Muslim Personal Law in South Africa: Evolution and Future Status

September 1st, 2019
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By Najma Moosa and Suleman Dangor (eds)

Cape Town: Juta

(2019) 1st edition

Price R 695 (incl VAT)

465 pages (soft cover)

 

When South Africa (SA) crossed the Rubicon to an open and democratic society, it seemed that the legislation of Muslim personal law was simply a question of ‘when’ and not ‘if’. Since then, the enthusiasm appears to have dissipated. A light has, however, emerged from the darkness, in the form of the 2018 decision in Women’s Legal Centre Trust v President of the Republic of South Africa and Others 2018 (6) SA 598 (WCC), which was decided by the Western Cape Division of the High Court.

This was a landmark case in which the court gave the legislature two years within which to enact legislation recognising Muslim marriages. This judgment placed Muslim personal law and Muslim marriages in particular, back onto the agenda.

The book Muslim Personal Law: Evolution and Future Status, edited by Najma Moosa and Suleman Dangor, appears to come at the appropriate time to add substance to the debate and impetus surrounding pertinent Muslim personal law issues.

The central question explored in the book is how and whether Muslim personal law should legally be recognised in SA, within the context of the road that has already been travelled thus far. The editors curated individual contributions on the topic from lauded academics and lawyers but seem to have overlooked the voice of the traditionally trained Islamic scholar.

The contributions include, inter alia, a detailed history of the status of Muslim personal law, various perspectives of the Muslim Marriages Bill, including an analysis of –

  • the Recognition of Religious Marriages Bill;
  • the considerations of the contentious issues in Muslim personal law (including, succession and inheritance, polygyny, divorce, custody of children, and marital property regimes);
  • the role of secular institutions, such as courts;
  • constitutional and human rights perspectives; and
  • a range of proposed solutions to the difficulties of enforcing and regulating Muslim personal law.

The primary focus is on Muslim marriages and the contributions provide a nuanced understanding on the attempts at recognition to date. Legal practitioners who encounter issues relating to Muslim personal law in their practice will benefit from the succinct summary of the history and progress of the fight to have Muslim personal law recognised, but not compromised. Legal practitioners will be more equipped and knowledgeable of the relevant issues and many of the existing perspectives on the topic after reading this book.

A tension, which appears as a theme throughout the book, is whether the right to religious freedom and its gendered effects should be subordinated to constitutional considerations of equality and human dignity or vice versa. The book highlights the way in which the non-recognition of Muslim marriages has resulted in challenges, especially for Muslim women. By way of example, Islamic divorces have always been a source of significant disputes before South African courts when they interact with civil and constitutional law. The extent to which these difficulties have been ameliorated by court cases decided in favour of Muslim spouses, giving limited recognition to Muslim marriages in circumscribed situations, is extensively discussed. However, it is also recognised that continued ad hoc developments are not desirable to the uniform protection of Muslim women’s rights in particular.

Importantly the authors discuss a range of alternatives to the Muslim Marriages Bill as the way to regulate Muslim personal law. The reader has the opportunity to consider the practicality of options such as arbitration in marital disputes or divorce and pre-marriage contracts incorporating Islamic principles. What is clear is that the road ahead for the recognition of Muslim personal law remains paved with obstacles, notwithstanding the directive to the legislature by the Western Cape Division in the Women’s Legal Centre Trust case. The need for all interested parties to be actively involved in considering the various possibilities is obvious.

The book will be be captivating for a myriad of interest groups, including religious scholars, university students and individuals interested in Muslim personal law or the recognition of religious marriages generally. It is an especially useful read for legal practitioners working in the areas of divorce law or estates. Furthermore, it is certainly a must read for the Muslim community at large given the impact any decision regarding the recognition and regulation Muslim personal law will have.

The book, rather than attempting to answer the important questions which exist, serves a much greater purpose – it equips the reader in forming their own opinions on these complex and deeply personal issues. It is an ideal starting point for the robust and meaningful engagement required around the interface between religion and secular regulation. However, the opinion of the traditional Islamically trained scholar would have been a valuable addition to this collection.

Walid Brown is a legal practitioner, he was assisted by Saarah Coenraad a candidate legal practitioner. They both practise at Werksmans in Cape Town.

This article was first published in De Rebus in 2019 (Sept) DR 36.