Piercing the Veil: The Struggle for Recognition of Islamic Marriages in South Africa
Our pre-constitutional jurisprudence is filled with judgments pertaining to the recognition of Islamic marriages. Ironically, the assimilation of jurisprudence has continued under our Constitutional democracy.
Early cases such as Bronn v Fritz Bronn’s Executors and others1, Ebrahim v Mohamed Essop2, Seedat’s Executors v The Master3, Kader v Kader4 and Ismail v Ismail5 are all reflective of the discrimination and prejudice that existed in South Africa at that time. They are reflective of the colonialist impact and influence, as well as the apartheid legislation of the time, and so reflect religious and racial intolerance.
Cases such as Seedat Executors and Ismail took place within a time when ‘blacks were denied most, if not all, basic human rights that we now take for granted. They were discriminated against. Their cultures and laws were not recognized except when they conformed to the “boni mores” of the “civilized peoples”. Their marriages were not recognized. The law reflected the values of one section of society which constituted the minority.6’ In essence, the judgments were uniform in treating marriages concluded in terms of the tenants of Islam as polygynous in nature and, therefore, contrary to what was perceived as the morals associated with the dominant and favoured Christian faith.
Under our new Constitutional dispensation, there are a number of new laws seeking to recognise and regulate the discrimination present in our family law. Legislation recognizing African Customary Marriages7 was enacted and, after successful litigation compelling Parliament to address the issue of same sex marriages, the Civil Unions Act 17 of 2006 was enacted. Clearly there was some impetus to rectifying the prejudice of the past on the part of government. However, the litigation surrounding the recognition and consequences of Islamic marriages has not abated.
It would be unfair to argue that the State has taken no steps to regulate or address the issue of non-recognition of Islamic marriages. In fact, in 1996 the then Minister of Justice recommended that the South African Law Reform Commission (SALRC) establish a specific task team to investigate the legal recognition of Islamic marriages and related matters and to draft legislation to recognise and regulate Islamic marriages under our new Constitutional dispensation. On 30 March 1999, the Minister appointed an Islamic Marriages Project Committee (Project Committee), which comprised nine members, headed by Judge Mohammed Navsa. Notably, only three out of the nine members were women.
The July 2000 Issue Paper provided the first opportunity for members of the public to understand and engage with the Project Committee on their mandate. The Issue Paper was the start of a long and extensive process of engagements with members of the Muslim community in South Africa. Individuals as well as organisations and religious institutions participated in making written submissions to the Project Committee. There were meetings with leaders of the Islamic religious community, three workshops (in Johannesburg, Cape Town and Durban) as well as written submissions.
The Issue Paper led to the publication of a Discussion Paper8, which included a draft Bill that provided for the legal recognition of Islamic marriages. Once again there was a round of engagements and written submissions were due on 31 January 2002. The Report that was released following the Discussion Paper dealt with the issues that had been identified from the various submissions they received. These included the status of spouses in Islamic marriages, the status of the children born from Islamic marriages, and the regulation of not only the marriage, but also the termination of the marriage. In particular, the Report recorded the difficulties especially women experienced in enforcing maintenance obligations, the consequences of the marital property regime and the difficulties encountered in terms of care of and contact with children born from the marriage. Since the initial Project Committee and the initial rounds of reports, there has been the publication of a Muslim Marriages Bill by the Department of Justice and Constitutional Development for general comment by the public. Since this draft Bill there has been little to no engagement with the public on the legislative drafting process or the enactment of legislation to recognise Islamic marriages.
In October 2005, the Commission for Gender Equality drafted a Recognition of Religious Marriages Bill. The Bill was in response to the SALRC process, but sought to be inclusive of marriages solemnised in terms of the various religions present in South Africa. So instead of a focus on Islam only, all marriages concluded in terms of the religious beliefs of South Africans would be recognised. Although there was some support at the time for the legislation, the process stalled along with the legislative development process undertaken by the State.
Throughout the above legislative development processes women have approached courts to seek relief from the negative impact that flows from the non-recognition of Islamic marriages. It is worth reflecting on some of these cases, the judgments handed down and how, through jurisprudence, advancements have been made towards the recognition of Islamic marriages.
