In the recent judgement – Women`s Legal Centre v The President of the Republic of South Africa and Others (2018) ZAWCHC 109 (31 AUGUST 2018), the court considered the non-recognition and non-regulation of marriages under the tenet of Sharia (Islamic) law, which violated the rights of woman and children in terms of section 7 of the Constitution.
The applicants argued that the State failed in its duty to respect, promote and fulfill the rights in the Bill of Rights and as a result, their rights to equality, dignity, freedom of religion, best interest of the child and access to courts have been infringed.
The court effectively ordered that the State is obliged, in terms of section 7(2) of the Constitution, to diligently and without delay enact legislation to recognize marriages solemnized in accordance with the tenets of Sharia Law as valid marriages and to regulate the consequences of such recognition.
The court further declared that the President and his cabinet have failed to fulfil their respective constitutional obligations and ordered the President and the cabinet to rectify the failure within 24months.
The court awarded interim relief by declaring that unions validly concluded as a marriage in terms of Sharia law, which existed at the time of this order, can be dissolved in accordance with the Divorce Act 70 of 1979 and all the provisions of the Act shall be applicable. The court made provision for women in polygamous marriages.
The court further indicated that should legislation not be implemented within the 24-month period, the courts can continue to apply the provisions of the Divorce Act 70 of 1979, until such time as legislation has been enacted.
This judgment acknowledges the hardships women in Muslim marriages face, including inadequate legal protection and no automatic access to the courts to protect their rights. This became problematic when dealing with issues of custody, maintenance and the dissolution of marriages. Women were assisted by the court on a piecemeal basis, however, the relief provided was ineffective as each matter was decided on a case by case basis which highlighted the inconsistencies. The non-recognition of Muslim marriages is significant in our law as it affects millions of Muslim women and children around the country.
Although the legislation is still to be implemented, this judgment sets a precedent by awarding Muslim women rights. It has taken Twenty-four years into our constitutional democracy to protect the rights of Muslim woman, a decision to be applauded.