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3.1 The submissions received by the Commission from the respective respondents are summarised in this Chapter:
(1) Islamic Unity Convention (IUC)
3.2 The IUC was extremely critical of the Issue Paper published by the Commission and devoted, to this end, a substantial portion of its submission, criticising the ‘nature and scope’ of the research paper of Advocate Mohammed Vahed.[12] Its position was that the Issue Paper was an attempt by the SALC ‘to impose its own ideological views on the Muslim community’. In particular, it held the view that the Issue Paper betrayed a ‘Eurocentric bias’, which ignored the value of ubuntu.
3.3 Its chief response to the introduction of Muslim Personal Law ‘as a system of law into South African law’ was that the proposals of the Commission ‘stand rejected in their entirety’. Absent from this entire exercise, it is regrettably pointed out, is any meaningful contribution, by the IUC, to the proposals, which it stated, were ‘fatally flawed’.
(2) Institute of Islamic Shari’ah Studies (ISS)
3.4 The response of the ISS is based on its rationale that the Shari’ah (MPL) is irreconcilable with the South African Law and that either the former will have to ‘give way’ to the latter or the latter will have to be altered to ‘accommodate’ the former.
3.5 In its submissions proper it reiterates the existence of ‘an insurmountable clash between the Shari’ah and South African Law’. However, notwithstanding the foregoing, it seemed to support much of the recommendations enshrined in the Issue Paper as will be evidenced from the summary below.
Choice of marriage system
3.6 A true Muslim, it submits, has no choice whatsoever though issues pertaining to marital property and related issues can be contractually ‘regulated’.
Recognition of Muslim marriages
3.7 It supported the suggestion in the Issue Paper subject to the rider that a ‘proper and competent Islamic authority’ be permitted to make a rule ‘for a lower age’.
3.8 It supports the suggestion in the Issue Paper.
3.9 It supports the suggestion subject to the rider that consideration be given to ‘groupings, institutions or individuals who must have the requisite knowledge of the laws pertaining to Muslim marriages’.
3.10 It supports the suggestion but adds that prospective partners must get to know about ‘the marriage history of each other as to divorce, anti-Muslim conduct, neglect of maintenance etc to prevent deceit of any party, something that had occurred quite often in our society’.
3.11 It submits that all intending parties complete and execute an application form applying to be married indicating free and clear consent to marry their prospective or intended spouse. It supports the registration regime as proposed per its recommendation 16.
3.12 It supports the suggestion through its own recommendation 17 supplemented with the rider that ‘the groom must unconditionally, unambiguously and verbally accept and sign his acceptance at the actual marriage ceremony.’
3.13 It supports the suggestion through its own recommendation 18 and further it submits that since there is no such thing as adoption in the Shari’ah, there is no prohibition for marriages ‘in an adoptive situation’.
3.14 It makes the recommendation that a ‘register of Muslim jurists’ be drawn up who will assist in drawing up such contracts. It also recommends that there be a specific clause prohibiting the issuing of Talaq ‘without a valid Shari’ah sanctioned reason should be included as well as reason when a Faskh should be granted to the wife’.
(3) Natal Law Society (NLS)
3.15 The NLS, mindful of ‘other factors involved including resistance from the religious groups themselves’ supports, in principle, the recognition of Muslim marriages. It submitted that there were obstacles such as the issue of polygamy, which have to be overcome.
(4) Waheeda Carvello: Women’s Activist for Justice and Equality
3.16 We would be failing in our duty to accurately summarise all submissions made without endeavouring to capture the essence of the thought processes and the thinking trenchant behind every submission made to the Commission. Accordingly Waheeda Carvello’s erudite submission deserves more than a cursory mention thereof.
3.17 Against the background that Qur’anic values have been dominated from a male perspective, Waheeda Carvello makes the point that the foregoing has had ‘a direct negative impact on the implementation of Muslim Personal Law throughout the Muslim world’.
