South Africa: Group Appeals for Legislation to Recognise Muslim Marriage
Ernest Mabuza
21 May 2009
Johannesburg — THE Constitutional Court had to decide whether it had the power to order the president and Parliament to enact legislation to recognise Muslim marriages.
The court yesterday heard an application by the Women's Centre Legal Trust asking the court to order that the president and Parliament prepare, initiate, enact and implement legislation providing for the recognition of all Muslim marriages as valid.
The court did not hear the merits of the case, but had to decide whether it had the exclusive jurisdiction to hear the matter.
Counsel for the centre Andrew Breitenbach said the Constitution asserted that the state may not unfairly discriminate against anyone on the grounds of marital status and religion.
He said failure by the state to recognise Muslim marriages was discriminatory and said the continuing piecemeal adjudication of the issues raised by the non- recognition of Muslim marriages was undesirable and perpetuated inequality.
Adv Marumo Moerane , acting for the president and the ministers of the justice and home affairs departments, said the state had investigated the issue of Muslim marriages, and it was up to the executive to decide whether there was a need for such legislation.
"This is a policy-laden issue. There are different and conflicting issues on having Muslim marriages regulated by the statute. It is not for the court to tell the president what to do," Moerane said.
The court did not have the power to declare that the president and Parliament had failed to fulfil a constitutional obligation, he said.
The constitution states that no person may unfairly discriminate against anyone on one or more grounds, including religion.
He said the constitution stated that legislation must be enacted to prevent or prohibit unfair discrimination.
"The state has actually enacted this legislation, The Promotion of Equality and Prevention of Unfair Discrimination Act. The constitution puts a huge premium on the equality provision," Moerane said.
The court reserved judgment.
Two weeks ago, former justice minister Enver Surty said that the new bill on Muslim marriages would not be published for comment.
He had initially planned to present the bill to the Cabinet in March in order to obtain its approval to publish the draft legislation in the government gazette for comment. Surty said the Cabinet decided it would prefer a full presentation on the bill to the incoming administration.
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