AL JAMA-AH ‘S RESPONSE TO THE SUBMISSIONS OF THE LEGAL RESOURCES CENTRE
AL JAMA-AH IS OUTRAGED BY THE SUBMISSION
The Submissions made to the Minister of Justice & Constitutional Development by
the Legal Resources Centre are extremely deficient from the Islamic perspective. However, the LRC’s submissions provide the Minister with more than adequate cause to scrap the Bill.
1. The Definition Section
Regarding the definitions, the LRC touches on only two terms: ‘Muslim’ ad ‘Talaaq’, while this section deals with a host of definitions which are Islamically unsound, ambiguous and even misleading. The LRC states: “The definition of ‘Muslim’ should not be included in the Act in its present form.” It then proceeds to suggest another definition.
Regardless of any definition accepted by MMB, there will always be Muslims who will claim that they are not ‘Muslim’ in the meaning of MMB. There can never be a completely comprehensive definition which will embrace each and every sect which professes to be followers of Islam.
Furthermore, even if a person accepts that he is a Muslim in the meaning of MMB’s definition, he/she can contend that the consequences of being a Muslim as expounded in MMB do not apply to him/her. For example, in terms of his belief the procedure of Talaaq or of marriage, etc. explained in MMB, is invalid. Obviously freedom of belief is his/her constitutional right which MMB cannot deny or rescind on the basis of him being a Muslim.
Regarding Talaaq, the LRC conspicuously omits any reference to its unconstitutionality. The Islamic concept of Talaaq is ‘discriminatory’ against women in terms of the Constitution, for the right of Talaaq is vested in only the husband. The wife does not have the right of Talaaq.
The LRC is also silent regarding the consequences of Talaaq. These consequences are also unconstitutional in that one of the consequences of Talaaq is the Iddah which is the mandatory period which could vary from a couple of months to even years. The Iddah is imposed on only women. There is no Iddah period for the man.
Another unconstitutional consequence of Talaaq is that the divorcee/widow is confined to the home environment from which she may not emerge without valid reason. But this provision does not apply to males.
A third consequence of Talaaq is that the woman may not marry during the subsistence of the Iddah while the man is free to marry immediately after divorce.
The silence of the LRC is strange.
2. Application of the Bill
The LRC states: “The Bill appears to only regulate marriages of individuals who opt to be bound by its provisions. ….The direct implication of optional registration means that the rights in the Bill will only be enjoyed by some spouses in Muslim marriages.”
The LRC has surprisingly overlooked two unconstitutional factors regarding the application of the Bill:
(i) Compulsory registration would have been glaringly in conflict with the Constitution since it would be, not only be tantamount to, but direct discrimination on the basis of religion. If Mr. John, a non-Muslim, cannot be compelled to register , what gives the state the right to impose registration on Zaid, a Muslim? The differentiating factor pertaining to optional and compulsory registration relevant to a Muslim and a non-Muslim is nothing but religion. But this is blatant discrimination in terms of the Constitution. Thus, compulsory registration may not be entertained in any way whatsoever.
(ii) The Bill in Section 2 (2) makes provision for compulsory registration by default. If Muslims fail to “jointly elect, in the prescribed manner, not to be bound by the provisions” of MMB, they will automatically be registered. That the Minister and his legal advisors having failed to appreciate this provision’s gross conflict with the Constitution is indeed mind boggling. There is no law nor any precept or provision of the Constitution which requires or obliges a Muslim to “jointly elect” in any form of any prescribed manner “not to be bound” by MMB, and failing to do so penalizes him/her with automatic and compulsory registration by default. When nothing obliges a non-Muslim to opt out, then likewise nothing in law obliges Muslims to opt out. This provision is doomed to immediate recision in the very first constitutional attack it is submitted to.
The LRC then makes a surprising, in fact irrational observation. It avers: “Unfortunately in most cases where spouses opt not to be bound by the Bill, women and children from these marriages will bear the brunt of not enjoying these rights. The discretionary nature of the Bill would therefore be prejudicial to them”
As mentioned above, it is just not possible constitutionally to cloak the Bill with a compulsory nature.
It is most surprising for an entity such as the LRC to adopt a patriarchal stance vis-à-vis Muslim women. On the assumption of Muslim women who voluntarily opt not to be bound by MMB being deprived of the ‘enjoying the rights of the Bill’, what right does anyone have to resort to patriarchy for conferring such ‘rights’ to them? If Muslim parties of their own willing accord reject the Bill and elect not to be bound by its provisions, what gives any one the right to compulsorily impose on them this provision?
