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MUSLIM ASSEMBLY
10 April 1995
The
Executive Committee of the Muslim Assembly have resolved that the memorandum
annexed hereto be considered by the Constitutional
Committee in regard to the
need for the retention of Section 14.1, 14.2, 14.3, and the amplification of
Section 14 by the insertion
of a further clause namely 14.4 incorporated in the
memorandum drafted and prepared by advocate Sheriff Mohammed for and on behalf
of the Muslim Assembly.
MOOSA VALLIE ISMAIL
[EXECUTIVE
DIRECTOR]
RE: FURTHER AMENDMENT TO SECTION 14.3 OF THE REPUBLIC
OF
SOUTH AFRICA, ACT 200 OF 1993
Our organization for reasons set out in the memorandum enclosed
herewith, demand that Section 14.1 and 14.2 be retained and that 14.3
be
amended.
URGENT STEPS TO BE TAKEN
FOR THE RECOGNITION
AND IMPLEMENTATION OF
ISLAMIC PERSONAL AND FAMILY LAW
AND
THE CREATION OF ISLAMIC (SHARIA) COURTS
AND
THE RETENTION OF SECTION 14.1,14.2 AND
14.3
(SUBJECT TO FURTHER AMENDMENTS)
OF THE CONSTITUTION OF
THE REPUBLIC
OF SOUTH AFRICA, 1993 ACT 200 OF 1993,
AS
AMENDED BY ACT 2 OF 1994
AND ACT 13 OF 1994
A. INTRODUCTION
(a) The Right of Muslims to regulate
their lives in terms of their own legal system
In many states in
Africa and Asia, for practical reasons the customary laws of inhabitants are
recognised, as most of the indigenous
African peoples were not accustomed to the
western imported culture which were alien to them, as they could not adapt
themselves
to the norms and values of westernised laws. The colonial powers, in
any event, did not have the necessary finances to impose their
legal systems on
the local inhabitants. Anthropologists and certain legal jurists realise that
Customary Law must be permanently
recognised as such laws form part of the
particular community's culture. It would seem that there is an ever increasing
realisation
by governments and jurists throughout the world that in a culturally
heterogenous community the culture of every group including
their legal systems
must be recognised.
(b) It was during the time of the Colonialist that,
in many Muslim countries, Islamic Law was tampered with beyond recognition,
confining
the Sharia to the domain of Private Law, whilst ignoring other facets
of Islamic Law such as International, Constitutional, Criminal
and Commercial
Law. The United Nations Commission for Human Rights issued a Draft Declaration
on the rights of indigenous people,
which declared that minority groups in a
state possess the following rights:
"The collective right to exist as
distinct peoples ... The right to promote their cultural Identity and traditions
... The right to
develop and promote their own languages ... and to use them for
administrative, juridical, cultural and other purposes ... The right
of children
to have access to education in their own languages ... and to establish their
own educational systems and Institutions:
(E/CN. 4 Sub.
2/1989/33).
(c) The situation where legal systems
clash
In South Africa certain tribes such as the Xhosas, Pondo,
Venda and Zulus have their own legal systems which have been legally recognised
by the Nationalist Government and its predecessors, as early as the 18th Century
and were given powers by the creation of courts
which were specially constituted
to give effect to the customary laws of such tribes. The concept of legal
pluralism, inevitably
results in a conflict of legal systems thus necessitating
a set of rules in order to regulate the conflict.
(d) From an Islamic
perspective the rights of Muslims to practice their own Islamic Legal System is
a fundamental right and not a
privilege and ought to be recognised by the
incorporating of such rights in a Bill of Rights and Constitution. In a
separate Act
perhaps to be called an Islamic Administration Act, rules can be
laid down as to what is to happen if the general law of the land,
including
customary laws and religious laws of other groups and tribes come into conflict
with the Islamic Legal System. In this
manner the ruling government will be
recognising the Islamic Legal System of the Muslims by allowing Muslims to
adjudicate Islamic
Personal and Family Law in Islamic Courts which must be built
and financed from government taxes.
(e) The Right of Muslims to
choose the Legal System that must regulate their private
lives
Muslims must accept that the unqualified recognition of
Islamic Law will lead to conflict with other legal systems which will lead
to
chaos in the land. There is the general law of the country that caters mainly
for the aspirations of the Whites and so-called
Coloureds with their western
orientated culture and legal system. The Legal System is based chiefly on the
Roman Dutch Law, English
Law and some remnants of the laws stemming from the
Roman Empire which are still presently engrafted on our legal system, apart from
statutes, ordinances, regulations and case law. The South African Legal System
is presently a hybrid one.
