CHAPTER 4

ANALYSIS OF RESPONSES IN PRINCIPLE

Rejection of State intervention

4.1 A minority of respondents were opposed to the passing of a law by the State recognising aspects of Muslim Personal Law.^[15] The main reason for opposing state intervention was the fear that Muslim Personal Law faced the danger of contamination, in the sense that its core principles would be altered in the context of a dominant system of secular law, where the Constitution was supreme. There was a clash of values between both systems, with the result that the Islamic law would be subsumed by the dominant secular law, according to this view. The purpose of Islamic Law is to achieve justice and equity, and these concepts are the rationale for all law, including the Constitution.

4.2 Due and careful consideration was given to the concerns expressed. The Project Committee is of the view that the thrust of this objection is met by ensuring that the proposed legislation is consistent with Islamic Law. It is apparent that proposed legislation which accords with Islamic principles would produce substantial benefits and alleviate serious hardships on the ground. Weighed in the balance, the advantages of legal recognition far outweigh any perceived disadvantages consequent upon non-recognition. Take the following simple examples:

4.3 H and W are married according to Islamic Law. The marriage has irretrievably broken down due to substantial misconduct on the part of H. H nevertheless maliciously refuses to issue a Talaq to W. H also refuses to accept the jurisdiction of any Muslim body, with the result that W is precluded from remarrying according to Islamic Law.

4.4 In the same example, assume that, in fact, H issues a Talaq to W but, despite his means, refuses to maintain his wife and minor children born of his marriage, with the result that H is able to evade his Islamic obligations particularly in respect of his wife because he knows that they are unenforceable at law.

4.5 If H issues a Talaq, but, as a consequence thereof, W refuses to allow him access to the minor children born of the marriage, H would experience difficulties in gaining access to his minor children.

4.6 In short, the power of enforcement and legal sanctions will guarantee compliance with and promote Islamic principles of justice and fairness. For the first time in the history of our country, important aspects of Muslim Personal Law will, if the proposals are accepted, assume legal recognition and force, bringing substantial relief.

Alternate dispute resolution: arbitration

4.7 As a consequence of their opposition to direct state intervention, some respondents^[16] suggested arbitration as a vehicle to resolve Muslim Personal Law disputes.

4.8 In their view, arbitration, as a legally enforceable means of adjudication, would ensure that the core principles of Muslim Personal Law would be preserved, and the danger of contamination would be averted.

4.9 The option of arbitration was carefully considered but unfortunately cannot be implemented for a number of reasons. Firstly, all questions of marriage and dissolution of marriage, because they impact upon status, are ultimately adjudicated by the secular courts. Secondly, the court is the upper guardian of minor children. As such, the court must be satisfied that the welfare of minor children is properly safeguarded, and the best that can be effected in the circumstances of a particular case. This is why the Arbitration Act, 1965, excludes matrimonial issues as arbitrable issues.

4.10 This, however, does not preclude parties from adopting mediation and conciliation as an effective means of resolving matrimonial disputes. Mediation as a means of resolving family disputes is enjoined by the Holy Qur’an itself. A settlement arrived at, through the mediation process, may be made an order of Court, thereby avoiding litigation. Muslims are free to establish a proper infrastructure to achieve the resolution of matrimonial disputes through an effective dispute resolution process, thereby avoiding unnecessary and costly litigation.

Choice of proprietary regime

4.11 In the past, many Muslims elected to have the proprietary consequences governing their marriage regulated by the civil law.

4.12 The proposed Bill, whilst providing that every Islamic marriage is a marriage out of community of property, allows Muslim couples to regulate the proprietary consequences of their marriage on a contractual basis consistent with Islamic law.

4.13 It follows that there is no need to resort to the civil law. To this extent, the use of the word “choice” in the Issue Paper was unfortunate and unnecessary. The proposed legislation now provides for a “choice” only in respect of a proprietary regime. This is in accordance with Islamic law.

^[15] For example, the Murabitun held the view that the clash between Islamic Law and secular law (where the Constitution is supreme) was value-based and could not be resolved, hence the status quo should remain in order to avoid interference with the Islamic principles and values. The Murabitun’s submission is dated 29/08/00.

^[16] H Y Laher and F Manjoo, for example, expressed the opinion that there was a conflict between recognising aspects of Muslim Personal Law in its pure form, and the requirements of the Constitution. Hence they suggested that the Arbitration Act, 1965, be amended to allow for the arbitration of matrimonial disputes before a Council of theologians.

SAFLII: | | Terms of Use | Feedback
URL: http://www.saflii.org/za/other/zalc/dp/101/101-CHAPTER-4.html