Action sought on marriages bill

NATIONAL Assembly Speaker Baleka Mbete, pictured, has disputed that the body failed to respect, protect, promote and fulfil rights of Muslim women.

“The applicant misconstrues the legislative process that Parliament is enjoined to apply under the constitution. I submit that contrary to the scheme of the constitution and the separation of powers constitutional principle, the trust has sought to fuse the constitutional and legal obligations of the president, the National Executive and the National Assembly where each branch of government has distinct and independent mandates that complement each other,” she said in court papers. “The president does not bring legislation into operation until it has been enacted by Parliament.”

Mbete said the rights accorded in sections 9, 10 and 15 of the constitution were contained in this application.

“They concern the fundamental right to equality before the law, the right to human dignity and the right to freedom of conscience, religion, thought, belief and opinion. When Parliament receives the draft legislation or bill, it will consider the debates, merits and demerits. It will ensure that a public participation process forms part of the consideration of the draft legislation. It will ensure that the National Council of Provinces plays its part in the legislative process as required by the constitution and will conclude the legislative process by referring the legislation enacted by it to the President for his assent and a date.”

THE WOMEN’S Legal Centre Trust is seeking an order that President Jacob Zuma and his national executive should pass the Muslim Marriages Bill – in the pipeline since 2009 – within 12 months.

The other respondents include the minister of Justice and Constitutional Development, the minister of Home Affairs, the Speaker of the National Assembly and the chairperson of the National Council of Provinces.

The trust has sent copies of the court documents, which include a 2009 judgment by a full bench of the country’s highest court, the Constitutional Court, to various parties. It stated that the president and the national executive had a duty to ensure that the law was enacted.

Those it was sent to included the United Ulama Council of South Africa, which represents the Jamiats from the various provinces, the Muslim Judicial Council, the Association of Muslim Lawyers and Accountants, the South African Muslim Women’s Business Forum, the Commission for Gender Equality and the Centre for Child Law.

Hoodah Abrahams-Fayker, the trust’s attorney, said in her affidavit that the passing of the bill was not only long overdue but in the public interest.

She said this was not the first time her organisation had raised the difficulties experienced by married and divorced Muslim women and the violation of their rights in South African courts.

“Over the years the Constitutional Court and high courts heard the plight of Muslim women. Parliament mooted the bill in 2009 and six years down the line we are still waiting for it to be passed,” said Abrahams-Fayker.

“In terms of the law the Marriages Act, the Recognition Act (which became law in 1998 and recognises customary marriages as valid) and the Divorce Act are not applicable to Muslim marriages.

“The omission constitutes an infringement of a number of rights contained in the Bill of Rights.

“It is unfair and not in line with our constitution.”

She said the non-recognition of Muslim marriages and divorces had serious practical consequences.

“The important corollaries of Muslim marriages and divorces, the payment of maintenance for spouses and children, the proprietary rights arising from marriages and the custody of and access to children, are unregulated by South African law.

“Muslim women are badly prejudiced,” said AbrahamsFayker. “Their vulnerability is compounded by the unavailability of legal enforcement mechanisms. Muslim personal law is skewed in favour of Muslim husbands.

“Generally a Muslim marriage is regarded as a marriage out of community of property. Muslim divorcees are often left to fend for themselves and for their children.” THE DIRECTOR-general and secretary of the Cabinet of the Presidency, Reginald Cassius Lubisi, pictured, who issued an affidavit on behalf of President Zuma, said the SA Law Commission had in 1999 begun investigations into the possibility of recognising Muslim marriages in South African law.

“A project committee produced the Islamic Marriages Draft Bill of 2001 and thereafter the Muslim Marriages Draft Bill of 2003. The draft bills were not referred to Parliament due to the doubts about their constitutionality and the difference of opinion received from the Muslim community. In 2010, the Department of Justice and Constitutional Development published a revised version of the 2003 Draft Bill which is known as the Muslim Marriages Bill of 2010. This envisages the incorporation of… aspects of traditional Muslim personal law into the South African legal system,” he explained.” It has not been approved by Parliament and therefore not been submitted to the president.”

Lubisi said in terms of section 84 of the constitution, one of the prerogative powers, functions and responsibilities of the president was the assenting and signing of bills.

He claimed that the Cape High Court did not have the requisite jurisdiction to determine whether or not Zuma had failed to fulfil his obligations in terms of the constitution to assent and sign bills. “This is the domain of the C o n s t i t u t i o n a l Court… There is no constitutional obligation on the president to prepare, initiate, enact and bring into operation an Act of Parliament providing for the recognition of all Muslim marriages as valid marriages in South Africa. In terms of section 14 of the constitution, while everyone has the rights to freedom of conscience, religion, belief and opinion, the section provides that there is nothing to prevent legislation being enacted which would recognise marriages concluded under any tradition or a system of religious, personal or family law… This court must determine whether the president has violated his constitutional obligation to recognise and regulate Muslim marriages in South African law.”