20 April 2018

South Africa: Judgment Reserved in Muslim Marriages Case

The Women's Legal Centre on Friday left tempers flaring in the Western Cape High Court when it pointed out that nine counsel had been appointed by the State to argue the organisation's application for the recognition of Muslim marriages, and all nine had advanced the same argument.

All the advocates representing the State had argued that it was not within the court's jurisdiction to determine the matter.

"It required [all of them] to say that. It's not good for the taxpayer," advocate Nazreeen Bawa, SC, said.

This appeared to result in great upset, with Anwar Albertus, SC, for the minister of home affairs saying he was "flabbergasted".

"It's highly offensive - there was something worthwhile for each of us to say."

Andrea Gabriel, SC, for the president, said she "resented the notion" that counsel was a waste of taxpayers' money.

Violation of constitutional rights

The application for the recognition of Muslim marriages was brought by the Women's Legal Centre, which said it was aimed at providing Muslim women and their children with legal protection upon divorce.

This, the non-profit law centre explained, was being sought due to the "continued failure on the part of government to fulfil the obligations on it by the Constitution to recognise Muslim marriages as valid marriages for all purposes in SA, and to regulate the consequences of such recognition".

It wanted judicial oversight on Muslim divorces as in civil and customary instances, arguing that a range of constitutional rights, including the right to equality, were being violated.

It hoped that the High Court would order the State respondents to pass legislation that "cures the unconstitutional position", or to include Muslim marriages in existing legislation for civil and customary marriages.

The matter is being heard by judges Siraj Desai, Gayaat Salie-Hlophe and Nolwazi Boqwana.

Desai said the matter was complex, as it was not only to regulate future marriages, but also those which exist.

"It's a difficult process, which must reflect the contractual agreement by the Sharia (Islamic law) and modern society," he commented.

All the State respondents concurred that the application was a decision which needed to be made by Parliament, not the court, citing the separation of powers and judicial overreach.

Judgment was reserved.

Source: News24

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