Court orders government to pass law recognising Muslim marriages

The government has been given two years to pass legislation recognising Muslim marriages.

A judgment on Friday by a full bench of the high court in Cape Town said the president and cabinet had failed to fulfil their constitutional obligations by leaving the issue of recognition and regulation of Muslim marriages outstanding for many years.

Judge Nolwazi Boqwana said she and judges Siraj Desai and Gayaat Salie-Hlophe hoped the government would act without delay “in bringing about legislation so as to eradicate the continuous hardships faced by women and children in Muslim marriages”.

If the new legislation was not passed within the 24 months‚ the judgment said that with effect from August 31‚ 2020‚ Muslim marriages could be dissolved in accordance with the Divorce Act.

But if the matter was referred to the Constitutional Court‚ this date would be deferred.

The cases adjudicated on Friday were brought by the Women’s Legal Centre Trust‚ Tarryn Faro and Ruwayda Esau. They were opposed by the Presidency‚ the ministers of justice and home affairs‚ the Speaker of the National Assembly and the chairperson of the National Council of Provinces.

Friends of the court who argued in favour of the applicants’ cases included the United Ulama Council of SA‚ the Law Society of SA‚ the Muslim Assembly and the Commission on Gender Equality.

Those who argued against change included Jamiatul Ulama KwaZulu-Natal‚ which said the constitution is incompatible with Islamic law; and the Islamic Unity Convention‚ which said enacting legislation would infringe Muslims’ rights to freedom of religion by forcing them to choose between the law of the land and Islamic law.

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