3.18 In her analysis of the Issue Paper her submissions are as follows:
Choice of marriage system
3.19 It is an erroneous assumption, itself in conflict with the constitutional right of freedom of religion, that Muslim couples will choose ‘another system of marriage besides an Islamic marriage’. In sum she does not support the suggestion in the Issue Paper. Recognition of Islamic marriages, she posits, will negate the need for a dual system of marriage.
3.20 She supports the proposal in the Issue Paper. Her understanding is that the Qur’an does not mention a specific age but rather ‘insists on the level on intellectual maturity’ and that the importance of thus lies in the fact that both parties must be able to exercise their own judgment and power of attorney.
3.21 She supports the suggestion, through her recommendation 13, citing alleged abuse of the laws of Islam where consent by proxy is often the norm and she further makes the recommendation that the consent form include a test to determine the HIV status of both parties (our emphasis).
3.22 She supports the suggestions through her recommendation 14 on the grounds that it is in accordance with the constitutional right of Muslim South Africans. Registration would centralise records and prove beneficial to women and children of polygamous unions and thus prevent the alleged current abuse under the current system where ‘unstructured records’ maintained by local mosques.
3.23 She supports the suggestions through her recommendation 15 which recommend that marriage officers should be familiar with both the civil as well as Muslim Personal Law and further makes the recommendation that such marriage officers conduct pre-marriage counselling.
3.24 Whilst in principle she agrees with the suggestion pertaining to the foregoing, she makes the recommendation that Qur’anic provisions relating thereto be strictly adhered to with the bride having the option to be in the same room with the groom where the marriage is being solemnised.
3.25 She makes the recommendation that the suggestion in the Issue Paper should ensure that ‘legislation includes the current marriage formula in terms of Muslim Personal Law’.
3.26 She supports the suggestion supplemented by the rider that the Qur’anic law regulating provisions to the prohibitions of certain marriages must be applied.
3.27 It is a sine qua non of Islamic marriages, she submits, that a marriage contract be drawn up in accordance with Qur’anic Law and that ‘no compromise in this regard can be adhered to’. Concerns about HIV, divorce, maintenance and declaration of marital status compel a recommendation that the foregoing issues be incorporated in every marriage contract. She supports the suggestion in the Issue Paper, subject to the foregoing.
3.28 She was highly critical that the Issue Paper failed to address adequately the issue of polygamous marriages. An understanding of Islamic polygamous marriages in terms of Qur’anic Law, she submits is imperative since the injunctions of the Qur’an pivot around ideals of justice, equality and balance in every sphere of life. Her exegesis on polygamy makes refreshing reading that was found to be very useful.
3.29 She makes an interesting comment that all Muslim marriages are marriages out of community of property and that this has often been misunderstood and abused due to women allegedly being robbed of their Islamic identity throughout the ages. She therefore submits that it is important that new legislation protect women.
3.30 She agrees with the Issue Paper that divorce is one of the most potentially contentious issues in MPL and thus makes the recommendation that divorce procedures as stipulated in the Qur’an be strictly adhered to. In principle she appears to support the suggestion in the issue paper regarding the grounds for divorce as well as the recognition of ‘additional grounds to cater for special facts and circumstances, which may arise in an Islamic marriage’.
3.31 She makes the suggestion that an arbitration procedure adhering to the Qur’anic Law be adopted and further that as regards divorce, that there be an appropriate registration procedure with an appropriate authority being charged to inform the couples of their respective rights and duties issuing from the divorce.
(5) Association of Accountants and Lawyers for Islamic Law (AMAL)
3.32 AMAL, in its elaborate submission is in support of legislation recognising Islamic marriages provided that such legislation did not in any way change the principles enshrined in the Shari’ah. It strongly believes that the mechanism enforcing such legislation ‘must be appropriate in all the circumstances’. The current proposals in the Issue paper, however, are irreconcilable from its perspective. From its existing comments one can glean an outright rejection of almost all the suggestions contained in the Issue Paper. Its greatest concern surrounds the contentious issues of Talaq, polygamy, solemnisation of marriages etc.
