Should the Western Cape High Court rule on the recognition of Muslim marriages, it would be usurping the function of Parliament, the advocate representing the minister of justice has argued.
Advocate Nelly Cassim, SC, on Tuesday contended that any declarator to this effect would result in the courts appropriating the powers of legislation.
"There is no constitutional obligation on government to implement legislation giving recognition to Muslim marriages," she insisted.
The right to freedom of religion meant Muslims followed the dictates of the Quran by choice.
"It's not that you can't register your marriage. You choose not to."
She said women and girl children were protected from discrimination by the Promotion of Equality and Prevention of Unfair Discrimination Amendment Act.
No judicial oversight on Muslim marriages
The application, brought by the Women's Legal Centre, aims to seek 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", the non-profit law centre explained.
Ahead of the case, the Women's Legal Centre argued that there was no judicial oversight with Muslim divorces as there was in civil and customary instances.
It said that a range of constitutional rights, including the right to equality, were therefore 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.
The matter is being heard by judges Siraj Desai, Gayaat Salie-Hlophe and Nolwazi Boqwana.
Desai questioned why Muslim marriages were considered valid for tax and in terms of the Insolvency Act. He asked why blanket recognition should not be given if there were ad hoc instances where it was accepted.
'Bastardisation of children'
But Cassim maintained that the decision on whether Muslim marriages should be recognised was not one for the court to make.
"The implications of a declarator will have ramifications. It would mean a consultative process in Parliament was not followed."
Advocate Emraan Vawda, for religious organisation Jamiatul Ulama KwaZulu-Natal, concurred with Cassim's argument and conceded that there was "no perfect solution".
"But it's a policy decision for legislature to decide, not for the courts," he said.
Desai questioned why in a state, the law of the state shouldn't apply. He pointed out that 24 years into democracy, legislation had still not dealt with issues around Muslim marriage.
"Muslim women still labour under marriages not being recognised and there is no solution in sight," he said.
This resulted in serious matters of concern, including the "bastardisation of children".
Desai said that Islam was not the problem, but its application in the 21st century.
Understanding of Islamic law
Anwar Albertus, SC, for the minister of home affairs, echoed Cassim's argument of the separation of powers and judicial overreach.
He insisted that what the applicants sought was a "broad brush, [a] sweeping approach with no regard and sensitivity for what is in its way".
Albertus said the result of such an order would mean the court decides whether a marriage comes to an end, and the judge may not understand Islamic law.
He questioned what would happen to Muslim men with second and third wives and asked about the proprietary consequences.
Attempts have been made by government to pass legislation relating to Muslim marriages, Albertus pointed out, but this was met with resistance.
Only "an insensitive government" would nevertheless push ahead.
The South African Law Reform Commission was exploring ways to resolve this, Albertus said.
The matter continues on Wednesday.