MAKING HISTORY:
OUR JOURNEY TO RECOGNITION
IT’S OFFICIAL! Victory for Muslim women
IT’S OFFICIAL! MUSLIM MARRIAGES HAVE FOR THE FIRST TIME BEEN RECOGNISED IN SOUTH AFRICA
To catch up on everything you need to know, IN BRIEF.
For many years, Muslim marriages in South Africa were not recognized by the country’s law systems, causing significant discrimination against the Muslim community. The Divorce Act of 1979 explicitly excluded Muslim marriages, which led to Muslim couples facing various obstacles with ending their marriages, such as seeking court protection orders, financial support, and custody of children.
In late 2022 The Al Jama-Ah political party introduced two private member bills, pushing for changes to both the divorce and marriage laws. This included, amongst other crucial areas of amendments:
Clause 1: is an insertion of a new definition of Muslim marriage recognised by the Constitutional Court Judgment to be part of South Africa’s common law.
Clause 2: amends section 6 of the Divorce Act by providing safeguarding mechanisms for minors or dependents of a Muslim Marriage.
Clause 3: amends section 7 of the Divorce Act by empowering a court to grant a divorce decree on the dissolution of a Muslim marriage to make an order regarding the redistribution of assets.
Clause 4: amends section 9 of the Divorce Act to empower a court when granting a divorce, a decree on the dissolution of a Muslim marriage to give an order that patrimonial benefits of a Muslim marriage be forfeited in stipulated terms.
The amendments pushed by AL JAMA-AH to the Divorce Act remove discrimination and hardship for children born in a nikah marriage and wives facing talaq.
THIS PAGE DOCUMENTS THE FULL HISTORY OF THE JOURNEY AND INTRODUCES THE AMENDMENT TO THE RECOGNITION OF MUSLIM MARRIAGES BILL
2022 MUSLIM MARRIAGE BILLS
WHAT IS THE STATUS OF THE MARRIAGE BILL?
Since the late apartheid era (1980s-1994) and throughout the current democratic period (1994-2021), South Africa’s well-established Muslim community made several noteworthy attempts clamouring for the recognition of Muslim personal law; many of their vulnerable sections (namely, the women and children) of this community have suffered because of the non-recognition of Muslim marriages.
Despite key organizations such as the Muslim Judicial Council and NGOs such as Women’s Legal Centre having made further efforts during the past few years to push its recognition through the different legal structures including approaching the courts, it seems that all their valuable labours in seeing this being concretized have come to naught.
Numerous reasons can be mentioned, and a long list of research essays can be furnished demonstrating the work and energy that have gone into achieving the Muslim community’s desired goals; but, for various reasons, they have gone unrewarded with their marriages still not officially being recognised.
Bearing these frustrating developments in mind, Al-Jama-ah’s leadership grasped the importance of taking up this matter using Parliament, where it has its key representative, Hon Ganief Hendricks, to reach that anticipated objective. Since Hon Hendricks has been a Member of Parliament for the past three years, he used his presence to fast-track this process using the Private Members Bill. He and Al-Jama-ah’s legal team,which includes Yusuf Khan Dalwai stitched together a minimalist Muslim Marriage Bill with the purpose of having Muslim marriages recognized; this task has since been completed and the Bill has been finalized and handed into Parliament for its approval.
GANIEF HENDRICKS INPUT INTO THE OMNIBUS MARRIAGE BILL
MUSLIM marriages can have legal status under the Omnibus Marriage Bill said AL JAM-AH’s leader and Member of Parliament Honourable Ganief Hendricks.
Hendricks was speaking at a workshop on the Nikah Bill held with the party’s legal team on the legalisation of Muslim marriages. Deliberating on the socio-historical and political-religious sequences to have Muslim marriages recognised, he said the party had made several appeals to the Home Affairs Minister Aaron Motsoaledi to remove the insulting “legal” entry of “Never Married” on the death certificates of Muslims to “widow” or “widower”. Unfortunately, the Minister has turned down all the appeals made by Hendricks.
“The impending Omnibus Marriage Bill is an all-embracing legislation of which Muslim marriages will be part of. But such legislation will take about five to six years to be finalised in parliament,” he explained.
Hendricks’s history in the struggle for the recognition of Muslim marriages started in the 1970s when he was president of the Muslim Students Association of South Africa (MSA). The Muslim Judicial Council (MJC) who formed the Shurah Council a Muslim “parliament” during the 1970s co-opted him to serve as the personal assistant to its president, Sheikh Mahdi Hendricks.