3.33 In its preliminary remarks it categorically states that its review is ‘a reasoned critique of the Issue Paper and not a legal rebuttal nor an Islamic counter proposal’. For the sake of completeness its standpoint on the choice of marriage system is that it is opposed to the ‘freedom of choice’ implicit in the suggestion in the Issue Paper. A choice afforded to couples could be construed as affording them an opportunity of leaving the fold of Islam or perpetrating a ‘serious act of unbelief’. There are several unanswered questions in the submission of AMAL which, in its thinking, would open Muslims to ‘some form of exploitation, victimisation, exclusion or discrimination now or in the future’. One can glean from its position that before a couple is afforded a choice they would first have to be instructed about their rights and duties to each other, to their children and to the wider society and to this end it envisages the establishment of an Islamic Counselling and Arbitration Service (ICAS). It also proposed that the suggestion in the Issue Paper regarding choice that a marriage contracted under a system of family, personal and succession laws in accordance with the religion of Islam be recognised as per sections 15(3)(a)(i) and (ii) of the Constitution.
3.34 Its response to the suggestion under Recognition of Islamic Marriages can be summarised as follows:
3.35 It submits that setting age barriers ‘is ignoring reality’ which in turn will not curb promiscuity and will instead ‘encourage irresponsibility and a lack of accountability’. By setting such age barriers it expresses the concern tat it will ‘criminalise decent people who are doing nothing but living by their long-established norms and values’.
Actual consent
3.36 Its response to actual consent is that such consent can be ‘verbal or by proxy, and does not have to be in written form’. Consent is usually obtained in the presence of two witnesses and it suggests that this would support the ‘actual consent’ requirement.
3.37 There seem to be no objection to the suggestion for the recognition and designation of Marriage Officers who are entitled to perform Islamic marriages.
Registration of marriages
3.38 It considers such registration as ‘laudable and desirable’ for administrative purposes from even a religion perspective. It proposes that the person overseeing an Islamic marriage should maintain a marriage register on behalf of the state.
3.39 It considers ‘solemnisation’ as an alien concept considering the fact that an Islamic marriage is contractual and not sacramental in nature. It does suggest that the method of ‘solemnisation’ should be that as sanctioned by Islamic law.
3.40 It suggests that ‘details as per Islamic law’ be spelt out rather than referring to the Marriage Act.
3.41 It suggests that Islamic law does provide for a similar principle and that perhaps the definition thereunder be incorporated.
3.42 It made no proposal or counter suggestion, but rather reacted to the ‘subjective statements expressed under the above heads as being premised due to ‘established eurocentric prejudices’.
3.43 Regrettably the remainder of its response contains no proposals and one can conclude that AMAL has adopted an irreconcilable posture to the suggestions as posited in the Issue Paper.
(6) Commission on Gender Equality (CGE)
3.44 The CGE affirms the necessity of recognition of Muslim marriages as a means to bring to an end the hardships endured by many Muslim women and which emanates from non-recognition of Muslim marriages. It believes that the mechanisms to enable this need ‘not be fundamentally divergent from existing South African law and our country’s constitutional and international obligations’. The common thread inherent in its submission is the need to rid South Africa of all forms of unfair discrimination.
3.46 It views the debate not as one between the right to equality and the right to freedom of belief, but rather as one ‘in terms of the divergent routes through which the constitutional framework and religious law approach the issues of equality, human dignity and non-sexism’. In this way the debate is expanded from one of competing rights to one of ‘competing understandings and visions’.
3.47 Its assessment of prevailing perceptions in the Muslim community indicates an alarming lack of awareness amongst the ulama with the result that apart from the KZN and the ‘Transvaal’ chapters thereof none of them were able to make any substantive comments on the document and in fact there was a strong indication that they never examined the document itself.
3.48 In consultation with women’s focus groups, it expressed noteworthy concerns regarding matters of divorce (Talaq) and difficulties faced by women in securing divorce against the refusal by the husband to agree to or to grant her divorce. On the issue of polygyny, whilst women did not support a total ban thereon, the CGE reported that it was felt that it be strictly regulated in terms of the Qur’anic injunction and the ability of the husband to provide for his wives, and that the current accrual system did not take account of the women’s non-financial contributions to a marriage.
