Johannesburg - It is now in the hands of the apex court justices to decide whether and how marriages entered into under Sharia Law can be regulated through the country’s secular laws.
On Thursday, the Constitutional Court heard arguments over the dragging litigation about whether the State was constitutionally obligated to enact legislation that recognised and regulated Muslim marriages.
The Women’s Legal Centre Trust (WLC), which describes itself as an African Feminist Legal Centre, pursued that matter against President Cyril Ramaphosa and Justice Minister Ronald Lamola.
In its corner were the SA Human Rights Commission (SAHRC), Commission for Gender Equality and the Muslim Assembly.
While the WLC enjoyed victory at the Supreme Court of Appeal (SCA) last year, it sought further relief from the apex court in the form of recognition of Muslim marriages retrospectively to 1994.
The case of the WLC and its supporters in court was that the non-recognition of Muslim marriages left women and children vulnerable.
This was to an extent that they were left with nothing and no right to claim after the annulment of their marriages.
“The retrospective effect of the order will go a long way in rectifying the violation of these rights which Muslim women have endured for decades and which the children are now enduring and which despite the advent of the Constitution still continues,” Shafia Mahomed, counsel for the Muslim Assembly told the court.
“We just want the recognition and regulation of Muslim marriages. It’s up to this court to make that decision,” Mahomed added.
“The difficulties that have been experienced is that it is not regulated, not at all. Even though you have the Muslim marriages contract, etc, those don’t help.”
Mahomed said there were organisations involved in Muslim marriage divorces, but “they are powerless to do anything about matrimonial benefits”.
“So, the legislation and the regulation of these marriages will be of great assistance,” she told the Concourt.
“It will give the court the power to give these women and the children what they deserve as a result of divorces.”
Richard Moultrie SC, for the SAHRC, said the option that Muslim spouses had to opt to register their marriage via secular law did not address the problem that pushed the litigants to court.
“This question about opt-in, optout ... is illusory. It just maintains the status quo. It creates a de facto Constitution-free zone,” he said.
“The problem (that) comes is that it excludes the very people that need the protection of the secular law at the very moment when they need it, that is, when things go wrong.
“The law needs to come to the aid of that person.”
Andrea Gabriel, SC for Ramaphosa and Lamola, said the State favoured interfering as little as possible with Sharia Law.
“… How does one with a secular law reach into the holy book and make it subject to normative constitutional values?” she asked.
“Whether we like it or not, our constitution recognises the right to follow your religion, to make your personal choices, to marry who you want to.
“If tomorrow the state passed the law that says there would be no marriages other than that recognised in terms of the Marriages Act, there would be hell to pay for the violation of Section 15 of the Bill of Rights.”
Judgment was reserved.
The Star