Judge Siraj Desai Judge Siraj Desai
Cape Town - Within minutes, Western Cape High Court Judge Siraj Desai kicked out a controversial application aimed at expediting the passing of legislation which will give full recognition to Muslim marriages.
He found on Monday that the application, which was supposed to be argued before him for several days this week, could not proceed without the involvement of crucial Chapter 9 institutions.
However, all is not lost.
The Women’s Legal Centre (WLC), which lodged the application in the public interest, has been ordered to serve the application on two Chapter 9 institutions – the South African Human Rights Commission and the Commission for the Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities.
The issues before the court in the WLC’s application fall squarely within the ambit of these Chapter 9 institutions, Judge Desai found.
They were, therefore, entitled to be joined as parties to the proceedings, he said.
If the institutions decline to participate, they will have to file notices of their intention to abide by the court’s decision.
If they agree to participate, they will be given an opportunity to file papers of their own.
The case was postponed to March 20.
Judge Desai’s ruling was made after attorney Zehir Omar, who represents the United Ulama Council of South Africa, raised concerns he had with the matter last week.
One of these related to the non-joinder of the Chapter 9 institutions.
Omar also raised an additional six preliminary points and argued that each formed sufficient basis for the dismissal of the WLC’s application, with costs.
In the end, Judge Desai only accepted the non-joinder point.
The proposed legislation on Muslim marriages has been talked about in religious and legal circles for more than two decade. It entails the delicate balancing of sharia laws with several rights, particularly women’s rights, in the constitution.
The WLC believes that the non-recognition of Muslim marriages amounts to an ongoing violation of the human rights of women in such marriages and it is taking government departments to task over the issue.
Despite a lengthy law- reform process, legislation has still not been passed.
This prompted the WLC to lodge the application.
It claims the government has been dragging its feet.
The president, ministers of justice and home affairs,the Speaker of the National Assembly, the chairperson of the National Council of Provinces and the United Ulama Council of South Africa are opposing the application.
The Law Society of South Africa, South African Lawyers for Change, the Muslim Assembly, the Islamic Unity Convention, the Commission on Gender Equality, and a body that also calls itself the United Ulama Council of South Africa (which includes the Muslim Judicial Council) have been admitted as friends of the court.