3.49 ‘The varying community perspectives on MPL accompanied by the inherent power dynamics make obvious the less than even landscape whereupon MPL functions in South Africa presently’.
3.50 The foregoing quote highlights its standpoint and it is noteworthy that it is opposed to any system which perpetuates male dominance as well as providing legitimacy ‘current discriminatory practices’. It does not define nor does it delineate what these are in any detail apart from its briefest summaries about the concerns expressed by women’s focus groups in Cape Town. It can be safely concluded that it supports any move towards levelling the landscape whereupon MPL functioned.
3.51 In the light of the foregoing its proposals are:
* Speedy amendments must be made to existing legislation to facilitate recognition of Muslim marriages.
* Retrospective recognition of all existing Muslim marriages - both monogamous and polygynous.
* The current property regime applicable to all civil law marriages must be extended to Muslim marriages.
* New Muslim marriages must be conducted according to the civil law (appropriately amended to recognise Muslim marriages duly performed).
* For all new marriages, ‘as default the current property regime applicable to all other civil law marriages be extended to Muslim marriages’.
* Divorce must be processed through a court according to civil law (appropriately amended to recognise Muslim marriages duly performed).
3.52 It recommends that both succession and custody of children born out of the union be treated according to civil law and that in terms of property regimes, there should be a general review of legislation towards ensuring that the value of non-financial contributions to a marriage are also considered.
(7) Women’s Legal Centre (WLC)
3.53 It supports legislative recognition of Muslim marriages as this would have beneficial legal consequences for spouses in areas like proprietary rights and inheritance and maintenance as well as access to justice.
3.54 Regarding the foregoing it submits that Muslim marriages should be registered with the Department of Home Affairs as is the case with marriages contracted in terms of the Marriages Act.
3.55 It provides a useful alternative where parties do not register their marriages. It proposes that the practice in the Recognition of Customary Act 120 of 1998, namely that a default position operates. It advocates that any proposed MPL Marriages Act adopt similar provisions and the effect is that from the date of its promulgation all marriages whether they are registered or not are automatically valid marriages.
3.56 The WLC submits that though the Issue Paper proposes and in fact suggests that couples be accorded the right to choose the marital system ‘which is compatible with their religious belief and the Constitution’ the choices available to couples ‘were not clearly stipulated’ therein. It suggests that, the fact that a Muslim marriage is in the nature of a civil contract which required no written agreement for its validity, parties can still have clauses compatible with their requirements introduced in the form of a written contract and that they be permitted access to an attorney for this purpose.
3.57 It suggests that couples be afforded the choice of -
3.58 It does not agree with the 18 years suggestion as proposed and suggests that the Commission should perhaps consider something along the lines of section 26 of the Marriage Act.
3.59 It suggests that there should be a minimum requirement before someone qualifies as a Muslim marriage officer. It does not elaborate what these requirements should be.
3.60 It suggests that to avoid abuse in the case of polygamous marriages, the Department of Home Affairs register all marriages or alternatively that all marriages registered before an Imam should be forwarded to the Department of Home Affairs which records these marriages.
3.61 It suggests that these be adapted to the MPL context. It makes similar suggestion in respect of the heading ‘prohibition of certain marriages’.
3.62 Under this head it submits that whilst the Issue paper alludes to choices of matrimonial system for existing Muslim marriages, the same does not apply in respect of future marriages entered into after the new statute.
(8) Mr Fanyana Professor Nzuza
3.63 The respondent supports the proposals contained in the Issue Paper. He charges that Islamic marriages are patriarchical as well as polygamous in nature and therefore suggests inclusion of a provision ‘for status and capacity of spouses in the marriage’ which will abolish the patriarchical system ‘as it discriminates against women’. He also suggests that only courts should have the power to confirm dissolution of Islamic marriages by Talaq.
