Cape Town - The Constitutional Court has reserved judgment in an application by the Women's Legal Centre (WLC) on the recognition of Muslim marriages under South African law.
The WLC wants the Constitutional Court to confirm an order of the Supreme Court of Appeal (SCA) made in December last year.
The SCA ruling said it recognised the injustice and stigma suffered by Muslim women in South Africa because of the non-recognition of marriages concluded in terms of Sharia law, and gave the State 24 months to remedy the defects in the law.
On Thursday the lawyer representing the WLC, Nazreen Bawa, told the court that their case was about providing effective relief for Muslim women.
“Our case is not about denying anyone their faith, we are not seeking an amendment of the Qur’an, but that we have only sought to place before court the ongoing discrimination and vulnerability that Muslim women find themselves in. The WLC cannot provide each and every woman with legal representation. This desperate need requires State intervention and remedy.”
In the case, which was billed in court papers as WLC vs The President of South Africa and Minister of Justice, the State argued that it was not opposing the application, but said relief must be limited to Muslim marriages terminated either by death or divorce before the date of the order.
Andrea Gabriel, appearing for the State, said: “The State parties do not believe that there is an automatic right or obligation on the State to recognise marriages that are concluded in South Africa.”
She also argued that the State is concerned that there will be chaos if interim relief is extended to marriages that have already been dissolved either through death or divorce.
Speaking after judgment was reserved, WLC director Seehaam Samaai said: “For the past 25 year the WLC has been litigating for the recognition of Muslim marriages and to ensure that there’s broader recognition as well as regulation for Muslim women in Muslim marriages after a divorce or dissolution of a marriage.
“We positively await a judgment. We hope the Constitutional Court will uphold the international, regional and constitutional obligations to ensure that we recognise Muslim marriages and to ensure broader recognition of the marriages.”
The Muslim Judicial Council’s (MJC) second deputy president, Sheikh Riyaad Fataar, said: “We are looking forward to the outcome by the Concourt, 27 years after democracy, so that the Muslim marriages can be recognised in our country.
“As the MJC, we have been made amicus curiae (friend of the court) so that we can also have a role to play to protect Muslim Personal Law.”
Al Jama-ah party leader Ganief Hendricks said the party commends the WLC for its position that it is only Parliament that can deal with issues of their constituency of Muslim women and women in Muslim marriages who visit their offices for relief.
Thousands of marital disputes of Muslim women have been satisfactorily settled by Muslim courts in the country.
“We understand the frustration that Muslim women are going through over many years as the government does not recognise marriages by Nikah in accordance with Shariah Law, but as Muslims we cannot go against Islamic Law and ultimately, we must ensure that Muslim women are not only protected by the Western law, but firstly by Islamic law. “