Furthermore, what are the so-called ‘rights’ which women and children can enjoy under the Bill, which they can not enjoy without the Bill? Consider the following rights:
* Maintenance: According to MMB, the divorced wife is entitled to maintenance during the subsistence of the Iddah period. This in fact is the right of the divorcee even without MMB, and this right is invariably fulfilled by almost every ex-husband. Just as there are recalcitrant men in all communities, so too are there in the Muslim community. Whatever provision the current laws have for recalcitrant men who fail to fulfil their obligations, is even today, without MMB, enjoyed by Muslim divorcees. MMB has therefore not provided any additional right to Muslim divorcees or widows regarding maintenance.
Another very important aspect in this regard is that Islamic maintenance for divorced women is lesser in monetary value and also in the time period than what the civil Maintenance Act grants women. The Maintenance Act bestows more ‘rights’ to women than the Shariah. Muslim males, therefore do not refuse to abide by the religious law, for they know that failure to do so will culminate in the woman instituting legal action in terms of the civil law, and this is vastly disadvantageous for men. They, therefore, wholeheartedly will fulfil their religious obligations.
* Custody: While the Bill will grant females custody of minors in terms of civil law to which the relevant MMB provisions are hitched, such extra ‘right’ will be in conflict with the Shariah. The Shariah has its own rules pertaining to custody of minors. Overriding the Shariah’s provisions in this respect is an example of the transmogrification of the Shariah which is embodied in MMB.
Of significance is the fact that the above mentioned ‘extra’ right which MMB bestows to women is available to them today without MMB. While MMB emasculates the right of maintenance which women today enjoy, by encumbering the present civil right with the Iddah stipulation, it (MMB) eviscerates the Shariah’s law pertaining to custody of minors, and it does so in the name of the Shariah by dubbing the Bill with the misnomer “Muslim” Marriages Bill.
The LRC states: “The rationale behind the discretion is not clear and neither is it clear what happens to marriages where both spouses do not agree to register the marriage.”
Since MMB is fusion of civil law with Islamic religious Law, its transmogrified provisions lack rationale. The lack of clarity alluded to by the LRC is due to its lack of having comprehended the law. If a marriage is not registered under the civil Marriages Act nor under MMB, there is then no conundrum. Such an Islamic Marriage will simply not be recognized. We shall be in the same position as we are now minus MMB.
MMB is simply an unconstitutional, extension of the Marriages Act. It is a glorified amendment of the Marriages Act portrayed as a Shariah-compliant Act which in reality it is not. The status of pure Islamic marriages in the apartheid era, in the post apartheid era and after enactment of MMB is precisely the same. In other words, Islamic Marriages per se are not recognized and the offspring of such holy marriages will always be regarded illegitimate as long as the government is unable to cast off the shackles of its apartheid legacy.
Yet, there is absolutely no insurmountable barrier for conferring recognition on Islamic marriages per se without the imbroglio of MMB. In fact, the courts have already recognized even Islamic polygynous marriages for purposes of consequences. What then precludes the government from effecting a simple amendment to the current Marriages Act to insert a clause of recognition?
All those who are clamouring for recognition of Islamic Marriages fail to understand that recognition under MMB is not recognition of the Islamic Nikah – it is not recognition of Islamic Marriages per se. It is in reality recognition of a civil marriage, albeit in another form slightly different from the recognition offered by the current Marriages Act.
The LRC further suggests: “We would therefore recommend that like the Recognition of Customary Marriages Act all marriages, which are solemnized in terms of Islamic Law, should be recognized……”
. Recognition could be conferred to all Islamic marriages by effecting a simple amendment to the current Marriages Act to this effect. There is absolutely no need for a separate burdensome Act to accomplish this simple mission.
As for consequences of such recognition, the Matrimonial Property Act offers several matrimonial regimes, one of which, viz., the antenuptial contract which excludes the accrual clause, provides for Islamic consequences. Thus, Muslims who are desirous of legal recognition and Islamic consequences, have viable options currently minus MMB.
3. Examining the requirements for validity of a Muslim marriage
In 3.1, the LRC states: “The requirements of Section 5 seem to be set out clearly enough. However, upon closer inspection, a myriad of dangers presents itself.”
In fact, at a cursory glance, Muslims observe the error and danger of this provision. Among these dangers are:
* Section 5 (a) mentions that prospective “spouses” must have consented to be married to each other. In the context of Islamic marriage, the term ‘spouses’ may not be used because in this context it has a specific constitutional connotation which refers to both male and female. Thus the spouses in a union can legally be two males or two females whereas in the Islamic sense ‘spouses’ mean nothing but husband and wife – a male and a female. The constitutional meaning of the term is extremely repugnant to the Qur’aan and Muslims.