(9) Ittigaadun-Nisaa (IN) and the Women’s Institute for Leadership development and Democracy (WILDD)
3.64 The joint submission of the IN and the WILDD is premised along the thinking behind the necessity of legislating MPL. Its position is that in the absence of legislation Muslims have no recourse when it comes to issues like divorce, marriage, inheritance etc. Legislation enforcing and enacting the principles expounded in the Holy Qur’an will accord Muslim women their rights and security against oppression and injustice.
3.65 More specifically it makes the following submissions:
3.66 It finds the age of 18 acceptable though it feels that a marriageable age is when a person reaches an age of sound judgment.
3.67 It suggests some sort of regulation to govern the appointment as well as qualification of Muslim marriage officers.
3.68 It suggests that before a person embarks on a second or third marriage, he should be required to make a formal and legal declaration of all his assets in order to divide them equitably amongst his wives and offspring in the event of his demise.
3.69 In addition to the above it supports the suggestion (in the Issue Paper) that -
(10) Haroon Yusuf Laher and Faizal Manjoo
3.70 “Our view is that the issue paper seems to expose widely held misconceptions about the nature of Islamic law. No attempt is made to understand the issues at hand through the primary source of Islamic Law, being the Qur’an (the Holy Book of Islam) and Sunnah (which represents the authentic traditions of the Prophet of Islam in what he said, did or agreed to).”
3.71 The foregoing encapsulates the tenor and thinking behind the submission made by Messrs Laher and Manjoo. They reject the Issue Paper in its totality and their contribution in no way engage the proposals or suggestions contained in the Issue Paper as can be read into their conclusion, namely that ‘the Law Commission is respectfully requested to reconsider the issue paper in its totality’.
(11) Advocate R Carloo
3.72 Advocate R Carloo considers it to be unthinkable to reform the Muslim Personal Law. This submission is based on the misperception that it is MPL that is being reformed rather than South African law. She does seem to support the right of parties to choose their matrimonial regime, whether under civil or Islamic law.
(12) Al-ilmu Nur/ Knowledge is light
3.73 This organisation crisply supports the proposals contained in the Issue Paper, except that it totally rejects incorporation of provisions of the Divorce Act 70 of 1979.
(13) Gender Research Project: Centre for Applied Legal Studies
University of the Witwatersrand (GRP)
3.74 The GRP’s submission is premised on the perception that Muslim marriages practice discrimination and the discriminatory position they find themselves under our law. It would like to see the creation ‘of a single, coherent system of marriage in South Africa with full protection for the disadvantaged parties, generally women and children’.
3.75 It supports the various suggestions aimed at improving women’s rights in Muslim marriages, but goes further in holding that -
(13) Dr MNZ Adams
3.76 In a sentence, this submission is against the entire project regarding MPL on the grounds that it lacks the legitimacy of participatory democracy and is seen as a means or ‘a ploy to force something down unsuspecting throats by means of a false legitimacy...’.
(14) Attorney Zehir Omar
3.77 In a sentence, Mr Omar makes just one comment relevant to the ‘permissible age for marriage’. He submits that any legislation ‘intruding upon the Islamic permissible age for marriage and legislation adding pre-requisites to Islamic Talaq (divorce) will violate the provisions of section 9(3) of the Constitution’.
(15) Attorney Mohamed Bham
3.78 He welcomes, in principle, the proposals made by the Commission. He expresses the thought that very careful consideration has to be given to polygamous marriages especially the stringent conditions under Islam when a man takes on more than one wife. Secondly, in his opinion, there is no reason why a woman should not be in the position to institute divorce and there should be adequate protection for both the wife and children after divorce proceedings.
(16) Achmad Majiet
3.79 This contributor makes no submissions but rather attacks the Commission for allegedly being selective in using authority relating to polygamy.
(17) The Law Society of the Cape of Good Hope (LSCGH)
3.80 The LSCGH believes that the recognition of Islamic marriages is an important issue and that there is a need to establish legal certainty about such marriages. It supports the establishment of a law permitting persons of the Muslim faith to choose whether they want to be married in or out of community of property.
