After a ten-year wait, the request to recognize Muslim marriages is on Tuesday being heard in the Western Cape High Court. The Women’s Legal Centre (WLC) is taking the South African Government to court for failing to pass legislation that will give recognition to Muslim marriages. The court is scheduled to hear arguments from the State, the WLC and other stakeholders on whether the failure to recognize Muslim marriages discriminates against Muslim women.
To gain clarity on the matter, VOC spoke to the Director of the WLC, Seehaam Samaai.
Samaai explains that the while it has been ten years since the application was tabled, it has been more than 20 years since reformation occurred within the country, yet no recognition has been given to Muslim marriages.
In light of the fact that a draft bill was completed in 2003 and later published in 2011, she says that there is currently no indication as to when the draft will be passed.
“With the absence of legislation, religious and social marginalization of Muslim women is perpetuated and denies them their rights, which afforded to women in civil and African customary marriages,” she stated.
Samaai asserts that the centre has, therefore, brought the case forward in an attempt to redress the continued discrimination of Muslim women.
Given the fact that government has opposed the application, arguing that the South African Muslim community is not in favour of the legislation, she says that government’s actions have played a key role in the prolonging of the process.
Samaai further notes that the issues run much deeper than the legislative process and instead extends to the patriarchal structures within the Muslim community.
“There is also a patriarchal attitude within our Muslim community that makes it very difficult for our Muslim women to make a living, acquire property and support their children,” she added.
Since legislation has not reinforced the rights of Muslim women, Samaai asserts that the lack of legal protection leaves them with no other option but to turn to “patriarchal structures” within the Muslim community.
“If they can’t do that then they approach the courts, but that is very expensive.”
Samaai affirms that there are currently Islamic bodies that have entered the process as friends of the court and have tabled their views.
She, however, notes that the bodies cannot enforce contracts and agreements between husbands and wives.
Samaai further explains that the courts have recognized certain provisions relating to Muslim marriages, such as maintenance, occupational injuries and support.
“This is a piecemeal approach and it does not deal with the total consequences of not recognizing Muslim marriages,” she continued.
She asserts that the centre will proceed with the case “as far as possible” in a bit to ensure that Muslim women gain access to their constitutional rights.