Court shouldn't decide on recognition of Muslim marriages – home affairs minister

2018-04-18 17:30
High Court. (Duncan Alfreds, News24)

High Court. (Duncan Alfreds, News24)

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The Muslim Judicial Council's backing of an application by the Women's Legal Centre for the recognition of Muslim marriages infers that it realises there is an issue, Western Cape High Court Judge Siraj Desai said on Wednesday.

"They support [the applicant] in this instance, probably recognising there is a problem," he said.

He pointed out that the majority of Muslims do not register their marriages, saying a greater degree of awareness may result in different consequences.

READ: Ruling on Muslim marriages means usurping Parliament, court hears

Anwar Albertus, SC, for the minister of home affairs, pointed out that this, however, remained a personal choice.

The application for the recognition of Muslim marriages was brought by the Women's Legal Centre, aiming to provide Muslim women and their children with legal protection upon divorce.

This, the non-profit law centre explained, was being sought due to the "continued failure on the part of government to fulfil the obligations on it by the Constitution to recognise Muslim marriages as valid marriages for all purposes in SA, and to regulate the consequences of such recognition".

'Court is not the place for that'

It wanted judicial oversight on Muslim divorces as in civil and customary instances, arguing that a range of constitutional rights, including the right to equality, were being violated.

It hoped that the High Court would order the State respondents to pass legislation that "cures the unconstitutional position", or to include Muslim marriages in existing legislation for civil and customary marriages.

Albertus said the Women's Legal Centre was "animated by good intentions", but Desai countered they were animated by the lived experience of their clients.

When asked by Judge Gayaat Salie-Hlophe if he was arguing that Muslim marriages should never be legislated, Albertus said this would be a function of legislature as "court is not the place for that".

He asked for the dismissal of the application.

Andrea Gabriel, SC, for the president, said the Constitution recognises the complexities of issues such as the one before court, allowing the legislature if it sees it necessary to codify, incorporate and treat religious systems as an enforceable source of law.

'Complex' issue

"Our supreme law is different. How we bring religious law into secular law hasn't happened."

She said the executive was attempting an "omnibus approach" to deal with marriages in all religious systems "in one go, at one time".

"There isn't inaction – this is complex," Gabriel insisted.

"Any judgment of this court that has the effect of recognising Sharia law as enforceable... by tomorrow there will be an application [by other religions]."

She pointed out that no system of religious law was enforceable in South African law.

Gabriel, too, asked for the dismissal of the application, although the president "doesn't contest it's a serious issue".

On Tuesday, advocates representing the minister of justice and religious organisation Jamiatul Ulama KwaZulu-Natal concurred that the matter was a decision which needed to be made by Parliament, not the court, citing the separation of powers and judicial overreach.

The matter resumes on Thursday.

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