* The gross failure of MMB to take into account the Shaafi’ Muslim community which most likely constitutes more than 50% of the Muslim population of South Africa. One of the fundamental requisites for the validity of an Islamic marriage (Nikah) in terms of the Shaafi’ Math-hab (School of Thought) is the Wali (the male guardian of a woman). According to the Shaafi’ Math-hab, a female, regardless of her age, rank, knowledge, expertise etc., has absolutely no contractual capacity in the sphere of marriage. Her marriage without representation by the male Wali is invalid. Minus the Wali. It will be an adulterous union. Thus, the validity provision of MMB is totally unacceptable to Muslims following the Shaafi’ Math-hab.
* Section 5 (b) of MMB is an erroneous encumbrance, because the validity of an Islamic marriage does not require ascertainment from a proxy whether the parties have consented to the marriage. While such ascertainment is a beneficial option and even a custom, it is not an incumbent requisite for the validity of a marriage. Thus, a valid Nikah (Islamic marriage) will be invalid in terms of MMB if the marriage officer for any reason whatsoever had overlooked this condition.
* Section 5 (c) pertaining to the presences of ‘witnesses’ “as required by Islamic Law” is ambiguous and can lead to dispute with could end up in the Constitutional Court culminating in the court ‘developing’ and transmogrifying the Shariah. The Bill does not specify the minimum number nor the sex of the witnesses. According to the Shariah, the minimum number of witnesses for the validity of a Nikah is two Muslim males or one Muslim male and two Muslim females. In Islam the testimony of two women is the equivalent of the testimony of one man. Since this is blatantly in conflict with the Constitution, it will be unacceptable. In this sphere too, MMB interferes with the Shariah, for the courts will not accept the Islamic law of testimony.
* Section 5 (d) which stipulates the age of 18 years for the validity of an Islamic Nikah is in stark conflict with the Shariah in terms of which persons of 15 years and over are adults who have contractual capacity. On this score too it is dishonest and erroneous to label the Bill a “Muslim” bill. The stipulation of the age of 18 is in terms of the civil Marriages Act. This civil measure should not be described as a ‘Muslim’ measure when in fact it is in violation of the Shariah.
With regard to the age of 18 years, the LRC states: “We support the requirement that a valid marriage can only be concluded between two persons who have reached the age of majority, which is 18 years. In terms of South African Common Law minors are not allowed to contract and a marriage in its nature is a contract entered into between parties……..”
There are three significant errors in this observation:
(a) The term ‘persons’ in this context is ambiguous since according to the Constitution “two persons” on the context of ‘marriage’ could refer to two males or two females. This is Islamically abhorrent and invalid. Marriage is valid only between man and woman.
(b) The age of majority, viz. 18 years, is not an Islamic requirement.
(c) While these provisions are admitted to be in terms of South African Common Law, they are dishonestly cloaked with Islamic hues and given a pedestal in a Bill dubbed “Muslim” Marriages Bill. This is unacceptable to Muslims.
Since these facets of S.A.Common Law do exist currently what is the need for MMB?
The LRC states: “This section also brings the legislation dealing with Muslim marriages in line with marriages/unions concluded in terms of the Marriage Act, the Recognition of Customary Marriages Act as well as the Civil Unions Act.”
We concur. It is quite apparent that from the very inception, MMB transmogrifies the Shariah, and presents the civil Marriages Act with some cosmetic changes, in Shariah hues to mislead the Muslim community. Why should the requisites of the civil Marriages Act be imposed on Muslims by deception?
The LRC further states the following incongruity : “What the Bill fails to mention is the absolute minimum age at which a person can marry under Muslim law. Therefore, the Bill does not make it clear when a child’s youth makes it impossible for his or her Wali to conclude the latter’s Muslim marriage on his or her behalf. The reality is that Islamic law does not recognize such a limit and the Bill, by not refuting this, states the same.”
Despite conceding that “Islamic Law does not recognize such a limit”, it (LRC) recommends that the Bill should provide for an “absolute minimum age under Muslim Law” Such an ‘absolute minimum age’ will be a secular provision. It will not be ‘Muslim Law’. It is clear that MMB is the vehicle which the LRC recommends be utilized for perpetrating deception, namely, to deceive Muslims into believing as Islamic law what in reality is not the Shariah.
The LRC also makes the following erroneous statement: “Islamic law only limits the age at which parties may themselves enter into a Muslim marriage to 18…”
This is incorrect. According to Islamic Law, a boy and a girl may enter into a Nikah by themselves when they have attained puberty which at the latest is 15 years, not 18 years.
In criticizing Islamic Law for allowing child marriage, the LRC states: “Sheikh Abdul Aziz Al Sheikh, the Saudi Grand Mufti, recently told the Saudi media that denying twelve year or even ten-year old girls their legal right to marry amounts to a grave injustice.”
