Government not delaying marriage law, court told
A proposal for a single piece of legislation that regulates marriages across all religions and cultures is currently under the spotlight, the Western Cape High Court has heard.
|||Cape Town - A proposal for a single piece of legislation that regulates marriages across all religions and cultures is currently under the spotlight, it has emerged in the Western Cape High Court.
Senior advocate Nelly Cassim SC informed Judge Siraj Desai of the proposed legislation on Wednesday when she addressed the court on preliminary issues raised in the mammoth court application over the Muslim Marriages Bill.
The Women’s Legal Centre (WLC) lodged the application in a bid to get the authorities moving on efforts to give recognition to Muslim marriages in South Africa.
It claims that the government has been dragging its feet. But Cassim, who represents Minister of Justice Michael Masutha, said this was far from the truth.
The process of having the legislation in place to regulate Muslim marriages had been ongoing for 20 to 25 years and it involved complex issues, objections and dissensions, she explained.
“There can’t be an attack on the government for dragging its feet because the evidence shows the contrary,” she said.
Cassim added that there had been a proposal, which emanated from Home Affairs Minister Naledi Pandor, for a single Marriage Bill that caters for all religions and cultures.
“It’s going to be investigated. There has never been a lackadaisical approach on the part of justice (authorities),” she added.
Cassim was responding to a point which attorney Zehir Omar, who represents the United Ulama Council of South Africa (Uucsa), made on Tuesday that the matter could not be decided on the papers filed.
He argued there were material disputes of fact which might require oral evidence and the WLC should therefore have used a different approach when it decided to take the matter to court.
On Wednesday Cassim agreed with Omar that the court could not determine the issue on the papers before it. She said it could not be resolved by the court if it had taken lawmakers so long to finalise the issue.
However, referring the matter to oral evidence would not serve any purpose either, she said.
Another preliminary point Omar raised was that the WLC had failed to cite chapter nine institutions as respondents.
Anwar Albertus SC, who represents the Minister of Home Affairs, agreed with Omar but limited his argument to two institutions; the SA Human Rights Commission and the Commission for the Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities.
He submitted that any order the court made would impact prejudicially on those institutions and proposed they be afforded an opportunity to join.
Judge Desai also pointed out that the relief sought was far-reaching and could have a bearing on other religious groups too. Albertus added that a secular judge could not be expected to adjudicate matters involving Islamic divorce, maintenance and custody without the input of chapter nine institutions.
Andrea Gabriel SC, who represents President Zuma, supported Albertus’s submission.
Omar raised five other preliminary points, arguing that each one was sufficient for the court to dismiss the WLC’s application with costs.
The other points include whether or not the WLC Trust had the legal standing to take such an application to court and his argument that it was undesirable for the court to interfere in matters that should be left to the legislature.
He also submitted the centre was seeking relief that was unconstitutional and its own constitution precluded it from doing so.
The WLC’s efforts have been talked about in Muslim and legal circles for several years and entails the delicate balancing of shariah (laws) with several rights, particularly women’s rights, in the constitution.
The centre claims the non-recognition of Muslim marriages amounts to an ongoing violation of the human rights of women in Muslim marriages and it is taking government departments to task over the issue, saying that, despite a 10-year law reform process, legislation has still not been passed.
Judge Desai is expected to give judgment on the preliminary issues on Monday.
fatima.schroeder@inl.co.za
Cape Argus