Objections that the state received from Muslim groups – some of whom accused legislators of attempting to interpret the Koran – made it difficult to enact laws recognising Muslim marriages.

A Cape Times report notes the State Attorney has raised this argument in papers filed at the SCA on behalf of President Cyril Ramaphosa and Justice Minister Ronald Lamola. They had sought to appeal a 2018 judgment that gave Parliament 24 months to enact legislation recognising Muslim marriages.

Judge Siraj Desai delivered what was celebrated as a landmark judgment at the Western Cape High Court in August 2018, declaring the state’s failure to pass Muslim marriage laws as unconstitutional.

Ramaphosa and Lamola are headed to the SCA to argue that his judgment was legally flawed.

The State Attorney’s affidavit rejects the finding that there was unconstitutionality in not enacting Muslim marriages law.

There was no constitutional obligation in the first place for the state to pass religion-based marriage laws in a secular democracy, argued the attorney.

‘First, at present there is no legislation recognising any form of religious marriage, (whether) Hindu, Jewish, Islamic, Buddhist or any religion. Accordingly, Muslim marriages have not been singled out for non-recognition,’ said the State Attorney in the papers.

‘The approach adopted under the current legal framework is to regulate only secular marriages, and to afford religious communities the freedom to conclude religious marriages in accordance with the prescripts of their particular religion.’

There was ‘no legislative impediment’ to Muslim couples being protected under the Marriages Act, said the State Attorney.

‘Muslim couples are free to solemnise their marriages in terms of the Marriages Act and thus acquire for their relationship the status of a civil marriage.’

Divisions in the Muslim community were what blocked the state from forging ahead with the Muslim Marriage Bill, published in 2010, notes the Cape Times report.

‘The state currently faces serious opposition to the promulgation of legislation recognising Muslim marriages,’ said the papers.

‘The nature of those objections fundamentally raise the question of whether legislative regulation is, in the first instance, consistent with the principles of Sharia. Some Islam theologians told the government that “it is not permissible to legislate in respect of Muslim marriages, that the dictates of the Holy Koran prevail in such matters”. The effect of relief sought is for the state to legislate on key aspects of Sharia and for this court to direct that the state does so.’

Full Cape Times report (subscription needed)