(f) The South African Legal System and
the accommodation and application of African Customary Law
The
South African Legal System has accommodated in certain respects the particular
legal system of the other African cultural groups
(presently Muslims being
excluded). South African legislation recognises African Law and customs in
certain respects. See Black
Administration Act 38 of 1927 - Section 12(1) gives
the Minister the power to appoint a Black Chief or Headman to determine civil
claims arising out of Black Law and customs and brought before him by Black
against Black residing within the area of jurisdiction.
South African Law also
recognises the customary marriages of the aforesaid African tribes for the
purposes of pensions, taxes, maintenance,
housing and the delictual claims in
respect of the unlawful death of a breadwinner. In terms of Section 1 1 (1) of
the Black Administration
Act 1927, the South African Government catered for
African Customary Law by providing the following:
"Notwithstanding the
provisions of any other law, it shall be in the discretion of Commissioners'
Courts in all suits or proceedings
between Blacks involving questions of customs
followed by Blacks, to decide such questions according to the Black Law applying
to
such customs except in so far as it shall have been repealed or modified:
provided that such Black Law shall not be opposed to the
principles of public
policy or natural justice: provided further that it shall not be unlawful for
any Court to declare that the
custom of Lobolo or Bogadi or other similar custom
is repugnant to such principles".
(g) Discrimination against
Muslims in South Africa
A Muslim wife, were she to contract a
marriage with her husband only in terms of Islamic canon law and were her
husband subsequently
to die in an accident involving an insured motor vehicle
whose driver was clearly negligent, would in these circumstances be denied
the
right to institute a third party claim, for loss of support, against the
authorised insurers of the aforesaid vehicle. She has
also been denied the
right on the dissolution of the marriage contracted by Islamic Law or even
during the subsistence thereof to
legally claim maintenance from her husband and
has to go through the humiliation of seeking redress in a secular court in order
to
pursue a maintenance claim for the children. If a Muslim gets married in
terms of South African Law, the proprietary consequence
on the dissolution of
such union is that both spouses must share equally in the joint estate, whilst
in terms of Islamic Law, the
parties are deemed to be married out of community
of property. According to South African Law, Muslim marriages are regarded as
inherently polygamous and contrary to public policy. This is clear
discrimination and arrogance on the part of the authorities in
not recognising
Muslim marriages for the truth of the matter is that monogamy is the ideal in
Islam and polygamy the exception.
Muslim adult males can only, in terms of
Islamic Law, take a second wife on certain recognised grounds. In any event the
Islamic
system is more just and equitable as a man is liable to maintain his
wives and children born out of the relationship with such wives.
Furthermore,
children born out of such unions are stigmatised as being illegitimate. In the
western system a man may not take a
second wife and children born from a second
wife are deemed to be "bastards" with the consequent disadvantages flowing from
such
conduct. It is clear that the former South African Government was either
prejudiced against the Muslims or was totally ignorant
about the principles and
procedure of Islamic Law more in particular personal and family law, by not
recognizing certain facets of
the Islamic Legal System. After all Muslims
regard Divine Law as having superior force to man made laws.
See the
following verses from the Quran:
"Discretion lies only with
God"
Livestock 6: 57
"Surely creation and authority
belong to Him"
The Heights 7: 54
"No believing man nor
any believing woman should exercise any choice In their affair once God and His
Messenger have decided upon
some matter. Anyone who disobeys God and His
Messenger has wandered off into manifest error."
The Confederates 33:
36
"David we have placed you as an overlord on Earth, so judge
among men correctly and do not follow any whims which will lead you away
from
God's path.”
(The Letter) Sad 38: 26
"Heed God and
obey me; do not obey the order of extravagant people who corrupt (things) on
earth and never reform."
Poets 26: 150-152
"So judge
among them according to what God has sent down, do not follow their
whims."
The Table 5: 49
(h) As regards
Custodian Rights of the parties to a marriage contracted In terms of Islamic
Law
In the event of a divorce, or estrangement between the
parties to a marriage solemnised in terms of Islamic Law, the father of a child
has been deprived of custodian rights and is precluded from claiming any
custodian rights or rights of reasonable access to such
child in terms of South
African Law. The Supreme Court has consistently followed certain principles
emanating from Roman Dutch Law,
which regards such a child as illegitimate on
the principle that "een moeder maak geen bastard nie". The result is that were
the
mother to decide to change the religion of the young child, or has seriously
neglected her child, the father has no legal remedy,
even if he can prove that
it is in the paramount interest of the child that he be awarded custody of the
child. Despite having complied
with the formalities of Islamic Canon Law, as
such union had been duly witnessed and celebrated in the eyes of the public,
nevertheless
such a father is regarded in the eyes of the Secular Law, as a
stranger viz a viz his child. This is a situation which can no longer
be
tolerated and South African Muslims insist that all matters relating to Muslim
Family and Personal Law be adjudicated in properly
constituted Islamic Courts.
