Challenge to ruling on Muslim marriage
OBJECTIONS that the State received from Muslim groups, some of whom accused legislators of attempting to interpret the Qur’an, made it difficult to enact laws recognising Muslim marriages.
The State attorney has raised this argument in papers filed at the Supreme Court of Appeal (SCA) on behalf of President Cyril Ramaphosa and Justice Minister Ronald Lamola.
Ramaphosa and Lamola sought to appeal a 2018 judgment that gave Parliament 24 months to enact legislation recognising Muslim marriages.
The Women’s Legal Centre brought this matter before the courts to find legal protection for women in Muslim marriages and their children.
Judge Siraj Desai delivered what was celebrated as a landmark judgment at the Western Cape High Court in August 2018, declaring the State’s failure to pass Muslim marriage laws as unconstitutional.
Ramaphosa and Lamola were headed to the SCA to argue that his judgment was legally flawed.
The State attorney’s affidavit rejects the finding that there was unconstitutionality in not enacting Muslim marriages law.
There was no constitutional obligation in the first place for the State to pass religion-based marriage laws in a secular democracy, argued the attorney.
“First, at present there is no legislation recognising any form of religious marriage, (whether) Hindu, Jewish, Islamic, Buddhist or any religion. Accordingly, Muslim marriages have not been singled out for non-recognition,” said the State attorney in the papers.
“The approach adopted under the current legal framework is to regulate only secular marriages; and to afford religious communities the freedom to conclude religious marriages in accordance with the prescripts of their particular religion.”
There was “no legislative impediment” to Muslim couples being protected under the Marriages Act, said the State attorney.
“Muslim couples are free to solemnise their marriages in terms of the Marriages Act and thus acquire for their relationship the status of a civil marriage.”
Divisions in the Muslim community were what blocked the State from forging ahead with the Muslim Marriage Bill, published in 2010. “The State currently faces serious opposition to the promulgation of legislation recognising Muslim marriages,” said the papers.
“The nature of those objections fundamentally raise the question of whether legislative regulation is, in the first instance, consistent with the principles of Sharia.
Some Islam theologians told the government that “it is not permissible to legislate in respect of Muslim marriages, that the dictates of the Holy Qur’an prevail in such matters”.
“The effect of relief sought is for the State to legislate on key aspects of Sharia and for this court to direct that the State does so.”
The Women’s Legal Centre will battle it out with the State in the appeal application.
“The State’s reliance on the purported ‘serious opposition’ to the Muslim Marriages Bill is both factually and legally incorrect.
“But even if there had indeed been extensive objections to the Muslim Marriages Bill (which is denied), this is not a lawful impediment to the granting of relief to cure an unconstitutionality,” said the centre’s heads of argument.
The position was an about-turn by the State, which previously conceded that absence of laws recognising Muslim marriages violated women’s rights, said the centre.
“It fails to address the multiple concessions made by the State in a number of cases that the failure to legislate violated the constitutional rights of women.
“There were a number of promises that such legislation was imminent.
“It is now 26 years later and still no law protects the constitutional rights of Muslim women and children,” the centre added.
The argument that the State was only concerned with secular marriages “in effect privileges the right to religious freedom above other rights”.
It can also not be argued that it was not necessary to recognise Muslim marriages, the centre submitted.
“The courts have recurrently made it clear that legislation is required to regulate Muslim marriages and their consequences to protect the rights of women and called on Parliament to intervene.”
The SCA will hear the matter next month.