We concur with the venerable Sheikh who had quite candidly stated the correct Islamic position. The unacceptability of this Islamic position does not entitle the state to enact misleading legislation. While the state in terms of its Constitution may enact this Islamic provision to be illegal, it is not entitled to proclaim to Muslims that it is doing so under the banner of Islam, and that it is a provision of the Shariah. The LRC is precisely recommending the perpetration of this deception.
The secular law is adequately clear. The Marriages Act forbids child marriage. This prohibition should not be portrayed as an Islamic prohibition under guise of MMB.
In its veiled attack on Islam, the LRC states: “The legality of Islamic law marriages like these has led to many cases of abuse and even cruelty, with young girls being sold into marriage with older men by desperately poor parents…..”
The LRC has here illustrated its anti-Islam bias or its gross ignorance of reality. Right here in South Africa, today, there are non-Muslim syndicates operated by foreigners as well as South Africans, who deal in the sex-trade in which dozens minor girls have been either ‘sold’ by their parents or who have voluntarily ‘sold’ themselves into the immoral racket. In several non-Muslim eastern and African countries the abuses mentioned by the LRC are perpetrated. These abuses have no association with Muslims and Islam.
Where such abuse occurs among backward and ignorant Muslims in some Muslim countries, it (the abuse) should not be attributed to Islamic Law. It is extremely pernicious for the LRC to attribute these abuses to “the legality of Islamic law marriages like these”. Firstly, the permission to marry off minors is restricted to only the father and paternal grandfather. Neither the mother nor any other member of the family has this right. The father has the best interests of his child uppermost in mind. If the contrary is established, the Qaadhi has the right to annul the marriage.
When parents or relatives who may be the guardians of orphan girls ‘sell’ off the children, they do so regardless of Islamic Law which never permits this abuse which the LRC unjustly and insidiously levels at Islam. Such persons lack morality in entirety, hence they are not concerned with Islamic law. They will opt in whatever manner they are able to fulfil their monetary desires.
Muslims, like non-Muslims, commit murder, theft, etc. Is this the consequence of any Islamic Law? Non-Muslims are the worst perpetrators of murder, rape, debauchery, robbery, etc., etc. Should we now infer that aspects of Christian religious law, Jewish law, Hindu law or African customary law or of the secular laws lead to such abuses? The LRC has not acquitted itself rationally in this respect.
Conscious of its unjustified criticism motivated by bias against Islam, the LRC avers: “This criticism is not aimed at Islamic law (at least not directly – the intention is not to change the Islamic law) but instead at the Bill and its notion that the principles of Islamic law contained therein can find a place in our constitutional legal system without any alterations or safeguards.”
Contrary to the aforementioned illogical averment, the LRC’s criticism is directly at Islam. The HRC speaks of the intention not being to change Islamic law, then in the next breath it proposes ‘alterations’. The self-contradiction is thus obvious. Whilst we need not comment on the anti-Islam attitude of the LRC, we object to altered Islamic Laws, transmogrified Islamic Laws, and un-Islamic laws portrayed as ‘Islamic Laws’ being hoisted on the Muslim community in the name of Islam.
This averment made by the LRC further confirms the view of those Muslims who are opposed to MMB that in the South African “constitutional legal system” the Shariah will most definitely be mutilated, transmuted and moulded into a hybrid concept beyond Islamic recognition. MMB is therefore a massive deception which has been proposed for legislation.
* We are in agreement with the LRC that the Cabinet Minister or anyone appointed by him cannot be given the power to consent to the marriage of Muslim minors. Only the father and paternal grandfather have been invested with this right by the Shariah. In this respect, MMB takes absolutely no cognizance of the Shariah, yet it is presented as a ‘shariah’ compliant proposal.
* With regards to its comparison between the two systems, the LRC states: “This comparison between Islamic family law and South African civil law is not an attempt to show that the latter is generally superior but rather to show that South African civil marriage law provides more protection to non-Muslim children than that which will be offered to Muslim children by a codified South African Islamic marriage law.”
Be this as it may. This averment at least shows the unconstitutionality of MMB which discriminates between Muslim and non-Muslim children on the basis of religion..
* The LRC states: The prospective bride is not always present when the wedding ceremony is concluded. Section 5 (1) (b) of the Bill mentions the use of a proxy to be handed to the Marriage Officer in order for him/her to conclude the marriage and to satisfy himself/herself that consent has indeed been given. The provision of a proxy in the section is optional. This is problematic if the bride is not present at the conclusion of the marriage one cannot satisfactorily verify consent.”