The only remedy open to such a parent is to endeavour to have such child
declared a child in need of
care and then like any outsider attempt to legally
adopt such child. The danger however exist that even if the child's mother is
declared not a fit and proper person, she can still defeat her husband's
custodian rights by stating that her own mother or aunt
or sister has assumed
the responsibility of looking after such child, as a parentis in loco. It is
ironic that the mother of the
child in terms of South Africa law is precluded
from claiming maintenance from the child's paternal
grandfather.
See: Moutan v Joosub 1930 AD p61 at p70 in which Wessels, J
A
analyzed a number of Roman Dutch texts and concluded that Roman Dutch
Law did not place any duty on the paternal grandfather to maintain
his son's
illegitimate child.
As stated earlier such a child is in terms of Islamic
Shari'ah legitimate because the parents have validly entered into a marriage
ceremony in terms of Islamic Law.
AS REGARDS THE PROPRIETARY
CONSEQUENCES OF A MARRIAGE CONCLUDED AND TERMINATED IN TERMS OF MUSLIM
LAW:
As regards the proprietary consequences of a marriage contracted
in terms of Islamic Law, a Muslim woman cannot enforce such consequences
in a
Secular Court. In the case of Ismail v Ismail 1983
(1) SA 1006 (A) the
facts were as follows:
"The parties marriage were celebrated and
terminated according to the tenets and customs of the Muslim faith. The
Appellant (Plaintiff)
claimed payment and arrear maintenance as well as
maintenance for a specified period after termination of the marriage, delivery
of a deferred dowry, and delivery or payment of the value of two sets of jewelry
which the Respondent had given to her, but which
she had returned to him for
safe keeping."
Trengove J A, after dismissing the appeal said the
following:
"Having considered the arguments presented on Plaintiff's
behalf, I have come to the conclusion that we would not be justified in
deviating from the long line of decisions in which our courts have consistently
refused, on grounds of public policy, to recognise,
or to give effect to the
consequences of, polygamous unions contracted In South Africa, statutory
exceptions apart. The concept
of marriage as a monogamous union is firmly
entrenched in our society and the recognition of polygamy would, undoubtedly,
tend to
prejudice or undermine the status of marriage as we know it; and from a
purely practical point of view it would, in my view, also
be unwise to accord
recognition to polygamous unions for the simple reason that all our marriage and
family laws - and to some extent
also our law of succession - are primarily
designed for a monogamous relationship ... Furthermore, in view of the growing
trend
In favour of the recognition of complete equality between marriage
partners, the recognition of polygamous unions solemnized under
the tenets of
the Muslim faith may even be regarded as a retrograde step; ex facie the
pleadings, a Muslim wife does not participate
In the marriage ceremony; and
while her husband has the right to terminate their marriage unilaterally by
simply issuing three 'talaaq'
without having to show good cause, the wife can
obtain an annulment of the marriage only if she can satisfy the Moulana (a
high-ranking
ecclesiastical office-bearer of the Muslim creed) that her husband
has been guilty of misconduct. While this may be consistent with
the tenets of
the Muslim faith, it Is entirely foreign to our notion of a conjugal
relationship. I also mention, in passing, that
it seems unlikely that the
non-recognition of polygamous unions will cause any real hardship to the members
of the Muslim community,
except, perhaps, In Isolated instances. According to
the pleading's, only about 2 % of all Muslim males In south African have more
than one wife. This means that approximately 98 % of all Muslim males have
either contracted valid civil marriages or de facto monogamous
unions. And, in
the case of the latter the parties have, for many years, had the right to
convert their de facto monogamous unions
into de jure monogamous unions. They
had the option of doing so under the Indians Relief Act 22 of 1914 (which was
repealed by the
General Law Amendment 57 of 1957) and they can still do so by
entering into valid civil marriages under Act 25 of 1961. In the result,
I have
come to the conclusion that the polygamous union between the parties in the
Instant case must be regarded as void on the grounds
of public
policy."
From the aforesaid judgment it's clear that the learned
judge is applying principles of Roman Dutch Law upon the legal system,
regulating
the lives of Muslims. It appears further from the judgment that the
learned judge seems to have been misinformed as regards the
criteria to be
applied before a husband and a wife can obtain a decree of divorce in terms of
Islamic Law.
