South Africa has once again been confronted with the historical battle for the legal recognition of Muslim marriages. The Women’s Legal Centre (WLC) has launched an application in the Western Cape High Court to take the President of South Africa and executive respondents to court for the lack of a legislative framework governing Muslim marriages in South Africa. According to WLC, their basis for this action lies in the fact that non-recognition has far-reaching implications and consequences for women in Muslim marriages, as they do not have the protection offered to women in civil marriages. The application is in the name of public interest and seeks relief for women in Muslim marriages, and the children born of such marriages as well as legal protection upon the dissolution of the marriage.
According to Business Tech, the Muslim population in South Africa is over one million. The Muslim religion has the highest projected growth among South African religions. Taking into account the growing community, minimal legal protection exists.
Associate Professor Anne Louw, who is a Family Law lecturer at the University of Pretoria, provided insight on the legal framework on marriages in South Africa. “South Africa formally recognises three types of unions, i.e. civil marriages in terms of the Marriage Act 25 of 1961 (heterosexual monogamous marriages), civil unions in terms of the Civil Union Act 17 of 2006 (hetero-and same-sex monogamous civil unions) and polygynous customary marriages in terms of the Recognition of Customary Marriages Act 120 of 1998”. She went on further to highlight that “Religious marriages, such as Muslim and Hindu marriages, are not yet formally recognised in South Africa”.
There has been a lot of speculation with regard to the reason for the non-recognition of Muslim marriages. The WLC addresses the issue of Muslim parties get legally married in terms of the Marriage Act. However, the Marriage Officer cannot register a polygynous marriage, as polygynous marriages are not recognised by the Marriage Act, and thus cannot be registered. This should not provide a reason for non-recognition by the legislature as the Recognition of Customary Marriages Act already formally recognises polygamy. In addressing the failure of legal recognition, Associate Professor Louw says “From a sex and gender perspective, it is nevertheless arguable that Muslim marriages cannot be recognised because some features of these marriages, such as their potential polygynous nature and manner of dissolution, violates Muslim women’s constitutional right to sex and gender equality (s 9) and dignity (s 10). These arguments, however, become less convincing when consideration is given to the number of cases in which the courts have already recognised de facto polygynous Muslim and Hindu marriages (albeit for limited purposes).”.
According to the Mail and Guardian, the battle for legal recognition dates back to 2003 when a draft Muslim Marriages bill was submitted to the justice ministry which proposed that matters concerning Muslim marriages and divorces be settled in court, with the assistance of a Muslim judge and assessors who are versed in Islamic law. Despite its progressive nature, the bill was met with a lack of consensus in the Muslim community as the need for the bill and its structure were questioned. In 2009, an unsuccessful application was brought to the Constitutional Court by the WLC in which it was argued that Parliament and the president are required by the Constitution to “prepare, initiate and enact” legislation to recognise Muslim marriage. According to the Mail and Guardian, during proceedings in the Constitutional Court, former Judge Kate O’Regan questioned the need for a special Act to govern Muslim marriages. “The question is whether it is acceptable for the state to take over the management of a particular religion,” she said. Former Judge Albie Sachs commented that “it’s asking the courts to intrude, in a very profound way, on a very sensitive issue”.
Associate Professor Louw remarked that the event which followed this application was The Muslim Marriages Bill of 2010 which would formally elevate Muslim marriages to the status of civil marriages. The bill was published for comment in 2011 without ever being submitted to parliament for approval.
Nabeel Ismail, an executive committee member of the Muslim Student’s association at UP, said that “From the onset of the apartheid era, Muslim marriages in South Africa were never recognized as the state had full discretionary power. Ever since we have moved to an era of democratic values and a constitutional era, there is a need for transformation and this includes the recognition of Muslim marriages[…] Muslims also suffered in the past and throughout all the suffering we see that nothing is being done for the recognition of Muslim marriages in South Africa.” When asked if the rights of Muslim people are adequately protected in a democratic society, Ismail answered in the negative. “More so Muslim women are more towards a disadvantage [sic]. Basically if a man dies intestate [without a will] women cannot inherit intestate unless they are married into civil law. If they are married into a polygamous marriage, only the woman who’s in a civil marriage will be given the intestate rights in marriage and the other wives towards a polygamous marriage have no rights because polygamy is not recognized in the marriages act of South Africa”. This situation has adverse consequences for polygynous wives and their children. Ismail believes that to promote the right to freedom of religion and the right to culture, there needs to be a purposive and generous interpretation of the law.
It still remains a mystery as to why Muslim marriages have not yet been legally recognised in South Africa yet we are constantly reminded that the non-recognition has been called a “constitutional anachronism” in the case of Daniels v Campbell NO and Others 2004. While the debate rages on the sensitive issue of legal recognition of Muslim marriages, Muslim women and their children still remain unprotected.