This after a four-year battle to have it recognised ended in the Western Cape High Court when Judge Seraj Desai ordered that the president and the departments of Justice and Home Affairs enact legislation in line with his ruling.
The Divorce Act, used in civil marriages, has been ordered as interim relief for women married under Muslim rights until legislation is enacted to protect them.
“It is declared that a union, validly concluded as a marriage in terms of Sharia Law and which subsists at the time this order becomes operative may (even after its dissolution in terms of the Divorce Act 79 of 1979 and all the provisions of that Act shall be applicable. Provided that the provisions of section 7(3) shall apply to such a union regardless of when it was concluded,” the judgment stated.
In cases where the husband had more than one spouse the court ordered that the court shall take into consideration all relevant factors including contract or agreements and it must make equitable orders that it deems just.
The departments of Home Affairs and Justice have been ordered to publish the judgment for others to know about it. The judgment also ordered the Justice department to put in place processes and policies regulating the holdings of enquiries by the master courts.
Women’s Legal Centre director, Seeham Samaai said the State could either amend existing laws or enact new laws to protect the rights of women married under Muslim rights.
“For us 24 months is very long, we have been waiting for this for so long. The dissolution of assets in terms of the Divorce Act is a good thing. Talaq, under the Muslim rites, was not enforced and it was always the man’s discretion on how assets would be divided,” she said.
Samaai said there is now a framework to work with.
The Muslim Judicial Council (MJC) also welcomed the court’s decision of granting relief in the form of providing Muslim women and their children, legal protection on the dissolution of marriages.
MJC’s second deputy president, Shaykh Riad Fataar, said: “This is a milestone for Muslims as a minority in South Africa.
“The significance of this judgment is that the president of the country has now been tasked to enforce the legislation. We would like to remind the president that he can make his mark in history by recognising the Muslim community in their marriages - which is long overdue.
The organisation said it would end its full support and resources for the implementation of the bill.“We await the government to fulfil their constitutional obligation and facilitate the process to enact the legislation as soon as possible as per the court order,” he said.@Zoey_Dano