As stated earlier, monogamy is the ideal in Islam and
polygamy is the exception, and that a man can enter into a second, third, or
fourth marriage only in certain recognised instances. Islamic Law does not
permit a husband to unilaterally divorce his wife by
simply issuing three
"talaaqs". As the judge said "without having to show good cause". In terms of
Islamic Law, a husband cannot
simply divorce his wife according to his whims and
fancy.
The misconception some people regarding Islamic Law, and more
particularly, Islamic Personal and Family law, must be eradicated.
The time is
ripe for the legitimate aspirations of Muslims of South Africa to be satisfied
by the recognition of Islamic Personal
and Family Law; and the creation of the
means for its implementation.
(i) Certain aspects of the Law of
Succession pertaining to Muslims in South Africa
The laws of
inheritance also prejudicially affect Muslims in South Africa. Muslim marriages
are not recognised unless the Sheik/imam
had been appointed as a marriage
officer in terms of the Marriage Act. Hence the Supreme Court had to come to
the rescue of a child
who could not inherit because his/her father had died
without a will. Our courts sought refuge in canon law in order to ameliorate
the harsh consequences that would have ensued, as such a child would have been
deprived of his/her lawful right to inherit from his
father's estate.
In
the case of Moola & Other v Aulsbrook NO & Others 1983 (1) SA (N) Judge
Friedman J, held that ft was never the intention
of the parties to a marriage
solemnised by a Sheik/lmam in terms of canon law to procreate illegitimate
children. At Page 693 paragraphs
G-H the learned judge said the
following:
"The concept of a putative marriage was one which to my
mind, originated not only as a device to mitigate the harshness and annulment
to
an Innocent spouse but also, and more particularly, to mitigate the harshness of
that annulment to children born of the union.
Until the union is Invalid, it is
their Intention, in procreating children, to procreate legitimate children; or
where only one
of the parties is Ignorant of the defect in the union, that at
any rate is his or her Intention. The concept of putative marriage
is designed
to preserve that intention and to permit the children who, after all, were
entirely innocent in the matter, to benefit
from It."
See also Ex
Part Azar 1932 OPD 107, The Supreme Court held that children of a marriage
contracted by the Archimandrite of the Greek Orthodox Church, not being a duly
appointed marriage officer, was legitimate upon the basis that they were
children of a putative marriage.
See also Ex Part L 1947 (3) SA 50 (C),
ft was held that a marriage solemnised by a Rabbi presiding at the particular
synagogue and being a marriage officer was a putative
marriage and the children
stemming from the marriage were therefore legitimate
It is thus clear that
canon law has been engrafted into our legal system. In this regard I quote from
a judgment by Judge Friedman
J in the case of Moola & Others v Aulsebrook No
& Others supra p691:
"The requirements that the union must have
been contracted 'palam et solemniter' or 'rite et soiemniter secundum morem
patriae' is
more easily understood when one appreciates the background against
which the concept of putative marriages developed. As I have
said, the concept
was a product of canon law. Consequently It applied only to unions contracted
'In facie ecciesiae with all due
solemnities and after publication of banns'.
The canon law had no application to what It regarded as clandestine marriages.
In
these circumstances, by its very nature, the concept of a putative marriage
could only apply to those unions which, although formally
correct, were invalid
by reason of a defect of capacity, eg. marriages within the prohibited degree,
bigamous marriages, etc. Once,
however, the canon law principle was taken over
by the courts of Holland as part of the legal system of Holland and, more
particularly,
once the principle is accepted as being part of the
law."
Accordingly, the concept of a putative marriage was designed to
mitigate the devastating consequences that would have resulted if
an heir were
to be denied the right to inherit from his or her father's estate where the
father has died intestate on the basis that
such a child had been born
illegitimate.
(j) Statutes affecting Muslim Personal
Law
The following are some of the statutes while needs urgent
scrutiny and review as some of these statutes impinge upon Islamic Personal
and
Family Law:
Intestate Succession Act No 81 of
1987;
Criminal Procedure Act No 51 of 1977;
The
Divorce Act 70 of 1979;
Maintenance Act 23 of
1963;
Matrimonial Affairs Act 37 of 1953;
The Child
Care Act 74 of 1983;
Adoption of Children Act 25 of
1923;
Succession Act 130 of 1934;
Multi-Lateral
Motor Vehicle Accidents Act of 1969;
Republic of South Africa
Constitutional Act 1961;
Will Act 7 of 1953;
Matrimonial
Property Act no 88 of 1984.
