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22
July 2009
Con
Court finds legislation to legalise Muslim marriage must
first be heard by High Court
The
Constitutional Court today handed down judgment on the
procedural aspect of the Women's Legal Centre Trusts'
application for an order that the President and Parliament
should pass legislation recognising Muslim marriages
within 18 months. The Constitutional Court held that the
substantive application should be heard first by the High
Court because the obligations in question involve not only
the President and parliament.
The
Women's Legal Centre Trust, earlier this year, approached
the Constitutional Court for an order that the President
and Parliament should pass legislation recognising Muslim
marriages within 18 months.
This
application was made in terms of Section 167 of the
Constitution which states that only the Constitutional
Court may decide that the President or parliament have
failed to fulfill a constitutional obligation. The Women's
Legal Centre argued that the failure to legislate to
recognise Muslim marriages was such a failure.
Jennifer
Williams, the director of the Women's Legal Centre says
judgments over the years dealing with this issue on a
piecemeal basis (and extending these marriages recognition
for limited purposes) have been based on the unfair
discrimination Muslim people suffer as a result of the
failure of the law to recognize their marriages. "The
President and Parliament would have to pass legislation in
order for these marriages to be recognised and for the
situation to be remedied".
Williams
explained that the main application for an order that such
legislation be passed within 18 months was not considered
by the Constitutional Court.
The
Court only heard argument on whether the obligation to
pass legislation contended by the Centre is one that falls
under Section 167(4)(e) or not. The application of this
section is a grey area in the law and the court was
required to decide whether it should hear the substance of
the application itself or the High Court should hear it
first.
While
the application did result in some movement on legislation
(such as the cabinet considering the current Bill and the
new Minister of Justice agreeing to prioritise the
legislation) the Women's Legal Centre Trust intends to
proceed with the application in the High Court. Jennifer
Williams stated that "the judgment today deals with a
procedural issue only, and the Constitutional Court has
now given its interpretation of the relevant section and
the reasons why it should be of narrow application. The
Trust will proceed with the main application (in relation
to the recognition of Muslim marriages) in the High Court".
Background
Muslim
marriages are still not legally recognised in South Africa
which means that Muslim women are not afforded legal
protection and have no legal redress to assert their
rights, which women have who are married civilly or
according to African customary law.
Legislation
relating to Muslim marriages has been on the cards since
1996 when the law reform process began. A draft Bill was
completed in 2003, but there has been no indication of
when that legislation will be passed.
The
constitutional vision of an egalitarian society
necessitates embracing the diversity of South Africans.
This is illustrated by legislation recognizing polygany in
customary marriages and by the judiciary recognizing
Muslim marriages on an ad hoc basis to protect the
individual rights of the parties in the matter before the
court.
Legislation
urgently needs to be passed in order to be on par with the
Constitution to ensure the Muslim community’s human
rights.
Issued
by : FD Beachhead
On
behalf of : The Women's Legal Centre
For
further information please contact :
Hoodah Abrahams-Fayker, Attorney, Women's Legal Centre
Cell : 072-252 0333 |