Firstly, the bride is almost never present at the Nikah ceremony. It is in conflict with Islamic culture for the bride to be present. Secondly, it is compulsory according to all Math-habs (Schools of Thought) for the bride to be represented by a male. While according to Hanafi Muslims, the Nikah minus a male Wali will be valid, nevertheless, it is sinful and not permissible. According to Shaafi’ Muslims, the marriage is simply not valid since a woman has no contractual capacity in the sphere of marriage.
* Section 5 of the Bill hinges the validity of a second marriage on the approval of the court. Without such approval a second marriage is null and void. It is a criminal offence. This is totally unacceptable. This provision is understandable in the Marriages Act, but not in a Bill which purports to be Shariah-compliant. This purport is false and deceptive.
* In its No.3.3 0n page 11, the penultimate sentence of the LRC states: “However, it is problematic that the application will be heard by a judge possibly not well versed in Islamic law and not assisted by assessors as was envisaged in the previous draft of the bill.”
Whether the judge is assisted by Muslim assessors or not as envisaged by the previous draft bill, the equation in terms of the Shariah remains the same. The decrees of a secular court are not valid even if the assessors are Muslims and even if the judge is a Muslim whose allegiance is to the Constitution, not the Shariah. The issue of the structure of the courts is a fundamental factor which by itself, alone negates the entire MMB.
* The LRC states: “Section 6(9)(a) makes mention for the first time in the Bill of a “person who facilitates the conclusion of a Muslim marriage”. It seems from an overall reading of the Bill that this is defined as either a marriage officer or a judge or magistrate. This need to be more clearly stated in the Bill.”
Besides this clause being totally unacceptable and in conflict with the Shariah, the LRC has displayed conspicuous shallowness in its research of the Bill. Despite the clarity of the Bill in this particular respect, the LRC read ambiguity in it. Section 6 (9)(a) reads: “Any person who facilitates the conclusion of a Muslim marriage, irrespective of whether that person is a marriage officer or not, must inform the prospective spouses that they have a choice whether to be bound by the provisions of this Act.” Amplifying this provision, the very next clause (b) states:
“If the parties to a proposed marriage elect to be bound by the provisions of this Act as provided for in section 2 (1), the person facilitating the marriage referred to in paragraph (a) must direct the parties to a marriage officer for purposes of registering the Muslim marriage so facilitated.” (Emphasis ours).
It is only the non-application of the mind which has constrained the LRC to fail to understand the meaning of ‘any person’ and ‘marriage officer’ in this context. The provisions clearly explain that the ‘any person’ is not a marriage officer, hence he (i.e. the any person) has to direct the parties to a marriage officer.
Our object for referring to this error in the comprehension of the LRC is merely to illustrate the perfunctory nature of the LRC’s study of the Bill.
4. Addressing the interests of children
The LRC states: “Section 10(1) pertains to custody of and access to minor children and states as follows: ‘In making an order for the custody of, or access to a minor child, or in making a decision on guardianship, the court must, with due regard to Islamic law and the report and recommendations of the Family Advocate, which must take into account Islamic norms and values, consider the welfare and best interests of the child.’ The emphasized part of this section indicates that parliament underemphasised South Africa’s supreme constitutional principles. Furthermore, this section makes it look as though Islamic law and the report of the Family Advocate hold more weight that S28(2) of the Constitution.”
The incompatibility between the two systems of law should be quite manifest from this averment. Undoubtedly, to Muslims, Islamic Law outweighs the Constitution, and according to non-Muslims, the contrary applies. What is the “welfare and best interests of the child” according to the Constitution may not be so in terms of Islamic Law and vice versa. The scope for conflict, dispute and discontent is great. “Islamic Law’ in the context of MMB is an ambiguous concept which will be subject to the interpretation of the court. Such interpretation will be in conflict with the Shariah. Therefore, the interpretation of Islamic Law and Islamic norms presented by the courts will not be the Shariah. Hence, to dub this MMB as a ‘Muslim’ Marriages Bill is a misnomer and misleading.
The LRC’s discussion on this issue serves to confirm that MMB is constitutionally incompatible with the Constitution. This supports our contention.
On page 13 of its Submissions, the LRC states: “Furthermore, section 11(2)(b)(i) addresses the maintenance of male children and the rules here are different……Not only does this amount to discrimination, but discrimination between children, and thus a clear disregard for the best interests of female children.”
There is no need for us to vindicate Islam’s concept. It suffices for the purposes of our objective to concur with the LRC in the contention that Section 11 (2)(b)(i) is indeed discriminatory according to the Constitution.
5. Examining the proprietary consequences of Muslim marriages and contractual capacity of spouses
Commenting on this aspect, the LRC states: “Section 8(1)(a) clearly states that a Muslim marriage is out of community of property, which in essence is a Western Civil Law concept, but which has a clear and distinctive meaning in law.”