3.81 It makes the submission that any proposed legislation ought to provide for new and existing marriages and suggests that, to this end, the provisions of section 2 of the Recognition of Customary Act 120 of 1998 (RCA) should be used as a guideline.
3.82 As regards the Islamic law position that all marriages are out of community of property, it suggests that section 7(2) of the RCA should be used as guideline to incorporate the requirement that unless otherwise specifically agreed by way of contract, it shall be presumed that marriages entered into are in community of property.
3.83 Regarding the age of consent, the LSCGH points out that ‘several international charters provide that the age of consent should be 18 years’. It goes on to add that the fact that Muslims enter into marriage at a much younger age than those of western faiths ‘should be taken into account’.
3.84 It supports the suggestion that provision should be made for the recognition and designation of marriage officers and that they should be ‘regulated by appropriate bodies which require the application of appropriate procedures’.
3.85 Regarding registration of marriages, the LSCGH is of the opinion that Islamic marriages should be registered and brought in line with section 4 of the RCA and it supports the suggestion that an Islamic marriage should comply with certain formalities in relation to time, place and manner of solemnisation ‘appropriately amended to address Islamic law’.
3.86 Regarding the marriage contract, it expressed the view that parties to an Islamic marriage should be able to register an ante-nuptial contract. It went on to say that ‘they should be able to contract into whatever system they prefer’. As regards the suggestion that the contract should also deal with the situation vis-a-vis the husband taking a further spouse, the LSCGH warned that this would be tantamount to a ground of divorce. It suggests that in such an event, a husband should apply to court for the approval of such a contract and suggests that section 7(6) of the RCA should apply.
(18) Advocate Abraham Louw
3.87 Whilst he finds the proposals contained in the Issue Paper ‘in general acceptable and appearing to be in line with constitutional principles’, he suggests that the age of consent should be 21 years.
(19) Potchefstroomse Universiteit vir Christelike Hoër Onderwys (PUC)
3.88 In a lengthy submission, much of which pertains to the locus of MPL within a constitutional democracy, Christa Rautenbach of PUC favours the proposals -
3.89 Regarding polygamous marriages, she is ambivalent. Whilst subscribing to the principle enunciated in Ryland v Edros[13] that ‘it (was) quite inimical to all the values of the new South Africa for one group to impose its values on another’,[14] she feels that there are reasons why polygamy ‘should be treated with suspicion’ namely on the grounds of discrimination against women. She recommends that the parties should not be allowed to conclude new polygamous marriages and doubts whether polygamy would stand the test of constitutionality.
3.90 She recommends that a provision similar to section 4 of the Recognition of Customary Marriages Act be enacted to regulate the consequences of registration of existing monogamous marriages.
(20) Waterval Islamic Institute
3.91 Except for the suggestion -
the WII seems ad idem with the majority of the proposals in the Issue Paper. It has made no adverse or contrary comments regarding the content of the Issue Paper.
(21) Law School of the University of the Witwatersrand
3.92 Dr Elsje Bonthuys of the Law School confined her submissions to issues of custody and guardianship of minor children, suggesting that the Commission does further research and make clear suggestions on certain aspects of the law relating to children.
3.93 She also makes the suggestion that the Commission investigate ways in which issues of maintenance in Islamic law could be accommodated and legislated.
(22) Saber Ahmed Jazbhay
3.94 With minor reservations which in no way detract from the proposals in their totality, the proposals in the Issue Paper were supported.
(23) Islamic Council of South Africa (ICSA)
3.95 This respondent endorsed the submission of Advocate Mohamed reflected below.
(24) Society of Advocates, Natal
3.96 The submission on behalf of the Society of Advocates, Natal, was largely academic but nevertheless made interesting and educative reading.
3.97 The following emerges from the submission:
3.98 The fact that our Constitution creates a unitary and secular state with the ethos towards protecting individual freedom and liberty, makes it ‘technically feasible’ to implement MPL within the Constitutional framework without ‘impugning its (MPL’s) integrity’. It will be amenable, the submission goes on to say, that marriage by way of contract be governed by MPL with formalities and procedures not dissimilar to those of secular law.
