The application for the recognition of Muslim marriages is not for a symbolic declarator, the Women's Legal Centre argued in the Western Cape High Court on Thursday.
"There has to be meat – a right and a remedy," Nazreen Bawa, SC, for the centre, insisted.
The non-profit law centre seeks relief in the form of providing Muslim women and their children with legal protections upon the dissolution of marriages.
This is 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", it said.
But lawyers representing the minister of justice, the minister of home affairs and religious organisation Jamiatul Ulama KwaZulu-Natal concurred that the matter was a decision that needed to be made by Parliament, not the court, citing the separation of powers and judicial overreach.
Bawa proposed, as an alternative, that pending the promulgation of legislation for the recognition of Muslim marriages as valid as well as the consequences of this, all marriages solemnised in accordance with Islamic law are declared lawful.
Process not replacement of talaq
This would mean that a party to a Muslim marriage may approach the Department of Home Affairs for the recognition of their marriage, and that the home affairs minister put in place necessary processes for the registration of the marriage within six months.
Bawa said this would mean a part to a Muslim marriage may approach a High Court for a decree in relation to the dissolution of the marriage and the proprietary consequences.
"A court granting a decree of dissolution... may make any order as it deems just with regard to the division of the assets of the parties whether acquired prior to or during the subsistence of such marriage, taking into consideration all relevant factors including any contract or agreement concluded between the parties; and may order that any person, who in the court's opinion has a sufficient interest in the mater, be joined in the proceedings."
The process would not, however, replace the talaq – which in Islamic terms is a divorce prompted by the man as a formal repudiation of his wife.
The Divorce Act should apply to the dissolution of a Muslim marriage, she argued, and granting the interim relief meant Parliament would not be usurped.
Earlier, Bogoshi Bokaba, SC, acting for Parliament, said his client was obliged to ensure legislation is processed diligently and without delay.
"The only obligation on Parliament is that when the executive introduces legislation, it processes it," he said.
"The outcome depends on how members of Parliament vote on legislation."
Bokaba said Parliament could not be ordered to pass the recognition of Muslim marriages by virtue of separation of powers.
Bawa countered that while the responsibility indeed lies with the executive to initiate legislation, Parliament in its legislative powers had the function of oversight and was the enacting agent for legislation.
"It is compelled after more than 20 years [since government started the process to recognise Muslim marriages] to hold the president to account for his constitutional obligations," she said.
Advocate Andrea Gabriel, SC, for the president, said the highest courts had recognised that women found themselves in vulnerable situations was a real social problem, but that this must be addressed by legislature and through education.
The matter is being heard by judges Siraj Desai, Gayaat Salie-Hlophe and Nolwazi Boqwana.
Court relief would 'disturb nature of marriage'
The case of Ruwayda Esau and her husband Mogamat, which was consolidated into the application, was also argued as Ruwayda wants access to Mogamat's Telkom pension fund.
The two were married in accordance with Muslim rites.
Advocate Johan de Waal argued the Esau marriage was a "typical marriage" and that Ruwayda contributed to bond payments, groceries and raising the couple's children.
He argued that his client was entitled to her husband's pension.
But Mogamat's lawyer, Abubakr Lawrence, said the court should not grant the relief sought as it would be getting involved in religious doctrine and would "disturb the nature of their marriage".
He also pointed out that what was considered just and equitable by the court was different to that considered so by the Quran.
Earlier this week, the Commission for the Promotion and Protection of the Rights of Cultural Religious and Linguistic Communities argued that not only Muslim marriages but all religious marriages should be recognised under the law.
The commission said its position was that the Recognition of Customary Marriages Act should be amended to recognise all marriages, including Muslim marriages.