The Shurah Council also had a Shari’ah Court on which Hendricks played an active role at an administration level. After more than 40 years, he continues to serve on the Shurah Council as a trustee.
Hendricks’s determination to have Muslim marriages recognised led him to research done by the late Judge Ismail Mahomed, former chairman of the Law Commission. “This research follows the interest of Muslim marriages. Some of the Commission’s leaders at the time, Jeremy Gauntlet and others looked at the whole issue of giving legal consequences to Muslim marriages. The outcome was, it should not be part of the South African legislative frame-work but be given some legal recognition and that disputes must be decided by a bench of Qadis,” Hendricks stated.
He said judge Mahomed held a strong position that, “judges outside the Muslim faith should not interfere or dabble in Muslim matters.” At the time as the vice-chairman of the Islamic Unity Convention (IUC) which consisted of 300 Muslim organisations and is also the license holder of Radio 786, he was part of a delegation to meet with the Ministry of Justice.
The delegation included Sh Abdul-Karriem Toffar, Imam Achmad Cassiem, Mr Ali Adams IUC’s legal representative and a few other members. They met with the then Minister of Justice the late Dullah Omar and a very large delegation from the Justice Department. At this meeting Minister Omar rejected the idea of a Muslim marriages act and proposed a Religious Marriages Act, because Hindus, Jews and some Christians also do not have their marriages recognised. The IUC delegation then approached him to establish a commission of enquiry leading up to such an act.
MUSLIM marriages can have legal status under the Omnibus Marriage Bill said AL JAM-AH’s leader and Member of Parliament Honourable Ganief Hendricks.
“There were two camps of which the one wanted a bench of qadis under the existing status quo and improving on the way we do things in our community. The other camp decided on a Muslim Marriage Act, where you codify the Islamic four schools of thought to address each one’s ruling. But Omar made it very clear that there would be no support for a Muslim Marriages Act as it would not work. His reasoning also jeopardised our request for a commission of an enquiry. As the IUC’s Public Relations Officer, we embarked on a countrywide public participation process on the matter. It was clear that majority SA Muslims was in favour of a Muslim Marriages Act,” Hendricks said.
The government then established a Muslim Personal Law Board, and this caused rivalry between MYM (Muslim Youth Movement), ICSA (Islamic Council of SA) and the IUC which resulted into the exclusion of the latter.
“The MYM and ICSA was opposed to the equality clause in the constitution and used some Islamic justification in, for example, in the Islamic inheritance where a boy gets twice as much as the girl, which is in contrast to the constitution of the country.
Eventually, AL JAMA-AH received the support of former president Jacob Zuma for the party’s own draft on the Religious Marriage Bill. President Zuma decided not to enroll the Muslim marriages bill in parliament, because there too many objections, and he was reluctant in getting involved. At that time, we assisted the ruling party in running some municipalities, with the agreement that AL JAMA-AH would draft a religious marriages bill will take all the challenges into account,” he said.
But AL JAMA-AH was challenged by a group of prominent and influential muftis who objected to such a Bill. It was not the party’s intention to alienate the muftis, so it embarked on a strategy to bring them on board by appointing a lawyer who also served for two years as a labour court judge, with experience in mediation and arbitration and managed to get the muftis to pave his bill of arbitration in Muslim marriage disputes.
When the Bill was finally drafted and handed to the ANC’s Luthuli House for processing, they suddenly got cold feet, because the matter of dispute would be handed over to the Constitutional Court, who would have to decide how to practice Islam. The muftis couldn’t accept that process,” Hendricks explained.
AL JAMA-AH was then the only political party who took the matter to the Supreme Court of Appeal. “In my opinion the judges preferred not to get involved with theological matters. They told the two parties to come up with interim measures, because it’s unacceptable that such an important matter should be dragging out over a long time.
The government then proposed the Omnibus Marriages Bill, which includes one marriage act for gays, colonial marriages, for cultural marriages, and they will have a special door for religious marriages. This door may have four different entrances, for different main religions, and does not prescribe how to conduct religious marriage rituals,” he said.
However, this Omnibus Marriages Bill could be more complicated and would take five to six years to process. “There is now an opportunity for Al Jama-ah to promote the legislation of Muslim marriages by presenting a draft bill, the Religious Marriages Bill. Unfortunately, the deadline is towards the end of October. But this deadline will not stop us in our tracks, we will continue to pursue the matter as a draft bill was tabled in parliament.”
“In the past, the Private Members Bill had to be sanctioned by the ruling party, but now it’s no longer necessary after the Constitutional Court ruling, all Members of Parliament, can table a Bill in parliament.