3.99 To the extent that legislation is to give effect to the recognition of (both new and existing) Muslims marriages, the proposal is supported.
3.100 In the case of new marriages, it is proposed that any (proposed) legislation should at least provide for -
3.101 Substantially the remainder of the proposals seems to find support in principle subject to this summary.
3.102 It is submitted that in order to deal with Constitutional concerns, any proposed legislation 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.’
3.103 In sum it supports the proposal without reservations on the grounds, inter alia, that it is ‘entirely consistent with the objective of Islamic Law to the institution of polygamy, namely, to reform, restrict and finally to limit it’.
(25) Fathima Sabban and Washiella Mohammed
3.104 They make a suggestion pertaining to custody of children as follows: boys should be cared for by the father from the age of seven years onwards.
(26) Murabitun
3.105 This organisation finds it unacceptable that the Commission’s underlying approach seems to be aimed at ‘pitting Divine Law giving against secular law. It takes ‘strong offence’ that the constitutional law will prevail in the event of there being a conflict between the Shari’ah law and secular law.
3.106 Regarding choice of marriage system, it finds the words ‘and the Constitution’ unacceptable and repugnant and suggest that they be deleted. Essentially it finds every proposal objectionable and therefore unacceptable and recommends that the proposed law not be enacted at all.
(27) Lawyers for Human Rights
Gender Project Co-ordinator
3.107 Many submissions by respondents contained a detailed preface or non-responsive comments reflecting personal or subjective positions without addressing or contributing towards the proposals contained in Issue Paper 15.
3.108 The submission by the LHR is, with respect, no exception. However, the Project Committee does not want to detract in any way from the excellence of the research and the erudite presentation thereof.
3.109 From what could be gathered from the contribution made by the LHR, it supported the proposals contained in the Issue Paper.
(28) Claremont Main Road Mosque (CMRM)
3.110 Very crisply, the CRMM holds the view that any marital regime should be one out of community of property with the accrual system as this would protect ‘housewives’ in terms of the Qur’anic clause on naqfah, which is a system of remuneration in the context of earnings capacity of the husband. It supports the age of consent as proposed to be 18 years as well as the idea regarding marriage officers in the respect that they be regulated or ‘state controlled’.
(29) Islamic Social and Welfare Association ISWA)
3.111 ISWA supported all the proposals and suggested that in the case of polygamy any proposed law should stipulate the narrowly circumscribed circumstances in which a man could marry additional wives.
(30) United Ulama Council of South Africa (UUCSA)
3.112 UUCSA believes that the proposals set out in Issue Paper 15 are practically achievable and can be implemented. It submits, however, that the proposals regarding Talaq are inconsonant with the Shari’ah law because in terms thereof divorce is issued and not obtained. It makes the point that even if the courts do not recognise the fact, the community would treat the parties as divorced. It also points out that the issue of polygamy was not dealt with in accordance with the Shari’ah in the sense that it is not necessary to obtain the consent or the permission of the first wife.
3.113 Its major point of departure seems to be that it is not possible to alter the Shari’ah and that MPL must be enforced ‘in its pure form’. It also believes that recognising MPL in its pure form would not offend any of the provisions of the Constitution.
(31) Muslim Youth Movement of South Africa (MYMSA)
3.114 ‘The SALC Project Committee 59 is commended for its formulation of the Issue Paper 15 on Islamic Marriages and Related matters. The Issue Paper poses interesting and difficult questions that impact on the lives of approximately two million South Africans from diverse backgrounds’.
3.115 The foregoing signals the position of MYMSA which also makes the following submissions:
Choice of marital system
3.116 Whilst it supports the proposal in the Issue Paper, it points out a few problematic areas:
* Since it envisages two systems (MPL and secular law), this allows for ‘slippage’ and in particular whether parties who marry according to civil law could switch to MPL and vice versa. This, it submits, is unclear.
