk away from the process and there is nothing anyone can do. There is no executive authority or legal enforcement,” says Shaykh Igsaan Taliep, the president of UUCSA and an MJC executive committee member.
“In terms of Islamic tradition, the second khalif Umar (ra) appointed one of his judges, Shurayh al Qadhi. In his appointment letter, he said it does not matter how much the Shariah secures the maslakha of society when that is not secured or when there is no access to justice. That is the essence of laws and rights…that people can benefit from them,” says Shaykjh Taliep, emphasizing that Shurayh al Qadhi was renowned for his impeccable sense of justice and for holding all people equal before the law.
The question being posed by UUCSA is that South Africans, including Muslims, have the right to marry under the Marriage Act, the queer community can solemnise marriage in terms of the Civil Union Act and African couples can marry under the Recognition of Customary Marriages Act.
“This legislation was contested but pieces of law were enacted. So our question is: why is government not enacting legislation that recognises Muslim marriages. Why are we being side-lined or discriminated against? We are stating that if government has not done its work, the court must hand down an order stating that government has not achieved what is required,” says Shaykh Muneer Abduroaf, an attorney and lecturer at UWC’s Law Faculty.
Asked why Muslim marriages could not be enforced under the Recognition of Customary Marriages Act, Shaykh Abduraouf explained that there would be different consequences for divorce, maintenance, and inheritance. There are provisions in this legislation that has been custom made for the recognition of customary marriages. The argument by UUCSA is that there should be legislation enacted that recognises Islamic law in terms of the Muslim marriage act.
“If there is a divorce, a fight for custody or a maintenance claim, it will be dealt with in accepted Islamic law,” he explained.
Succession law matters
An interesting case which again points to the urgency of this Islamic framework is that of two elderly widows who succeeded in changing the interpretation of the way South African laws view Muslim polygamous marriages. The two wives took the matter to the High Court in Cape Town after the Registrar of Deeds refused to register a portion of their deceased husband’s estate to his second wife.
The judge ordered that that the second wife be declared a “surviving spouse”. In his judgment, he states that in terms of the Constitution a section of the Wills Act should be interpreted that a “surviving spouse” includes every husband and wife of a monogamous and polygynous Muslim marriage solemnised under the religion of Islam.
“Had there been legislation that governs the Islamic law of succession and administration of deceased estates, there would no need to spend large sums of money and hours in court to enforce rights. When the judgements were handed down, it was again in terms of existing SA law,” comments Shaykh Abduraouf.
The Davids VS Campbell case was another significant case. Mrs Daniels married her husband by Muslim rites in 1977. The marriage, which was at all times monogamous, was not solemnised by a marriage officer appointed in terms of the marriage Act 25 of 1961. Mr Daniels passed away in 1994 without a will. The Master held that she could not inherit from his estate because she was not recognized as a surviving spouse.
The High Court upheld the Master’s decision but also held that certain provisions of the Maintenance Act and the Intestate Succession Act were unconstitutional for their failure to recognise as “spouses” persons married according to Muslim rites. An application was made to the Constitutional Court for confirmation of the order and therefore to allow partners in Muslim marriages to benefit from their protections, which include the provision of relief to widows to ensure that they receive at least a child’s share of their husbands’ estates.
In terms of the Maintenance of Surviving Spouses Act, certain benefits are conferred on “spouses,” a term which did not include spouses in a de facto monogamous Muslim marriage. The Constitutional Court held that the word “spouse,” in its ordinary meaning, should include parties to a Muslim marriage.
However, the alim criticised the fact that the relief was not based on the laws of Surah Nisa, which details the laws of inheritance.
“We have violated the Shariah by taking of the rights of others. The Interstate Succession Act provides if there is a surviving spouse and the estate is worth less than R250 000, there is nothing for the children. The Quran is very specific that there is punishment if we don’t adhere to this. That court judgement violated the Shariah.”
The South African government has persistently argued that the South African Muslim community is to blame for the delays in enacting the bill, as there is no real consensus on the matter. According to Shaykh Abduarouf, a similar controversy surrounded the Recognition of Customary Marriages Act and the Civil Union Act, yet government passed the legislation.
The Constitutional Court ruled on the matter and ordered the South African government to enact the legislation or citizens would by default be entitled to marry under the Marriage Act.
“There was no consensus in many of the debates around these bills, but yet they were passed,” says Shaykh Abduraouf.
Those opposing the WLC’s application include the Society for the Protection of our Constitution, Lajnatun Nisaa-Il Muslimaat (Association of Muslim Women of SA), and the United Ulama Council of SA, a PE based ulema grouping falsely using UUCSAs name, despite a Pretoria high court ruling stating that it does not have claims to the trademark.
Lawyers acting on behalf of these organisations argued that the WLC’s bid is “unconstitutional” as it is undermine Islam and Shariah law. Their argument is centred around the Qur’an as the divine law, and their belief is that the Shariah will be subject to South Africa’s Constitutional laws.
According to Shaykh Abduraouf, everything that Muslims are subjected to is subject to the Constitution.
He refers to a recent case where a Sharia compliant was drafted by the MJC and when the will was interpreted, some of the beneficiaries renounced their rights. It was interpreted in terms of South African law, and the Wills Act. It was challenged on Constitutional grounds, in that one of the surviving spouses was married in terms of the Marriage Act, but the widow was married in terms of Islamic Law. The court therefore challenged the MJC interpretation.
“If the bill becomes an act, it will better the current position [for Muslims] as it will be enacted in Islamic law, not Islamic law that has come into effect as a result of changing existing South African law. All those cases that have gone to court where the decision handed down by the court was in terms of South African law principles and not Islamic law. In terms of the MMB, the orders will be much more different,” he explains.
UUCSA is representative of the vast majority of the ulema formations in South Africa. Of all the informal judiciary bodies across the country, the Jamiatul Ulama KZN has taken an opposing view alongside the Majlis under the so-called ‘fake UUCSA’.
In the absence of punitive measures, informal judiciaries have no legal authority. According to Shaykh Taliep, the accumulation of case law is “happening in an erratic way”.
“Those judgments handed down will serve as precedent and will all be bound by them. Those judgments have been concluded based on pieces of South African legislation. Whilst those women in those circumstances have accessed some form of redress, the rewards were largely in contravention of the Shariah. So this is happening all the time.”
The scholar believes the South African government’s piecemeal approach is not working.
“We should have a viable framework of legislation that will ensure that the bulk of our laws will be covered in accordance with the Shariah. If there would be a constitutional challenge to something, that is plausible, but the problem is that we already sitting in a scenario where the laws of the Shariah are already being subjected to the laws of the country,” he argues.
“We are saying that had the judges had the benefit of a legal framework such as the Muslim Marriages bill, they would have a framework within which to hand down their judgements as opposed to having to solely rely on pieces of SA legislation.”
Judgement is expected to be handed down in December. VOC
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