“The only criteria is how much assistance parliament will give me in comparison to what they give to Members of the ruling party. But we already met twice with the Secretary of Parliament who has requested historical background on what the Muslims have done over the past 50 years to obtain legal consequences on which the party’s legal team is working on,” Hendricks said.
Also to be included will be on how AL JAMA-AH exercised its public participation process Some of its public participation included advertisements in the Cape Argus, interviews on community Muslim radio stations, Voice of the Cape and Radio 786; audio-visuals explaining the Bill and round table sittings in various areas over the past two years.
“My term of office expires in 2024, and we have to pilot this bill and will obviously speed up the process. Our legal team is largely driving this to get the Private Members Bill eventually voted for in parliament. The Muslim Marriage Bill provides for structural-functional mechanism, one of which is the Shari’ah court.
“We are therefore ready to launch a Shari’ah court at the party’s Parliamentary National Constituency Office in Surrey Estate. The model of Sh. Toffar, where women who lay a complaint appeared before women instead of men, will be put in place. Currently, at other existing structures women must lay their complaints before men.
The AL JAMA-AH’s Shari’ah Court’s woman advisor will give a recommendation and forward it to someone qualified to endorse a decree of fasaagh. But it will not have statutory power until the Nikah bill is passed. After the fasaagh has been granted the Magistrate’s Court will then stamp the recommendation of the Shari’ah court and it will become an order of the court.”
In the case where the husband fails to nafaqah the wife for the stipulated three months, his action would be determined as being in contempt of court, and he could be arrested. “Now, the question is whether the Women’s Legal Centre and the other faiths are expected to stand in agreement with the Omnibus Marriages Bill,” Hendricks concluded.
LANDMARK MOMENTS:
‘The Registration of Muslim Marriages Bill” has been certified by the Parlimentary Legislative drafting team
as compliant with the rules of Parliament.
WATCH LIVE: The National Assembly discussion of the Portfolio Committee on the Registration of the Muslim Marriages Bill – followed by the response of the Department of Home Affairs on the Registration of the Muslim Marriages Bill.
WATCH THE PRESENTATION HERE:
THE STRUGGLE AND RIGHTS FOR MAINTENANCE
Al Jama-ah aims to bring Parliament to the People and have their voices heard.
The purpose of Aljama-ah’s webinar on maintenance was to detail the failures within the maintenance system, highlight the needs, and ultimately secure like-minded individuals and professionals to step up and take heed of failures within the system affecting women & children.
The objective is that the findings from this webinar will be detailed and brought before parliament by our party leader Mr MGE Hendricks who will elevate the concerns, so constructive solutions can be brought to parliament and these matters addressed with urgency.
WATCH AL JAMA-AH WOMEN’S WEBINAR
Be part of the duty and fight for justice and moral values
As aired on Mupmpakapa TV | Channel 260 on DSTV
MAKE YOUR VOICE HEARD. This is what you can do:
MUST READ:
THE CONCOURT RULING
ON MUSLIM MARRIAGES:
Implications and challenges
Everything you need to know –
and what YOU can do:
THE MARRIAGE BILL EXPLAINED
JULY 2022 | Al Jama-ah-the interim registration of muslim marriage bill
The Al-Jama-ah’s leadership has grasped the importance of taking up the Marriage Bill using Parliament, where it has its key representative, Hon Ganief Hendricks, to reach that anticipated objective. Since Hon Hendricks has been a Member of Parliament for the past three years, he used his presence to fast-track this process using the Private Members Bill. He and Al-Jama-ah’s legal team, which includes Yusuf Khan Dalwai stitched together a minimalist Muslim Marriage Bill with the purpose of having Muslim marriages recognised; this task has since been completed and the Bill has been finalised and handed into Parliament for its approval.
JUNE 2022 | The Interim Registration of Muslim Marriages Bill: To be Recognized or Not to Be Recognized?
Two Cape-based bodies, namely Women’s Legal Centre (WLC) and Al Jama-ah, employed their resources to have Muslim marriages recognized since the question has lingered for decades: should it be, or should it not be recognized? Both made critical intercessions during the past five years. The WLC fought fiercely to effect constructive changes for these women and Al Jama-ah worked tirelessly since it gained a parliamentary seat during 2019; the latter used Parliament’s Private Members’ Bill (PMB) structure to accelerate this process as compared to WLC that pursued the legal avenues by taking government and others to the Constitutional Court.