(k) Legal contracts concluded
between Muslims
Muslims ought to be given the right to exercise a
choice as to whether contractual and delictual disputes ought to be determined
in
Islamic Courts. In this regard Muslims can insert a clause in a contractual
agreement that in the event of a breach of any terms
of a contract that the
dispute be resolved before an Islamic Court, or by consent of the parties the
dispute be referred to an Islamic
Court of Arbitration, as the Islamic System
has its own rules of evidence and procedure.
(l) The
Implementation of Islamic Penal Law:
A Muslim ought to be given a
choice whether to be tried by a secular or Islamic court, in regard to certain
criminal offenses. The
parties affected must naturally be Muslims and will have
to consent to the jurisdiction of a Sharia Court, and as in a civil dispute
must
be given the right to appeal to a superior court, consisting of Islamic judges
and thereafter to the Supreme Court.
We annex an article by Kerr SC,
entitled "Recognition and Application of Systems of Law in a Charter of
Fundamental Rights.
It is our prayer that with wisdom, courage and the
determination to achieve the above objective, and with the backing of the
majority
of Muslims, in this country, that the aforesaid proposal and demands be
seriously considered by the constitutional committees engaged
in the drafting of
the final constitution and to achieve that objective the provision of 14.1, 14.2
and 14.3 in the interim constitution
be retained in the final constitution,
subject to Section 14 being amended further with proposed amendment set out
hereunder:.
"14.4 Every person shall have the right to the recognition
and application of systems of law in accordance with the following
provisions:
(a) South African Law, including its rules on conflicts of
law, shall be the general law.
(b) The law of religious groups including
tribunals shall be recognised and applied in accordance with choice of law rules
relating
thereto.
(c) Judicial notice shall be taken of the systems of
law referred to in sub-sections (a) and (b) above.
(d) All legal
disputes, other than those settled out of court, shall be settled by a court of
law, whether in the first instance or
on appeal or review."
B.
CONCLUSION
We accordingly demand:
(a) That the right of
Muslims in certain spheres to practise and implement Islamic Personal and Family
Law be entrenched in the final
constitution.
(b) That a Commission of
Islamic experts be appointed at state expense in order to investigate and
recommend how best the aforesaid
legitimate proposals can be
implemented.
(c) We annex a document entitled "Muslim Personal
Law in South Africa. A Brief History."
May the Master of the Day of
Judgment guide and protect all the inhabitants of this land who are trying to
tread in the path of righteousness.
PREPARED BY ADVOCATE SHERIFF,
MOHAMED
Muslim Personal Law (MPL) in South Africa:
A Brief History
1652-1795
Limited recognition of Muslim family law and succession
under the Commander's Court of Dutch East India Company.
1807
Taun
Guru's son teaches Muslim Law (fiqh) in the Cape. 1906
Mahatma Gandhi
initiates passive resistance campaign amongst Indians in Natal against
government's attitude towards customary Indian
marriages -Hindu and
Muslim.
1907
J de V Roos writes on Muslim Personal Law in the context
of South African
Law. 1942
Shaykh Abd al-Rahim ibn Muhammad al-lraqi,
early South African writer who probed into marriage and divorce
issues.
-+1977
Application by the Institute of Islamic Shari'ah
Studies in Cape Town to the late Prime Minister BJ Vorster to recognise Muslim
family
law.
- + 1980's
Parliamentary move to promulgate
legislation affecting Muslim family law. This was an attempt to propose a
private members' bill
by Mr PT Poovalingham MP (House of
Delegates).
1984
Human Science Research Council Section for
Political Science Research, Research Project - Muslim Law, Ref. no 3/10/121.
Submissions
were made by Advocate AB Mohamed of the Islamic Council of South
Africa, presently President De Klerk's advisor on Muslim
affairs.
1987
South African Law Commission solicited public
opinion on MPL and forms an MPL Committee, consisting of the Muslim Judicial
Council,
Jamiat Ulama of Transvaal and Natal.
1988
Rand Afrikaans
University Conference on MPL.
1992
Council of Muslim
Theologians in South Africa (Jamiat: Transvaal & Natal) and Dr RAM Saloojee
of Islamic Council of South Africa
submit memoranda to Codesa 2 on basic needs
of the Muslim community.
1993
Muslim Personal Law and Gender symposium
held in Cape Town. 1994
University of South Africa plans international
conference on Islam and Civil Society in South Africa: 300 Years. Leading South
African
constitutional and MPL scholars to address the
conference.
1993
Personal Law in South Africa, a brief history by
Advocate Sheriff Mohamed and Sulaiman Bayat despatched to Mr Theuns
Eloff,
Head of Administration: Multi Party
Negotiations Council, World Trade Centre, Kempton Park.
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