South Africa: Update on process regarding recognition of Muslim marriages

Update on process regarding recognition of Muslim marriages

Situation Brief:

In 2003, the Muslim Marriages Bill (Bill) was submitted by the South African Law Reform Commission (SALRC) to the Minister of Justice and Constitutional Development (Minister of Justice). Since then, to our knowledge, the Minister of Justice has not done anything to move forward with the Bill in the parliamentary process (even though the SALRC undertook four years of extensive consultations from 1999 to 2003 within the Muslim communities and broader civil society when it drafted the Bill and obtained a general consensus within the Muslim communities for the Bill). The Bill can be accessed at http://www.facebook.com/l.php?u=http://www.doj.gov.za%2Fsalrc%2Freports%2Fr_prj59_2003jul.pdf

The Women's Legal Centre (WLC) recently launched a class action in the Constitutional Court (Case No: CCT 13/09). They are asking the Court to compel the government to enact legislation within 18 months of the judgement being delivered to recognise Muslim marriages. One of their arguments is that the status quo is especially prejudicial to Muslim women.

The application is being opposed by the President, the Minister of Justice and Constitutional Development, the Minister of Home Affairs, the Speaker of Parliament and the Chairperson of the National Council of Provinces. The primary basis for their opposition is that:

1) such an order would mean that the Court is interfering with legislative function and breaching the separation of powers rule;
2) there is not sufficient consensus within the Muslim communities yet for legislation to be enacted therefore they need more time to consult with the communities; and
3) Muslim women can access secular courts in the meantime for relief if they need to.

The government's arguments are being supported by an intervening application by a group called Lajnatun Nisaa-Il Muslimaat (Association of Muslim Women of South Africa) representing some Ulama groups. They also oppose the WLC's application. Although this is a group dominated by men, they use the names of some seemingly very small, not to mention previously unheard of, women's groupings to give the impression that these groups represent the views of all Muslim women in the country. They are arguing that legislation to recognise Muslim marriages is not necessary i.e. the status quo should remain as is.

Suggested Way Forward:

If the above group's representations assist government to succeed in their opposition to the WLC's class action then that would mean that government will be able to drag its feet indefinitely on enacting legislation to recognise Muslim marriages and legislation may never get enacted to recognise Muslim marriages.

Women's groups within the Muslim communities have all worked too hard on the Muslim Marriages Bill and it is too important to the lives of Muslim women for us to let that happen.

Therefore, we need to intervene in the action. Muslim women especially need to let the Court know:

1) that their are many Muslim women's groups in the country, other than the Lajnatun Nisaa-Il Muslimaat;
2) that these other groups view the situation very differently;
3) that many Muslim women were part of the 4 year consultation process of the SALRC, made submissions to it and have been eagerly awaiting the introduction of the Muslim Marriages Bill to Parliament;
4) that women have been undergoing serious hardships while awaiting the legislation (caused by the non-recognition of their Muslim marriages);
4) that women believe that the legislation is necessary; and finally
5) that the legislation is urgent for the interests of Muslim women in South Africa.

Essentially, Muslim women need to support the WLC's class action asking the Court to compel the government to enact legislation to recognise Muslim marriages.