Even though the WLC preceded Al Jama-ah with its labours, the two ran more-or-less parallel to one another; and one may further argue that their respective efforts – despite employing dissimilar strategies – complemented one another in the circumstances. Before 2019, the WLC had a head start by taking the South African President and a few others to court with the purpose of securing the Muslim women’s rights. And it did so to protect their rights within the socio-legal environment where they suffered (for generations) discrimination.
Al Jama-ah used its available resources prudently to not only quicken the process but to make sure that these women’s dignity was restored. It thus proposed an interim minimalist Muslim Marriage Bill (MMB) aka Nikah Bill with the idea of speeding up the procedure. The proposed MMB, which was developed, is currently in circulation for comments and it thus awaits parliamentary approval for formal recognition.
The separate socio-legal and political struggles of WLC and Al Jama-ah have brought glimmer of hope to the Muslim community; the WLC fortunately gained support because of the Constitutional Court’s findings. Both groups’ energies forced the government’s hand to act fairly. In the case of AJP, it used the resources to not only legally rectify the Muslim women’s rights but to basically restore their (lost) dignity.
For decades – if not centuries, their rights have been disregarded and trampled upon. It is very sad to observe that even this current democratic legal system, despite some positive changes, has continued to snub and marginalize this segment of the society; because of that, they have not been and are not viewed as equals, like other women, in South Africa. It is for this reason that WLC and AJP made positive and timely interventions.
Bearing these in mind and winding up this short article, one encourages the government to, in principle, publicly declare that Muslim marriages are forthwith recognized (using the Al Jama-ah Bill as its document); it should be pro-active and not wait a minute longer to make that position known. As soon as this declaration is announced and publicized, it should identify a coterie of qualified legal and non-legal personnel that can assist in refining the proposed MMB by fashioning it in such a way that it complements the other Bills and legislation.
FEBRUARY 2021 | Mr M G E Hendricks to ask the Minister of Home Affairs:
What prevents the Government from
(a) affording legal recognition to Muslim marriages by using the same procedure that provides for the recognition of African customary marriages through the registration process at his department, while permitting for the Nikah certificate to be issued by an officiating Imam in the same way as the lobola certificate is issued by an African customary official such as an Induna, and
(b) attributing the status of married on death certificates of such Muslims in instances of a de facto marriage(-s) having been in existence as opposed to the current not married status attributed to all Muslims who were exclusively married according to Muslim rites, particularly in instances of Muslims who succumb due to Covid-19 related deaths but also deaths resulting from other causes?
OCTOBER 2020 | Al-Jama ah lobbying in Parliament
A Private Members Bill on Muslim Marriages is in the process of being drafted by the AL JAMA-AH party’s legal team.
Political parties have the right to introduce a bill in parliament without it being sanctioned by the ruling party. AL JAMA-AH’s leader and Member of Parliament, Hon. Ganief Hendricks confirmed that he had already lobbied with various political parties to support the Bill when it will be voted on.
The party also made written submissions to the Home Affairs Minister Aaron Motsoaledi to remove the insulting entry on the death certificates of Muslims which states ‘never married,’ due to the government’s non-recognition of Muslim marriages. The request was turned down by the Minister.
“We submitted a Parliamentary written question to the Minister for the Nikah, a formal binding contract according to Muslim rights, to be recognised by the same legislation that recognises African customary marriages and gay marriages. But the Minister replied that the government has no powers to have Muslim marriages legalised through the Recognition of Customary Marriages Act, which is regulated by the Recognition of Customary Marriages Act, 1998.”
“The Party views it as the most insensitive response to not only grieving Muslim women, but also women from the Jewish and Hindu faiths. Grieving widows cannot have a final view of their husbands after a Covid-19 death and all they have is a death certificate which states, ‘never married.’ How insensitive and cruel after many years of marriage and it’s an insult to the Muslim community,” Hendricks exclaimed.
“Muslim marriages can have legal status under the ‘Omnibus’ Marriages Bill which is an all-embracing legal legislation of which Muslim marriages could be part of. The research done by Judge Ismail Mahomed who was chairperson of the Law Commission at the time, looked at the prospects of giving legal consequences to Muslim marriages. The outcome was, it mustn’t be part of the South African legislative framework, but given some sort of legal recognition,” Hendricks said.
“Disputes must be decided by a bench of Qadis. Judge Mahomed held a firm position that judges outside the Islamic faith should not interfere or dabble in Muslim matters. Former Minister of Justice, Dullah Omar did not support the idea of a Muslim Marriages Act, but rather called for a Religious Marriages Act, because Hindus, Jews and some Christians also do not have their marriages recognized,” he said
The drafting of a Religious Marriages Bill was supported by the former president Jacob Zuma who took a decision not to enrol the Muslim Marriages Bill in parliament, due to several objections from within the Muslim community. AL JAMA-AH was the only political party to have taken this matter to the High Court.