In the Daniels’ case, the Constitutional Court addressed the issue of the definition of ‘spouse’ in the Intestate Succession Act. The Court extended the definition to include surviving partners in a monogamous Islamic marriage. Ngcobo J in the majority judgment said:
‘The constitutional order rejects the values upon which these decisions were based and affirms the equality of all South Africans. The recognition and protection of human dignity is the touchstone of this new constitutional order. The new constitutional order is based on the recognition of our diversity and tolerance for other religious faiths. It is founded on human dignity, equality and freedom.’9
In Khan v Khan10the Pretoria High Court held that a polygamous Islamic marriage could give rise to a legal duty on the part of a husband to maintain his wife. The Court therefore found that section 2(1) of the Maintenance Act 99 of 1998 applies to a wife in a polygamous marriage. In judgment the Court stated that:
‘The purpose of family law in general is to protect vulnerable family members and to ensure fairness in disputes that arise at the end of relationships. Polygamous marriages are a type of family and should be protected by family law. Polygamous marriages are accepted by the tenets of a major faith, ie. Islam, and the marriage between the appellant and the respondent was concluded in accordance with the tenets of such a major faith.11’
In the case of Hassam12 the Constitutional Court dealt with the proprietary consequences of a polygynous Islamic marriage within the context of intestate succession. The Court found that section 1 of the Intestate Succession Act was inconsistent with the Constitution as it only made provision for one spouse in the inheritance of a deceased estate. The Court stated that:
‘Contrasting the ethos which informed the boni mores before the new constitutional order with that which informs the current constitutional dispensation, the question remains whether affording protection to spouses in polygynous Muslim marriages under the Act can be regarded as a retrograde step and entirely immoral. The answer is a resounding “No”. I emphasize that the content of public policy must now be determined with reference to the founding values underlying our constitutional democracy, including human dignity and equality, in contrast to the rigidly exclusive approach that was based on the values and beliefs of a limited sector of society as evidence by the remarks in Ismail.’
It would appear that the courts have been open to recognition of Islamic marriages through upholding the right to equality in terms of the laws relating to maintenance and succession. The courts have managed to do this without distinctly recognising the marriages themselves, but through focusing on the discrimination and its impact on the lives of women. Indirectly, the courts are recognising the existence of marriages concluded in terms of the Islamic faith. The only outstanding issue is formal recognition through the enactment of legislation.
The Women’s Legal Centre Trust in 2014 launched an urgent application in the Western Cape High Court to challenge inequality within the marriage laws that exist in South Africa. There have been numerous delays in the matter being heard and at the time of this publication the case was set down for arguments in September 2016. What has been interesting to note in this case is the State’s response to the averments that there is a clear discrimination in the lack of recognition that is being given to Islamic marriages through government’s failure to enact legislation to recognise and regulate Islamic marriages. Government maintains that no other religion has received any preference in the form of a distinct marriage law and, by enacting legislation that would seek to only recognise Islamic marriages, this would put Islam at an unfair position over other religions in the country. This response, which is contained in the Answering Affidavit of the Deputy Minister of Home Affairs, is somewhat at a disjuncture with the position the government has held throughout the SALRC process. The Minister has advised that the SALRC will undertake a process of review of the marriage laws in the country in efforts to unify all marriages under one law. We now await another round of SALRC processes that will examine marriage laws holistically. Until the outcome of this process or the outcome of the High Court case, women married in terms of Islamic law will continue to endure discrimination as a result of their marriages not being recognised.
- 1860 (3) Searle 313.
- 1905 TS 59.
- 1917 AD 302.
- 1972 (3) SA 203 (RAD).
- 1983 (1) SA 1006 (AD).
- Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) paras 51–52.
- The Recognition of Customary Marriages Act 120 of 1998.
- Discussion Paper 101 of 2001.
- Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) para 54.
- 2005 (2) SA 272 (T).
- 2005 (2) SA 272 (T) para 10.5.
- Hassam v Jacobs NO v Others 2009 (11) BCLR 1148(CC).