1 August 2003
Muslim women in South Africa may soon enjoy the same rights in their marriages as those enjoyed by women of other religions.
The South African Law Reform Commission has submitted a report containing recommendations and a proposed draft Bill on Islamic marriages to Justice Minister Penuell Maduna.
According to the Commission, adoption of the draft Bill by Parliament would go a long way to creating legal certainty regarding Muslim marriages, would give effect to Muslim values, and would afford better protection to women in those marriages in accordance with both Islamic and South African Constitutional tenets.
The proposed Bill addresses the registration of Islamic marriages, the dissolution of such marriages through the pronouncement of a Talaq (which, in terms of the proposals, would have to be confirmed by a court), custody of and access to minor children, and maintenance. Provision is also made for the regulation of polygynous marriages.
The report recommends that, because the judges of secular courts are by and large non-Muslims, "a judge be appointed from the ranks of existing Muslim judges or from Muslim legal practitioners to preside in legal disputes on an ad hoc basis, and that, on appeal, the views of two accredited Muslim institutions may be solicited for purposes of commenting on questions of law. The courts may also be assisted by assessors who are experts in Islamic law in the adjudication of all disputes relating to Islamic law."
According to the Commission, the report followed a lengthy process of consultation with the Muslim community on a national scale.
Historically, and until a 1999 Supreme Court of Appeal decision, a marriage contracted according to Islamic law was regarded by South African courts as null and void, with the result that the marriage and its consequences were not legally recognised in any form.
Judge Mohomed Navsa of the Supreme Court of Appeal said the draft Bill on Islamic marriages would create certainty with regard to Muslim marriages.
"With the advent of the new Constitution, all forms of culture and religion are given recognition, and it is an obligation on the state to recognise such beliefs and value systems, provided they don't clash with the Constitution", Judge Navsa said.
"What we have in this [report] is a comprehensive system in terms of which recognition is given to Islamic marriages and to Islamic values in dealing with issues such as divorce, custody, maintenance and competing interests between different wives", Navsa said.
Minister Maduna said the government was happy that "at long last we are almost at a point where we shall give full legal recognition to marriages conducted and concluded under Islamic law and tradition".
SouthAfrica.info reporter
