Muslim marriage case at court

The community was there to support the High Court application for Muslim marriages to be recognised by government,

The Western Cape High Court was packed full of supporters on the eve of Human Rights Day in what could be a landmark case for women’s rights as women from different communities all came out to support the bid to have Muslim marriages recognised by the state.

The Women’s Legal Centre has lodged an application with the High Court, calling for government to recognise Muslim marriages.

The Western Cape High Court was due to hear arguments from the Women’s Legal Centre, the state, and interested parties on whether the failure to recognise Muslim marriages, among others, discriminates against women. There was large support from various communities both inside and outside the High Court on Monday March 20. The matter will finally be heard in August.

This case will provide direction to the legislature, Muslim communities, lawyers, civil society and stakeholders that deal with family matters and will bring certainty as to the legal status of parties to marriages solemnised under Islam and provide safety for children of Muslim marriages at the time such marriages are terminated.

There are several matters that are pending at a number of courts across the country – testament to the fact, says the Women’s Legal Centre, that Muslim women are struggling to assert their rights because their Muslim marriages and the consequences arising therefrom are not legally recognised.

The director of the Women’s Legal Centre, Seehaam Samaai, said since the Muslim Marriages Bill was published in 2011, there has been public participation but little progress in implementation. In 2014, the Women’s Legal Centre lodged an application with the court.

“We believe there is a failure by the state to protect Muslim marriages. The only recourse these women have is to go to court. At the end of the day it is not recognised as a marriage and doesn’t have the same rights as a civil marriage. It is 20 years down the line and the state has an obligation to protect them.”

Ms Samaai, who is originally from Bo-Kaap, added that there has been recognition of customary marriages. “We are asking the question as to why they are taking so long with religious marriages – Hindu, Jewish and Muslim marriages are not recognised.
Because the marriages are not protected they (women) don’t have access to some of the rights. We always find these pieces of legislation which does not include the religious spouse,” said Ms Samaai.

Ms Samaai said the case was significant for the rights of all women. “We want to say that this matter is not just on behalf of Muslim women but for all women. All women need to stand in solidarity with each other. Women in South Africa won’t be free if all women aren’t free. Women are your sisters, your cousins and your neighbours and if their rights are not respected it impacts and has a ripple effect on the entire community.

“They must see this as a broader societal problem and not just as a religious one This will truly give meaning to unity and diversity. It will mean that South Africa protects all people who live in it. It will show the world how South Africa can unify customs and religions. It could be a landmark case globally.”

Oranjezicht resident Leaza Cowan, of the Union of Jewish Women, was also outside court to support the application. “We empathise with them. For us this rings true and you need to support all women. Religions shouldn’t be holding people prisoner. In a democratic society, religious issues need to be recognised and government should work with religious leaders. The significance of this case is that women will be heard.”

She stressed that women should support women. “It doesn’t matter what religion, colour or where you come from. Women’s rights are human rights and as women we need to stand up and be counted. We need to shout it from the rooftops.”

Women from the Bo-Kaap community were also at the court in support. Bo-Kaap resident Naazneen Salaam, said: “It is very important that Muslim marriages be recognised because at the end of the day, if there is a divorce, you get nothing.”
Also supporting the cause was Sumaya Bester. “Why are we still sitting with this problem 20 years later? We need to tell government that they must change the laws and they need to recognise all women.”

Another woman from Bonteheuwel said the matter was important to her as she was experiencing exactly what happens when religious marriages are not recognised. The woman, who asked to remain anonymous as she was going through a separation, said: “The problem is we have a house in both our names. Where do I go from here and what if my husband wants the house. I’ve been working all these years and I put most of my money into the house. For years I didn’t worry about what went into the house but at my age, over 60, where do I go from here? Mentally it is affecting me already.”

Pat Debba, chairperson of the Lentegeur Community Forum in Mitchell’s Plain, was also outside court on Monday to show support. “We are all living in the same country and everybody has the right to their own religion. Usually the woman is the one who bares the brunt of it and has no say. We want to make it clear that we are with all of them.”

She said a large part of the community of Lentegeur included people who were removed from District Six where there was a mixed community. “It’s not about religion – an injury to one is an injury to all. It’s about women’s rights and we must stand up for our rights. I’m here today because I feel we can make an impact. It is about people.”

The matter was postponed to August 28 after consultation with all the concerned parties. It is expected to proceed until September 8.