CHAPTER 2

THE BACKGROUND TO THE INVESTIGATION

2.1 The political transformation in the country, commencing with the adoption of the Interim Constitution on 27 April 1994, (Act 200 of 1993) and a Final Constitution (Act 108 of 1996) which came into force on 4 February 1997, was the catalyst for renewed attempts at the legal recognition and enforcement of aspects of Muslim Personal Law.^[9]

2.2 Both the Interim and Final Constitutions, in guaranteeing freedom of religion, provided that the State may pass legislation recognising systems of personal and family law, but subject to the Constitution. Section 15 of the Final Constitution provides as follows:

(1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

Religious observances may be conducted at state or state-aided institutions, provided that –

those observances follow rules made by the appropriate public authorities;

they are conducted on an equitable basis; and

attendance at them is free and voluntary.

(3) (a) This section does not prevent legislation recognising –

marriages concluded under any tradition, or a system of religious, personal or family law; or
systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.

(b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.

2.3 Under the new dispensation various endeavours on the part of the Muslim community to seek legal recognition of aspects of Muslim Personal Law finally led to the establishment of a Project Committee of the South African Law Commission in respect of its investigation into Islamic Marriages and Related Matters.^[10]

2.4 The then Minister of Justice established this Project Committee on 30 March 1999 in terms of section 7A(b)(ii) of the South African Law Commission Act, 1973.

2.5 The terms of reference of the Project Committee is “to investigate Islamic marriages and related matters with effect from 1 March 1999 for the duration of the investigation”.

2.6 The deliberations of the project committee since March 1999 led to the compilation of an Issue paper (Issue Paper 15) which was circulated for public comment in July 2000.

2.7 The purpose of the Issue Paper was to identity the issues and the problem areas, arising out of the investigation, with a view to maximum consultation with all interested parties and bodies, so as to obtain their responses and inputs in arriving at an appropriate solution to the issues and problems as identified therein.

2.8 The following tentative proposals were put forward in the Issue Paper:

Couples contemplating a marriage should have the right to choose a marital system which is compatible with their religious beliefs and with the Constitution.
To the extent that legislation is to give effect to the recognition of Islamic marriages, the new statute ought to provide for both new marriages and existing marriages.
In the case of new marriages, the legislation should provide at least for the following matters:

(i) the age of consent, which should be 18 years;

actual and informed consent to the conclusion of a marriage in written form;
the designation of marriage officers who are entitled to perform Islamic marriages;
the registration of marriages by the signing of a marriage register;
the formalities pertaining to the time, place and manner of solemnisation of Islamic marriages;
the appropriate marriage formula for the solemnisation of an Islamic marriage;
a prohibition on marriages within certain prohibited degrees of relationship, including the rules relating to fosterage according to Muslim Personal Law;
a standard contractual provision in terms of which a Muslim Personal Law system is established in the event of parties contemplating a Muslim marriage;
the prescription of penalties for false representations or statements.

In the case of existing marriages, and in view of the decision in Amod & Another v Multilateral Motor Vehicle Accidents Fund, in which the Court gave legal recognition to a Muslim marriage for purposes of the duty of support, little difficulty arises in affording recognition to de facto monogamous marriages. It was suggested that such marriages would require registration upon satisfactory proof to a designated marriage officer that there is an existing Islamic marriage. Proposals were invited concerning the affording of recognition to polygamous marriages entered into before the commencement of a new statute, particularly in regard to potential complications such as existing proprietary rights, maintenance, succession and social welfare benefits.
Regarding the consequences of registration of existing Islamic marriages, it was suggested that parties who choose to register existing Islamic marriages must reach agreement as to the appropriate matrimonial property regime. Again no particular difficulties were envisaged in respect of de facto monogamous marriages. In respect of existing polygamous marriages account would have to be taken of the rights of each of the parties. Proprietary rights and interests as well as the interests of the children born of the various marriages would have to be protected.
Competing rights in the event of an existing civil marriage and a subsequent or prior Islamic marriage have to be addressed.
Regarding divorce and the issue of dissolution of a marriage by Talaq, it was suggested that the bonds of marriage should be dissolved on grounds contemplated in the Divorce Act, 1979. It was suggested that marriage officers should be required to recognise a Talaq in the presence of the parties and for record and official purposes and for consonance with the Constitution, a Talaq should be confirmed by a court. Moreover, it was suggested that legislation which recognises aspects of Muslim Personal Law must also provide for an effective system of dispute resolution.
In order to avoid abuse, it was suggested that any proposed legislation stipulating the grounds on which the conclusion of a polygamous marriage would be permissible, has to be narrowly circumscribed in recognition of the limitations set out by the Qur’an itself. Comment was required on whether a court should objectively decide that the factual (Qur’anic) circumstances exist justifying a second marriage.
In view of the fact that wives and children frequently require protection to ensure their continued welfare upon the dissolution of a marriage, it was proposed that protections similar to those in the Divorce Act, 1979, and the Recognition of Customary Marriages Act, 1998, should be included in any statute giving recognition to Muslim Personal Law.

2.9 As a result of the circulation of the Issue Paper, various interested parties responded. Those responses are summarised in Chapter 3. The responses were extremely useful in the proper consideration of all issues raised, and in developing both a vision, and practical solutions, to the legal implementation of Muslim Personal Law in South Africa. The Project Committee accordingly expresses its sincere appreciation to the respondents whose names appear in Annexure B of this Discussion Paper for their valuable inputs and representations.^[11]

^[9] The previous attempts, during the apartheid era, at securing recognition of Islamic marriages did not enjoy the support of the broader community, because they were inter alia perceived as giving legitimacy to the white minority regime and its unjust policies.

^[10] This was not the first Project Committee of the Commission to give attention to the recognition of Islamic marriages. As far back as 1990 a previous committee met to consider a working paper dealing with the nature of Islamic law and the conflict between the common law and Islamic law as well as the observance of Islamic law in South Africa. A comparative legal study received further attention during the year. Further work in the investigation was delayed by, amongst others, the finalisation of the 1996 Constitution. The Commission reconsidered the status of the project in 1996 and decided to accord the investigation the highest possible priority rating and to recommend the appointment of a Project Committee. During March 1997 two workshops were held in order to involve the public in the planning of the investigation and to elicit nominations for appointment to the Project Committee. As a result of advertisements in the press and the open invitation extended at the workshops 78 nominations were received. The constitution of the present Project Committee is the result of those nominations.

^[11] These inputs and representations were properly taken into account in the formulation of the draft Bill contained in Annexure A.

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