* The proposal does not take into account social pressure that may be brought upon parties to choose MPL ‘because the average person in the street and more particularly people from previously disadvantaged backgrounds, may not be in a position to make an informed choice’.
* There can be no choice if parties are obliged to go to a civil court to dissolve their civil marriage after they have dissolved their Islamic marriage.
Age of consent
3.117 Fundamentally concerned with so called ‘child marriages’, it supports the proposal that 18 years be the age of consent.
3.118 It supports the proposal vis-à-vis actual consent on the basis that in cases of ‘arranged marriages’ consent is often under ‘social pressure’.
3.119 It supports the proposal for the recognition and designation of (Muslim) marriage officers and suggests that -
3.120 It suggests that a formal marriage certificate be made mandatory by law and that section 29A of the Marriage Act be incorporated into any new statue recognising Islamic marriages as well as regarding the time etc of solemnisation.
3.121 The respondent supported the proposals pertaining to –
3.122 The respondent does not support the proposal -
(32) Tshwaranang Legal Advocacy Centre (TLAC) and Nisaa Institute for Women’s Development (NIWD)
3.123 Unlike MYMSA, the TLAC and NIWD supports the dual system (choice of marriage system) set out in the Issue Paper on the grounds that it is important in a constitutional democracy to respect and acknowledge the rights and beliefs of all the people of the country. It recommends that the Qur’anic version of MPL be applied because the Qur’an provides particular safeguards for women.
3.124 It also supports the proposal -
(33) Muslim Judicial Council (MJC)
3.125 The position of the MJC to the proposals is as follows:
3.126 MPL should automatically apply, in its unadulterated form, to Islamic marriages. Just as the Constitution advocates tolerance, it holds the view that Muslims should be guaranteed the right to choose MPL in its unadulterated form. Such MPL should afford full recognition to the ‘Shari’ah Courts’ of the various Muslim Judicial Bodies who should have full power to rule over issues such as maintenance, custody and inheritance issues.
3.127 It supports the proposal with the suggestion that legislation ought to provide for both new and existing marriages especially regarding -
(34) Community Law Centre, Gender Unit and Legal Aid Clinic
University of Western Cape (UWC)
3.128 It supports the proposal in principle on the grounds that it accords with the constitutional right to freedom of religion and belief. It calls for clarification of the property regime that would automatically apply in respect of new marriages where the parties elect to have their marriage regulated by MPL.
3.129 The UWC does not support the proposal that existing marriages should be registered. Instead they should be validated automatically without the necessity of registration. As reason therefore they point to the history of oppression and discrimination which non-recognition of Muslim marriages had suffered in the past at the hands of Judeo-Christian authorities.
Age of consent
3.130 It proposes that legislation regulating Muslim marriages should be brought into line with the current provisions of the Marriage Act regarding the age of consent.
3.131 The UWC supports such a proposal as a measure to protect women from ‘forced marriages’.
3.132 Like MYMSA, the UWC supports the proposal recognising the designation of marriage officers but recommends that provision should be made for the inclusion of women and non-Ulama persons as marriage officers.
3.133 It supports the proposal that the marriage officer should solemnise a marriage as well as that the parties and two competent witnesses should sign the marriage register. It adds that where the parties choose a property regime other than the default or automatic regime, this must be specifically noted at the time the marriage is registered.
3.134 It supports the proposal but strongly recommends that marriage by proxy be done away with and that both parties must be present in person for the conclusion of the marriage. This would bring about more certainty regarding the offer and acceptance.
3.135 It supports this proposal but recommends that express provisions stipulating the permanent or temporary impediments to a valid marriage contract should be (clearly) set out in the legislation.
3.136 It proposes that legislation on Muslim marriages should make no provision for the contracting of new polygamous marriages on the grounds that ‘this practice in its current form violates the constitutional principle of sex and gender equality’.
[12] Enclosed as an Annexure to Issue Paper 15.
[13] 1997 (2) SA 690 (C).
[14] At 707E.
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