SCA crafts order recognising Muslim marriages

The Supreme Court of Appeal (SCA) has upheld a 2018 ruling of the Western Cape High Court, which declared non-recognition of Muslim marriages unconstitutional. The court described the non-recognition of these marriages as a ‘travesty and a violation of the constitutional rights of women and children in particular’, says a TimesLIVE report. The High Court found that the President and the Cabinet had failed to fulfil their constitutional obligations. Litigants complained that their marriages were not recognised under the Customary Marriages Act. The erstwhile husband of one of the litigants was able to dissolve their marriage without her consent. She was hounded out of her matrimonial home after the spouse died and ‘forced to live in shelters’. The minor children were removed from her care. Her plight was compounded when the Master of the High Court removed her as the executor of her husband’s estate because the Muslim Judicial Council did not view her as the deceased’s wife. The President and the Justice Minister took the High Court ruling on appeal to the SCA. Complex and protracted litigation ensued after the NGO Women’s Legal Centre, which represented the litigants, cross-appealed.

‘What this court has done is craft an effective and comprehensive order in an endeavour to cure the hardship suffered by parties to Muslim marriages, especially vulnerable women and children, that will operate until appropriate legislation is put in place,’ the SCA judgment read. ‘The importance of recognising Muslim marriages in our constitutional democracy cannot be gainsaid. In SA, Muslim women and children are a vulnerable group in a pluralistic society such as ours. The non-recognition of Muslim marriages is a travesty and a violation of the constitutional rights of women and children in particular, including, their right to dignity, to be free from unfair discrimination, their right to equality and access to court. Appropriate recognition and regulation of Muslim marriages will afford protection and bring an end to the systematic and pervasive unfair discrimination, stigmatisation and marginalisation experienced by parties to Muslim marriages including, the most vulnerable, women and children.’ TimesLIVE notes the court ordered the President and the Minster to pay the legal costs.

– TimesLIVE

Judgment

The Law Society of SA (LSSA) has welcomed the ruling after making submissions as amicus curiae. ‘This is a judgment to be welcomed by thousands of women and children in the country. Many women and minor children did not benefit from the protection provided in the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979,’ said LSSA President, Mvuzo Notyesi. The decision also provided for the protection and the welfare of minor or dependent children of Muslim marriages at the time of dissolution of a marriage in the same manner as the Act provides to safeguard the welfare of children of other marriages that are being dissolved. The SCA quoted from the judgment of Moseneke J in the Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) case as follows: ‘This “persisting invalidity of Muslim marriages" is, of course, a constitutional anachronism. It belongs to our dim past. It originates from deep-rooted prejudice on matters of race, religion and culture. True to their worldview, judges of the past displayed remarkable ethnocentric bias and arrogance at the expense of those they perceived different. They exalted their own and demeaned and excluded everything else. Inherent in this disposition, says Mahomed CJ, is inequality, arbitrariness, intolerance and inequity.’