In what could be a precedent-setting case, the call to recognise Muslim marriages was heard at the Western Cape High Court this week.
Earlier this year, the Women’s Legal Centre, a non-profit organisation, lodged an application with the high court, calling for government to recognise Muslim marriage.
On Monday, about 30 women from different community organisations gathered outside the court in support of the centre’s case.
In a statement issued to the media, the Women’s Legal Centre said it had made the government aware that “the lack of legal recognition of Muslim marriages had resulted in Muslim women being treated unfairly upon the dissolution of marriage”.
“A process was started in 1996 by government to recognise Muslim marriages but came to a halt in 2012 after the bill was published for comment,” it said.
The organisation added that they were taking the matter to court because “the non-recognition of Muslim marriages has far-reaching implications and consequences for women in Muslim marriages, as they do not have the protections offered to women in civil marriages”.
In addition to this, it added: “Religious and cultural tribunals or religious decision-making bodies that aim to assist women lack the enforcement powers to ensure rulings are implemented.”
Director of the Women’s Legal Centre, Seehaam Samaai, said she felt encouraged by the support outside court on Monday. Ms Samaai, who lives in Sea Point, said among the organisations which were supporting the Women’s Legal Centre were the Muslim Assembly, the Cape Law Society, the South African Lawyers for Change, the South African Human Rights Commission as well as the Commission for Gender Equality.
Explaining why the case was important, she said, for example, in a civil marriage, when parties got divorced a family advocate would be appointed to handle court matters.
However, she said: “In Muslim marriages, because there is no legislative framework and that marriage is not recognised, the same conditions are not given. It’s not always in divorce. There might be the death of a particular
party. “Those are the types of issues that Muslim women and children have to go through on a daily basis.
“We are saying that this is not just a Muslim issue, this is a women’s rights issue. This could be your neighbour, sister or whoever and you need to be able to support them. There are organisations here today from Bonteheuwel, Lentegeur, Malmesbury and Paarl. They are from all over and they are supporting the Women’s Legal Centre in this particular case.”
Ms Samaai added that it was important to see the case within our own historical context and how intersecting issues of class, race and gender impacted on the daily realities of Muslim women.
“This case therefore cannot be seen through one marginalised lens, which is religion. Muslim women in South Africa have endured systematic injustice and inequality within society, and the state has an obligation, in terms of our constitution, to address the historical and inter sectional discrimination perpetuated against Muslim women.”
The case is set to be heard by judges Siraj Desai, Gayaat Salie-Hlophe and Nolwazi Boqwana who, on Monday, were presented with the introduction of the Women’s Legal Centre’s case.
Judge Desai said while the Women’s Legal Centre would argue their case for the next three days and the State would respond next week, it was “optimistic” that the case would be finished within the two weeks which had been set aside for it.