Media statement: Update in respect of the Recognition of Muslim Marriages Case (Women’s Legal Centre v The President and Others):

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MEDIA STATEMENT: Update in respect of the Recognition of Muslim Marriages Case (Women’s Legal Centre v The President and Others):

24 May 2019

On 9 May 2019, a full bench of the High Court in the Western Cape granted leave to appeal, and leave to cross-appeal their judgment in the Recognition of Muslim marriages case. The judgment and order, handed down in August 2018, held that the State has a duty to recognise marriages concluded in terms of Shari’a law, and that the State has an obligation to enact legislation which will ensure the judgement becomes a part of recognized law. The legislation, however, is only required to be formally legislated in two years, which leaves women vulnerable in the interim.

In October 2018, the President and the Minister of Justice applied for leave to appeal against the whole judgement. Leave to appeal was subsequently granted, and it was decided that the matter will be taken to the Supreme Court of Appeal.

The Women’s Legal Centre applied for leave to cross-appeal against the judgement in October 2018, which was granted on 9 May 2019.  Our reasons for cross appealing were that we were dissatisfied with the following parts of the judgment:

  1. We believe that the Court should have granted interim relief to women who are currently in a position where they require legal recognition of their marriages, so that their rights to housing, land and property are protected until legislation in enacted. The judgment did not provide women with any remedy while they awaited the two-year period for the state to develop and adopt legislation recognising their marriages.
  2. We believe that the Court erred in finding that Islamic marriages are currently “out of community of property” in South Africa when we know that people have different ways in which they deal with marital property within their marriage, and at the dissolution thereof, This is an issue best left to the legislature, and not the courts, to determine.
  3. Our cross-appeal is also driven by our belief that the Court erred in finding that there was widespread objection to legislative regulation and a lack of consensus in this respect in the Muslim community in South Africa. This was an irrelevant finding to the relief sought, and there was simply not enough evidence before Court to draw this conclusion. Even where there is possible objection, such objections cannot override the state’s constitutional duty.
  4. Further, the Court erred in not compelling the Minister of Justice and Constitutional Development to put in place policy or regulatory measures in terms of the Intestate Succession Act, to deal with the administration of estates which come from Muslim marriages at the office of the Master of the High Court. We led evidence showing that there was enough case law to justify putting in place such regulatory /policy measures.
  5. The Court further erred in failing to find that there is an obligation on the Minister of Justice to put in place measures that promote and protect Muslim women’s access to rights already given by prior judgments of the Courts, in respect of the consequences of Muslim marriages, particularly in respect of intestate succession.

We are confident that the case and the issues faced by Muslim women will be addressed by the Supreme Court of Appeal in ensuring that the principles of our Constitution are upheld. At the same time, we are mindful that women continue to face a violation of their rights, as well as discrimination on a daily basis because of the lack of recognition of their marriages. We continue to consult a number of women every day who face these and other kinds of injustices, which drives our further litigation and urgency on this matter, highlighting the need and importance of feminist litigation. Women in South Africa are entitled to equal recognition and protection of their Constitutional rights, regardless of race, gender, religion, economic status or other.

For further enquiries, contact Aisha Hamdulay at aisha@wlce.co.za or communications@wlce.co.za