The LRC is clearly in the dark regarding the history of the evolution of western civil law. Many centuries before the western or European nations had a systematic code of civil law, the Shariah had introduced the concept of ‘out of community of property’ which negates the fusion of the estates of the husband and wife. Marriage does not produce the consequence of the fusion of estates as the concepts of westernism provide such as in-community of property, antenuptial contract with the accrual clause, etc.
The imperative condition which should accompany recognition of Muslim marriages is the out-of-community of property regime in the event the couple did not select any specific regime, for the out-of-community of property satisfies Islamic Law. When it conforms to Islamic Law as well as with the Constitution, there is no need to create doubt and reservation in this kind of provision as the LRC does in the following averment:
“The difficulty that will be experienced will surely come from those who entered into a Muslim marriage before the commencement of the Act and who did not have any written agreement. There marriages would automatically be out of community of property and they would therefore derive no benefit from their marriage.”
This is an unreasonable, flawed argument spawned by an aversion for Islam. Does the Matrimonial Property Act then not make provision for out-of-community of property? Are those non-Muslim women who opt for the antenuptial contract not deprived from the benefit of their marriage? Is the out-of-community of property not a valid western concept which forms part of South African law? What constrains the LRC to incline towards depriving Muslims from this regime which conforms to their religious law? If out-of community of property is so objectionable and repugnant, we advise that the LRC should campaign for its abolition and expurgation from the Matrimonial Property Act.
Then, the LRC adds: “It is unclear how many individuals would have understood when they concluded a Muslim marriage prior to the commencement of the Act that such a marriage would be deemed out of community of property.”
It is clear from this averment that the LRC has absolutely no understanding of Muslim thinking and Muslim adherence to their Faith. Every single Muslim woman, be she educated or an illiterate, is fully aware that marriage in Islam does not create property consequences other than Inheritance which is the consequence of death. The few court cases which we have observed in the recent past were spawned by westernized instigators and those not favourably disposed to Islam. In every case of this nature, the woman never claimed for only maintenance for the Iddah period. Her gaze was set on western concepts for the acquisition of maximum monetary benefit in conflict with the tenets of the Shariah.
Only a small minority’s marriages are registered in-community of property. And, this too was by default. At the time of registering their marriages, they were not aware of community of property. Hence, the Ulama have been consulted by innumerable couples regarding their error of community of property. They seek from the Ulama stratagems of circumventing the insidious community of property system to enable them to draw up Islamic Wills which are not valid if the community of property regime has been adopted. Many Muslims have applied for dissolution of their community of property arrangement when they became aware of the conflict with the Shariah.
It is insidious for the LRC to seek to have imposed on Muslims a property regime which is not allowed by Islam, then to have it hoisted on Muslims by the deception of MMB which is being advertised as a Shariah-compliant bill.
It is plain ignorance of Islam and of the Muslim religious mindset that constrained the LRC to say: “However some provision needs to be made to provide some protection to these women.”
It is absolutely in conflict with the Shariah to encumber the Islamic marriage with property regimes. If the state desires to enact such draconian legislation, it should enact such discriminatory laws under the umbrella of the secular Marriages Act, not in the name of the Shariah thereby hoodwinking Muslims into the deceptive notion that such a property system is an encumbrance which complies with the Shariah.
Furthermore, applying decrepit logic as a consequence of oblique vision focused on Islamic Law, the LRC says: “The default position in respect of the matrimonial property regime in all other marriages is in community of property unless the parties opt out of it, however in terms of Muslim marriages the default position is out of community of property. Therefore, Muslim women will have less rights than other women since the default position is out of community of property.”
This is baseless. In terms of the Shariah there is absolutely no such creature as ‘the default position’ relative to marriage. The LRC desires to impose this creature on to Muslim Marriages by default or by hook or crook. When we speak of Muslim Marriages, we refer to Islamic Marriages as commanded by the Qur’aan and the Sunnah – the Divine Shariah with which tampering is a capital sin. Transmogrification of the Shariah is apostasy. The entire MMB exercise is apostasy.
The LRC desires to compound it with further apostasy, then pass it off as Shariah compliant.
Since Muslim Marriages are not encumbered with property regimes, the attribution of ‘the default position’ is highly erroneous and rejected with contempt. Yes, the ‘default position’ applies to the civil system.
