Western Cape High Court Judge Siraj Desai has expressed dissatisfaction at the state’s failure to fulfil its obligation to introduce legislation to recognise Muslim marriages as valid, and to regulate the consequences of these unions, ordering the President and Cabinet, together with Parliament, to rectify the failure within 24 months.

He was ruling on an application brought by the Women's Legal Centre (WLC), which said it was aimed at providing Muslim women and their children with legal protection upon divorce.

This, it explained, was being sought due to the ‘continued failure on the part of government to fulfil the obligations placed on it by the Constitution to recognise Muslim marriages as valid marriages for all purposes in SA, and to regulate the consequences of such recognition’.

The matter was heard by Judges Desai, Gayaat Salie-Hlophe and Nolwazi Boqwana, observes a News24 report. Desai said should legislation not be enacted within two years, it was declared that a union – validly concluded as a marriage in terms of Sharia law and which subsisted at the time that the order becomes operative – may be dissolved in accordance with the Divorce Act and that all provisions of that Act be applicable.

In the case of a Muslim man with more than one spouse, the court shall take into consideration all relevant factors, including any contract or agreement and must make any equitable order that it deems just, Desai ruled. The President and the Ministers of Justice and Home Affairs were instructed to pay the costs of the Women's Legal Centre Trust.

Full News24 report

Women's Legal Centre Trust v President of the RSA and Others, Faro v Bignham NO and Others, Esau v Esau and Others

Both the Muslim Judicial Council and the WLC have welcomed the decision. ‘The significance of this judgment is that the President of the country has now been tasked to enforce the legislation. We would like to remind the President that he can make his mark in history by recognising the Muslim community in their marriages which is long overdue,’ the council's Shaykh Riad Fataar is quoted as saying in a report on the IoL site.

‘We await the government to fulfil their constitutional obligation and facilitate the process to enact the legislation as soon as possible as per the court order,’ he added.

The WLC claims the judgment – and the order made – was of great significance for women entering into a Muslim marriage, says a News24 report.

‘The court referenced a number of Constitutional Court judgments in confirming that 'women continue to occupy a vulnerable position in our society in relation to familial structures', and accepted the comparison made by the WLC between the recognition and protection afforded to women in Muslim marriages, and the recognition and protection of partners in civil or customary marriages,’ the WLC said.

It added that it hoped to see the fruits of the judgment in the coming months, and that the state would introduce legislation without delay. The Commission for Gender Equality had similar views, stating: ‘We celebrate this victory and hope that the state take steps to comply and make what the judgment envisages a reality for women in Muslim marriages.’

Full report on the IoL site

Full News24 report