Court win for Mus­lim women

High court judg­ment fi­nally grants the same nup­tial rights as those en­joyed by other South African women in SA

Weekend Argus (Saturday Edition) - - FRONT PAGE - NOR­MAN CLOETE nor­man.cloete@inl.co.za

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 yes­ter­day 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.

| Pic­ture: AR­MAND HOUGH / African News Agency (ANA)

Tourists and lo­cal na­ture en­thu­si­asts flocked to the West Coast Na­tional Park as this year’s an­nual flower sea­son be­gan. The of­fi­cial flower sea­son opened on Au­gust 1 and closes on Septem­ber 30.

Di­rec­tor for the Women’s Le­gal Cen­tre, See­haam Sa­maai said Is­lam had al­ways been clear about the rights of women.

| Pic­ture: AR­MAND HOUGH / African News Agency (ANA)

Tourists and lo­cal na­ture en­thu­si­asts flocked to the West Coast Na­tional Park as this year’s an­nual flower sea­son be­gan. The of­fi­cial flower sea­son opened on Au­gust 1 and closes on Septem­ber 30.

Di­rec­tor for the Women’s Le­gal Cen­tre, See­haam Sa­maai said Is­lam had al­ways been very clear about the rights of women, but this has never been en­forced by a pa­tri­ar­chal so­ci­ety.

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