Muslim women who sincerely believe in Islam never regard the ‘rights’ which non-Muslim laws confer to women to be deprivation for them. They never feel deprived of any rights if they do not enjoy the ‘rights’ which non-Muslim women enjoy. They are happy with only the Rights which Allah Ta’ala granted them. It is highly improper for the LRC or for anyone else to attempt to shove the rights of non-Muslims down our throats, and that too in the name of Islam through the agency of the insidious MMB. If Mr.John owns a million rand, it will be wrong for poor Mr.Zaid who is a Muslim to believe that he is deprived of the rights and the bounties of Mr.John.
The few cases of apostate women who had taken the route to the secular courts for satisfying their inordinate craving for the wealth of their ex-husbands, are not a barometer by which the Imaan of Muslim women could be gauged.
It is the constitutional right of all women to be in an advanced state of undress in public. A Muslim woman who never avails herself of such vile, immoral constitutional ‘right’ never feels deprived. Her Faith constrains her to believe that casting lascivious glances at ‘rights’ which are not permissible for Muslims is tantamount to apostasy. The LRC should not strive to westernize Islamic concepts and to influence Muslim women with its convoluted reasoning which seeks to portray apostasy as Shariah compliant.
The LRC’s recommendation on polygynous marriages is rejected outrightly . A bill which seeks to regulate polygyny and to impose restrictions on the unfettered right the Qur’aan has bestowed to men in this regard, must not be termed “Muslim”. It is an insidious anti-Muslim bill which all Muslims must condemn. The prohibition of polygyny in the civil Marriage Act is a sufficient to satisfy the Constitution. Muslims do not require MMB to enter into multiple Nikahs. Despite polygyny being rare in the South African Muslim community, the state should not dare interfere with our religion gratuitously.
Muslim women voluntarily enter into polygynous marriages. They are fully, fully aware of the consequences. In fact, most of them even waive their right of equality. No one compels them to waive such rights which the Shariah bestows to them. The right of equality while an obligation on the husband is not a requisite for the validity of the marriage in exactly the same way as the obligation of maintenance is not a requisite for the validity of the first marriage.
The LRC states: “However, many women cannot afford to register an ante-nuptial contract and many men refuse to register an ante-nuptial contract thus leaving second and further spouses in a precarious position.”
This averment is incomprehensible. An antenuptial contract does not mitigate the imagined ‘precarious position’. With or without antenuptial contract the imagined ‘precarious position’ remains. On the contrary, an antenuptial contract confirms the imagined ‘precarious position’.
Going on to cite the Gumede case, the LRC states: “Also in the case of Gumede the court found no reason not to develop the customary law to bring it in line with the Constitution so that women could be treated equally.”
This is precisely what the opponents of MMB fear. Muslims refuse that the Shariah be ‘developed’, transmogrified and made subservient to the Constitution. We are prepared to accept banning of the Shariah, but not transmogrification of the Shariah. Muslims are prepared for not obtaining recognition for their marriage, but not prepared to mutilate the Shariah, then to deceive and mislead the community with the corrupt notion that such a hybrid ‘shariah’ is the Divine Shariah of Islam.
The courts should effect constitutional ‘equality’ and issue decrees in terms of the civil laws, not do so under cover of MMB. The courts are not in need of MMB for executing their constitutional functions. In fact, the Constitutional Court had already commented that the application of religious law is intolerable for the judges.
There exists an African Customary Act, hence the courts are compelled to develop such of its laws which violate the Constitution. The Muslim community abhors placing in front of the courts the Shariah, thereby making it a subject of mutilation and transmutation.
6. Discussing the differences between equity and equality and the legal discrepancies
between men and women in a Muslim marriage.
The LRC says: “Section 3 of the Bill pertains to the Equal status and capacity of the spouses.” Summarizing its four and half pages discussion on the ‘Equal Status’ provision of the Bill, the LRC states: “By attempting to incorporate this part of Islamic family law into South Africa’s constitutional framework and social and economic realities without any substantial changes, the Bill dos not uphold section 28(2) of the Constitution.”
The thrust of the LRC’s discussion on the Equal Status provision is to show the unconstitutionality of the entire ‘Muslim’ Marriages Bill. To this extent we are in agreement with the LRC. The Bill is in conflict with the Constitution just as it is in conflict with the Shariah. Thus, this Bill should be scrapped.
The ‘Equal Status’ of husband and wife stated in Section 3 of the Bill is farcical in terms of the Shariah. There are numerous aspects of difference between man and woman according to the Shariah. It is therefore a massive deception and totally false to enshrine in the Bill that husband and wife are equal, then promote this falsehood to be the effect of the Shariah.
For the sake of educating the LRC, we mention its following averment: “Most impacting though, is the effect on children. In a South African context, it is not in the best interests of any Muslim child that his or her mother owes him or her no duty of support at any stage. This could become very problematic should the father not be able to fulfil his duty.”
