Cape Town - The Western Cape High Court judgment ordering Muslim marriages to be legally recognised speaks directly to “a very patriarchal Muslim society”, which has always benefited men and left women with nothing after divorce.
This was the view of the director of the Women’s Legal Centre and attorney for the Women’s Legal Centre Trust, Seehaam Samaai, who described the judgment as a victory for Muslim women.
Judge Seraj Desai on Friday ordered that the president and the departments of Justice and Home Affairs enact legislation in line with the ruling within 24 months.
The matter was brought to court by the Women’s Legal Centre Trust in 2014 to afford Muslim women the same legal rights as those enjoyed by other married women across South Africa.
Samaai said: “This has been a long journey. We have tried the piecemeal approach, but this is not sustainable. In 2012, the Muslim Marriages Bill was removed from Parliament’s review list because the Muslim community was not in agreement.”
She said the centre had for the past 20 years been fighting to change certain parts of the constitution which it felt were discriminatory towards Muslim women in respect of maintenance, wills and intestation.
Samaai said that the state had failed to “protect, promote and respect” the rights of Muslim women whether they be in monogamous or polygamous marriages.
“Sharia law has been very clear around the maintenance of women, but the problem is that organisations like the Muslim Judicial Council cannot enforce it.
“Women would have to come to court to have their rights enforced. Islam does provide for women’s rights, but enforcement is the problem.
“The men always knew what was right. How do you leave someone desolate when you know that person was an equal contributor to that marriage? It’s the same as how black women were excluded from owning land. Imagine, you are a black, Muslim woman, then it’s a triple-whammy,” she added.
Weekend Argus spoke to another activist, Ayesha Royker, whose marriage ended in divorce in 2015 and she found herself without recourse.
Royker, who has three sons, is a paralegal and conveyancing secretary, studying towards an LLB degree and said when her marriage ended she had no claim and was forced to approach the courts for remedy. The matter was still before the court, she said.
“There are so many women in disadvantaged positions and this ruling paves the way for men and women so that both parties can know what to expect when they enter a marriage,” she said.
Royker added that there was no compulsion for Muslim couples to register their marriages and this was often where couples made a mistake.
“Women are afforded rights under Islam, but the challenge is that there is no body that enforces these rights. As a result, Muslim women have no automatic right to spousal maintenance,” said Royker.
“I am very pleased with Judge Desai’s ruling and I have a feeling that many women will now come forward to claim their rights.”
The Muslim Judicial Council’s second deputy president, Shaykh Riaad Fataar, said he welcomed Judge Desai’s decision in granting relief in the form of providing Muslim women and their children legal protections upon the dissolution of marriages.
“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,” he said.
Home Affairs said it would respond as soon as it had studied the judgment.The Justice Department had not replied to a request for comment at the time of going to print.