Government to appeal decision on Muslim marriages

Source: SA Gov News, 22/10/2018

Government has taken a decision to appeal the judgment handed down by
the Western Cape High Court on Muslim marriages.
The case was brought by the Women’s Legal Centre (WLC) and Ruwayda Esau.
The WLC had argued that by not recognising Muslim marriages under
common law, the law ignored the reality that women often lack
bargaining power in marriages and were not afforded legal protection.
The judgment, which was handed down on 31 August 2018, ordered the
executive and Parliament to pass legislation providing for the
recognition and dissolution of marriages concluded in terms of Islamic
Law.
In the ruling, the full bench gave government two years within which
to enact such legislation.
In the absence of this legislation being passed, the full bench has
crafted an order which will then regulate the recognition and
dissolution of marriages concluded in terms of Islamic Law.
On Friday, the Justice Department announced that a decision was taken
to appeal the judgment following consultation between the President,
the Ministry of Justice and other members of the executive.
The decision to appeal was taken for three primary reasons.
“First, Mrs R Esau has lodged an appeal with the Constitutional Court
because the full bench did not give her immediate relief in a marriage
that has already been dissolved in terms of Islamic Law. The Women’s
Legal Centre has not lodged a similar appeal,” said Department of
Justice spokesperson, Mukoni Ratshitanga.
Second, the full bench decision has acknowledged that government is
already in the process of researching an omnibus law that will deal
with the recognition and dissolution of all religious marriages.
“Despite acknowledging this, the full bench has nevertheless ordered
the executive and parliament to enact and pass legislation dealing
with marriages under Islamic Law and to do so within a specific
period,” said Ratshitanga.
The third reason, is the effect that the decision has immediate
implications on all other religious marriages which have not been
registered as secular marriages in terms of the Marriage Act.
“In short, the judgment impacts beyond the sphere of marriages
concluded under Islamic Law. For these primary reasons, the President
and the Minister of Justice have taken a decision to appeal the
judgment of the full bench.
“They will do so upon the basis that they remain committed to complete
the process that they have already commenced, and that is, to pass one
law governing all religious marriages,” said Ratshitanga.
According to Ratshitanga, an appeal court decision will also bring
certainty on certain fundamental constitutional principles, such as:
• the separation of powers and the extent to which courts may order
government to pass legislation and to do so on a specific issue;
• the issue of inequality and discrimination of women generally and
particularly those in religious marriages which have not been
registered as secular marriages; and
• the permissible powers of the executive, and in turn, the
legislature, in fulfilling their constitutional role in our democracy
by determining how best to address such matters.
“For these reasons, the President and the Minister of Justice will
shortly deliver an appeal against the full bench decision in both
matters and will oppose the appeal of Mrs R Essau,” said Ratshitanga.
- SAnews.gov.za