Status of Muslim marriages under the spotlight in Western Cape High Court

“The WLC is not properly before the court. It is comparable to my pet cat Roshan appearing before the court,” said an animated Advocate Zehir Omar, appearing before Judge Siraj Desai.

Omar’s remarks were made during his attempt at submitting as intervening applicants his clients, the Lajnatun Nisaa-Il Muslimaat (the Association of Muslim Women of South Africa), which had just over 1,000 members, and the United Ulama Council of South Africa (UCSA).

The UCSA has the same name as another body already admitted as a friend of court.

On Tuesday, Desai heard arguments from the WLC, the State, and other interested parties such as South African Lawyers for Change, the Commission for Gender Equality, and the other UCSA – which Omar called “bogus” – on whether the law’s failure to recognise Muslim marriages discriminated against women.

When the main proceedings begin in May 2016, the WLC is expected to ask the court to compel government to pass legislation that would give Muslim marriages legal status.

In comparing WLC’s legal standing with that of his cat, Omar looked to discredit the WLC’s involvement in the case.

According to Omar, it contravened the WLC’s constitution. He alleged the case being brought was discriminatory in that it only targetted Islam despite there being gender-related issues in other religions.

He added that the entire hearing was an an attempt to discredit Islam: “The motive is to undermine Islam. Their aim is to erode away the teachings of the Quran and Sharia.”

Muslim marriages are not recognised in South African courts, unlike those under civil or African customary law.

Hoodah Abrahams-Fayker, an attorney at WLC said earlier in November that “when civil or customary marriages break down, the law steps in to ensure fairness between the spouses and to protect the rights of the children. This is not the case in respect of Muslim marriages”.

If passed, the Bill would enable the courts to enforce commitments made under Sharia law.

Omar, however, believed that it was in fact Sharia law that protected Muslim women: “Under Islamic law, the man is obligated to maintain the ex wife for the period of Iddah [three months after the divorce],” said Omar. “In South African law, after the divorce, it is finished. Boom! Klaar!”

“Islamic law is far more comprehensive in protecting women,” he said.

Omar also rubbished claims made about courts siding with married Muslim men.

He said that if the Bill was passed, it would make the Constitution supreme, something which could not be tolerated.

“We can never say the Quran must surrender to the Constitution,” said Omar.

Ruling on Omar’s application on behalf of the Association of Muslim Women of South Africa and UCSA was postponed until February 5, 2016.

ANA

File photo: Gallo Images