Thu, 16 Jul 2020

Muslim marriages case heads to SCA

25 May 2019, 22:10 GMT+10

The recognition of Muslim marriages case is expected to come before the Supreme Court of Appeal, the Women's Legal Centre (WLC) said.

A full bench of the High Court in the Western Cape granted leave to appeal, and leave to cross-appeal their judgment in case earlier this month.

In August, the high court ordered that the State was obliged to introduce legislation to recognise Muslim marriages as valid, and to regulate the consequences of these unions.

This was aimed at providing Muslim women and their children with legal protection upon divorce.


The President and the Minister of Justice applied for leave to appeal against the whole judgment, while the WLC applied for leave to cross-appeal.

The WLC's Aisha Hamdulay explained this week that they were dissatisfied with certain parts of the judgment.

"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," she said.

"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."

The WLC felt the court erred in finding that these marriages were currently out of community of property "when we know that people have different ways in which they deal with marital property". The legislature, and not the courts, should determine this issue, said Hamdulay.

'Court erred'

"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."

Hamdulay said they were confident that the SCA would address these issues to ensure the constitution was upheld.

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