“The government then came up with the Omnibus Marriages Bill which includes one Marriage Act for gays, colonial-, cultural- and a special door for religious marriages. “This door may have four different entrances, for the different main religions which does not prescribe how to conduct religious marriage rituals.
Al Jama-ah now have the opportunity to promote legal Muslim marriages and to present a draft bill, the Religious Marriages Bill and the party has already tabled a draft bill in parliament .
“The criteria is how much assistance parliament will give AL JAMA-AH in comparison to what the ruling party receives. “We have met twice with the secretary of parliament who requested a historical account on what the Muslims have done over the past 50 years to obtain legal consequences and also the party’s public participation process on the matter.
“The party has advertised widely in the media on this matter in the Cape Argus, community radio stations, Voice of the Cape and Radio 786. We also had audio-visuals explaining the Bill and round table sittings over the past two years.
“We are ready to launch a pro bona desk at our offices in Surrey Estate, where counselling is provided, legal assistance given and the women will receive referrals to organisations such as the MJC, ICSA, Muslim Assembly or other organisations of their choice, preferably the same venue where she married.
Hendricks said as soon as a Shari’ah court has been established it will be based on the model of Sheikh Abdul Karriem Toffar where women appeared in before a woman advisor to lodge complaints. “In practice, women will appear before the head of the Shari’ah court to lay a complaint. We preferably will not have women appear before men. The woman advisor will give a recommendation and forwarded to someone qualified to endorse a decree of fasagh. It will not have statutory power until the Nikah Bill has been passed,” he said.
Huge anticipation amongst Muslim women for the recognition of their religious marriage
There are legitimate reasons for the urgency of the recognition of Muslim marriages in South Africa.
The strong and general view is that the South African Constitution is not compatible with Islamic Law and Muslims should have broad recognition that the consequences of marriage should be regulated according to Islamic rulings.
Consequently, Muslim women feel they are not protected by the South African Legislation as their marriages are not being recognised and Islamic Institutions have failed them.
Al Jama-ah as a political party located close to the heart of the community has an integral role to play in encouraging Muslims to increase their knowledge on their Islamic rights in relation to each other.
It is imperative that Muslim institutions capacitate themselves on the rights of Muslims to help change the public perception that they are failing women and are unable to provide the necessary support and protection to them.
Al Jama-ah Political party has submitted a Private Members Bill to Parliament for the recognition of Religious marriages including Muslim marriages and the consequences of all religious marriages in respect of maintenance, custody, and access; proprietary consequences of marriage and the law governing the termination of marriages in terms of the tenets of religion including Islam.
Al Jama-ah’s Member of Parliament and leader, the Hon. Ganief Hendricks, said that women currently approach the Muslim Judicial bodies with their disputes. The Private Members Bill will ensure these rulings have legal muster.
“The party had public participation with the wider community and with women, through the media and round table discussions in African townships such as Attridgeville. The feedback on the Alternative Dispute Resolution Bill was extremely positive”, said Hendricks as taking disputes to the High Court is very expensive.
Muslims are not prepared to abandon Islamic rulings on marriages as they are not willing to betray their faith.
The inclusion of a clause that pertains to Alternative Dispute Resolution has been forwarded by Al Jama-ah as part of the relevant Private Members Bill. The clause ensures Religious Marriages including Muslim marriages concluded under this Bill will further subscribe to mechanisms allowing for Compulsory Mediation and Arbitration within a prescribed period.
Those appointed must be qualified to resolve the dispute under the laws applicable to the religious system like Islamic religious system.
Al Jama-ah respectfully submits that the Single Marriage Bill approved by the cabinet as a green paper infringes on the constitutional rights of citizens in exercising their freedom, religion, and beliefs and there is a provision in the Constitution that there should be “reasonable accommodation” in matters relating to religious marriages.
In conclusion, we propose an “opt-out clause” be included in the relevant bill to ensure Muslim marriages be governed by the tenets of Islam and not the 20 Acts of Parliament included in the “green paper”.
Al Jama-ah appeals to the community at large to study the Single Marriage Statute Bill as a matter of urgency and forward all comments, concerns, and recommendations to the government via the National Parliamentary Constituency office via email: [email protected].
Contact person Hon. Ganief Hendricks
Hon.Hendricks has also called on the community at large to support its Private Members Bill.
A digital copy is available on our website. Visit www.aljama.co.za.