Source: Abdul Buckus

Application to compel recognition of Muslim marriages evokes fierce legal argument

As 2015 drew to a close the Women’s Legal Centre’s application to compel government to recognise Muslim marriages finally saw the light of day.

However the organisation encountered yet another stumbling block as their locus standi (the right or capacity to bring an action or appear before court) was contested by Muslim organisations.

On Tuesday the 01st December 2015, Judge Siraj Desai, at the Western Cape High Court, heard arguments from the Women’s Legal Centre among others on whether the law’s failure to recognise Muslim marriages discriminated against women.

Wednesday the 02nd December 2015 though, featured argument of an opposing nature. Advocate Zehir Omar, representing the United Ulama Council of South Africa, and Lajnatun Nisaa-Il Muslimaat, argued that The Women’s Legal Centre was unfit to appear before Court in this case.

The legal argument was intense with Omar, at a point comparing the Women’s Legal Centre’s appearance, to his feline pet appearing before court.

Omar stated that the Women’s Legal Centre, contravened its own constitution. He alleged the case being brought was discriminatory, in that it only targeted Islam despite there being gender-related issues in other religions. He added that the entire hearing was an attempt to discredit Islam. If the Bill was passed, it would make the Constitution supreme, and the Quran would surrender to the constitution, which could not be tolerated, according to Omar.

His view is that Islamic law is far more comprehensive in protecting women. Under Islamic law, an ex-husband is obligated to maintain his ex-wife for the period of Iddah (three months after the divorce), whereas South African law imposes no such obligation.

Considering the ongoing divergent views highlighted in my previous article, “What is the legal status of a (nikah) Muslim marriage in South Africa”, it now appears more unlikely that this matter will reach finality any time in the near future.

The court will have to rule on the point of locus standi before May 2016, when the applicants are expected to ask the court to compel government to pass legislation that would give Muslim marriages legal status.

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