According to the Shariah, if the father of children is unable to support them, then this obligation devolves on the consanguine (Asbaat) male relatives of the children, i.e on the paternal grandfather and paternal uncles. In their absence, the obligation devolves on the male relatives on the mother’s side. If all these relatives fail to execute their duty, the obligation devolves on the mother as well on the female relatives. In their absence or their failure, it is the duty of the Muslim community to fulfil the obligation.
The mother is not entirely free from the duty of support as the LRC has imagined.
7. Evaluating whether the Muslim Marriages Bill is at all plausible in South African
The LRC states: “It is our submission that the law as proposed by the Muslim Marriages Bill is irreconcilably unconstitutional.”
We as well as many other Muslim organizations have always maintained this stance. It is very surprising that the Minister of Justice & Constitutional Development together with his legal advisors have failed to understand what even laymen could discern. In addition to the Bill being in total conflict with the Shariah, it is ‘irreconcilably unconstitutional’ as the LRC contends. It will not withstand constitutional challenge. Its every provision will be the subject of constitutional attack should it be legislated.
The LRC says: “It is conceded that Muslim marriages cannot remain completely unrecognized unions, but Islamic law as it stands in the Muslim Marriages Bill cannot stand the test of the Constitution. We concede that the task is complex in nature as it seeks to regulate a religion, and not merely a custom or practice, which is in many ways easier to regulate as custom and practice evolve over time. Religion is, however, of such a nature that it does not lend itself to natural evolution.”
We agree in entirety that MMB cannot stand the test of the Constitution. The only answer is to scrap it once and for all. MMB purports two objectives: Recognition and Consequences of such recognition.
As far as recognition is concerned, this could be accomplished by effecting a simple amendment to the Marriages Act to the effect: All Muslim Marriage, monogamous and polygynous are recognized. This will answer the clamour for recognition. It will confer recognition to Islamic Marriages per se, and not to some hybrid union described as ‘muslim marriages’ as posited by MMB. After all, the courts have already decreed recognition for Muslim marriages in all the cases which have hitherto been brought to them. So what prevents the amendment of the Marriages Act to provide for such recognition?
Regarding the issue of consequences, the Matrimonial Property Act offers several matrimonial property regimes. In the Muslim community there are two types of Muslims: the orthodox and the modernists. If Muslims of the orthodox group desire consequences which comply with the Shariah, they are free to adopt the antenuptial contract which excludes the accrual clause. This regime enables Muslims to have Islamic Wills. It ensures that the estates of the deceased husband and wife are distributed in accordance with the Qur’aan’s Law of Inheritance.
If any Muslim, whether orthodox or not, desires Islamic consequences in the sphere of maintenance and custody, nothing prevents them from submitting to the dictates of the Shariah as handed down by the Ulama. Religion in a secular state belongs to the private domain. The state does not prevent Muslims from regulating their personal affairs in accordance with the Shariah. Hence, religiously-minded Muslims are totally free to submit to the Shariah and the consequences it decrees in the event of divorce.
Modernist Muslims who have no desire to submit to the Shariah are constitutionally free to take whatever route they desire. They are free to adopt any one of the several matrimonial regimes which the law offers.
In the event of a marital dispute, the orthodox Muslim will seek the ruling of the Shariah from the Ulama. The modernist who is irreligious will take the road to the secular court. Now what are the intractable and insurmountable barriers and obstacles in this prescription? The Marriages Act should decree recognition for all Muslim marriages, and such marriages will be out-of-community of property. Muslims, themselves, should select the consequences which they believe suit them best. We see no religious nor constitutional grounds for refusing to adopt the prescription which we here offer. It will solve all the uncalled for problems, discord and controversy which MPL-MMB has spawned over more than a decade of its torturous history.
If the Minister or anyone else requires any assistance or clarification regarding this proposal which we have presented, they should contact us without hesitation.
In concluding its submission, the LRC states: “A compromise is required, but this compromise will have to come from the Muslim community. The compromise will also have to be even greater than previously expected, if our Constitution is to be upheld. ……To many members of the Muslim community this may seem undesirable, but there does not seem to be a compromise solution that is simultaneously able to protect religious rights and adhere to our constitutional principles.”
The suggestion of compromising the Shariah is abhorrent in the extreme. Muslims – all Muslims – even those pro-MMB, we are sure, will opt for non-recognition and our children being branded ‘illegitimate’ rather than compromising and transmogrifying the inviolable, immutable, divine Shariah of our Creator. The LRC is incapable of appreciating this sentiment and incapable of understanding what type of blood pulsates in our veins, hence it has presented its horrible proposal of compromise.
In having made the abhorrent compromise proposal the LRC does not realize the blasphemy it asks the Muslim community to embrace.