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CHAPTER 1

INTRODUCTION: THE PROBLEM

1.1 Muslim Personal Law is a substantive and comprehensive system of law. Its core principles are contained in the Holy Qur’an itself, as explained, in practice, through the Prophetic model, known as the Sunnah.^[1]

1.2 Because of its intrinsically divine basis and character, the preservation and effective implementation of this system is integral to, and is at the heart of, the preservation of the community itself, its distinct identity, character and ethos.^[2]

1.3 In the context of a secular state in which Muslims constitute a minority community, the non-recognition by the state of the system of Muslim Personal Law, or aspects thereof, has caused serious hardships and produced grossly unjust consequences.^[3]

1.4 Historically, and until the landmark 1999 Supreme Court of Appeal decision in Amod v Multilateral Motor Vehicle Accidents Fund,^[4] a marriage contracted according to Islamic Law was regarded by our courts as null and void ab initio, as being contrary to public policy, with the result that the marriage and its consequences were not legally recognised in any form.^[5]

1.5 The decision in Amod^[6] recognised a monogamous Islamic marriage for the purposes of support only, the case dealing with a widow’s claim for loss of support suffered by her in the context of the common law dependant’s remedy. The case itself focuses on the urgent need for a comprehensive recognition of aspects of Muslim Personal Law.

1.6 In the result, the current position is that the legislature has still not redressed the gross inequities and hardships arising from the non-recognition of Islamic marriages. The issues requiring attention inter alia are:

• the status of a spouse or spouses in an Islamic marriage or marriages;
• the status of children born of an Islamic marriage;
• the regulation of the termination of an Islamic marriage;
• the difficulties in enforcing maintenance obligations arising from an Islamic marriage;
• the difficulties in enforcing custody of, and access to, minor children;
• the proprietary consequences arising automatically from an Islamic marriage are not recognised at law, and therefore not enforceable.

1.7 Whilst appreciating the urgent and imperative need to redress the gross inequities and hardships through the legal recognition of aspects of Muslim Personal Law within the Constitutional framework, certain respondents have raised a crucial concern:^[7]

Would recognition of the system or aspects thereof be consistent with Islamic Law?

1.8 The Project Committee^[8] in turn wishes to emphasise that it appreciates this concern. It has endeavoured to formulate the proposals contained in this Discussion Paper within the parameters of Islamic Law, and in accordance therewith.

1.9 The Project Committee invites all interested persons, bodies and institutions to make suggestions for improvement and to draw its attention to any shortcomings.

^[1] The first and primary source of Islamic Law is the Holy Qur’an, which is regarded by Muslims as the Word of God (Allah). The second primary source of Islamic Law, which follows the Holy Qur’an in importance is the Sunnah. The Sunnah is an independent source of Islamic Law and may be defined as “a word spoken or an act done or a confirmation given by the Holy Prophet Muhammad”. Muslims are ordered in the Holy Qur’an to obey Allah and his Holy Prophet, both forms of obedience being mandatory in all circumstances. For example, the Holy Qur’an states: “And obey Allah and the Messenger so that you may be blessed” (3:132). See also (4:59), (5:92), (8:1), (8:20), (8:46), (24:54), (47:33), (58:13) and (64:12). The third source of Islamic Law is the consensus of jurists, known as IJMA. The fourth source is known as Qiyas which is a form of analogical deduction based on the Holy Qur’an and Sunnah, to be applied in the specific case where no express text of the Holy Qur’an or Sunnah exists on a particular issue. The Sunnah has been authentically preserved in the form of the Hadith. See generally the authority of Sunnah Justice Mufti Muhammad Taqi Usmani – Idaratul Qur’an, Karachi, Pakistan.

^[2] The main principles governing Muslim Personal Law is expounded by the Holy Qur’an itself in a number of verses. For example, Surah Talaq (being Chapter 65) is devoted primarily to the issues of Talaq, Iddah and maintenance.

^[3] See paragraph 1.6.

^[4] 1999 (4) SA 1319 (SCA).

^[5] The apparent rationale for not recognising Islamic marriages was because they were regarded by our courts as being polygamous. The Appellate Division reaffirmed this in Ismail v Ismail 1983 (1) SA 1006 (AD) when it stated that an Islamic marriage was “contra bonos mores in the wider sense of the phrase ie as being contrary to the accepted customs and usages which are regarded as morally binding upon all members of our society” (at p 1026). This approach may be traced to as early as 1860, being the case of Brown v Fritz Brown’s Executors and Others (1860 3 Searle 313 at 318) which described an Islamic marriage as “recognized concubinage”.

^[6] This case radically departed from previous decisions by recognising a duty of support flowing ex lege, as an incident of a de facto Islamic marriage, as being worthy of legal protection, having regard to the new ethos which prevailed on 25 July 1993 when the cause of action arose. The common law was developed to accommodate the new ethos.

^[7] This concern is premised on the fact that from a Muslim standpoint, any deviation from Islamic Law would amount to a violation of divine law. This, in turn, would negate the very purpose of recognising aspects of Muslim Personal Law.

^[8] See paragraph 2.3 et seq.