Islamic Marriages to be Recognised Under Constitution

Muslim women will soon enjoy the same rights in their marriages as those enjoyed by women in other religions.

This was recommended by the South African Law Reform Commission, which has approved a report containing recommendations and a proposed draft Bill recognising Islamic marriages and Related Matters be part of South African law.

According to the draft bill, Muslim women will have the right to divorce, have custody of children and claim for maintenance with better protection in those marriages in accordance with Islamic values and Constitutional tenets.

The report is one of the three that were handed to the Minister of Justice and Constitutional Development Penuell Maduna in Pretoria today.

The other bill to be amended into the Criminal Procedure Act provides for the use of modern audiovisual equipment and the establishment of 'videoconference courts' for the postponement of cases against accused persons who are awaiting trial.

The Law Reform Commission also recommended that a proposed draft Bill be approved for the Apportionment of Damages Act, where in case of accidents both the plaintiff and a defendant will be afforded fair and just payments based on whose was more at fault.

Judge Mohomed Navsa of the Supreme Court of Appeal said the draft Bill into Islamic marriages would create certainty with regard to Muslim marriages, where previously such marriages were not recognised under apartheid and post 1994.

'Islamic marriages were not recognised. With the advent of the new constitution all forms of culture and religion are given recognition and it is an obligation on the state to recognise such believes and value system provided they don't clash with the Constitution.

'In fact what we have in this is a comprehensive system in terms of which recognition is given to Islamic marriages to Islamic values to dealing with issues such as divorce, custody, maintenance and competing interest between different wives,' said Judge Navsa.

Minister Maduna hailed the Law Commission for its extensive research on the reports especially on Islamic marriages since 'it has been such a problematic and sensitive area for government'.

'I'm happy that at long last we are almost at a point where we shall give full legal recognition of marriages conducted and concluded under Islamic law and tradition,' said Mr Maduna.

'I'm very thrilled that this report has also been concluded where for instances prisoners awaiting trial will no longer have to be transported long distance to and from court just for formal remands or bail applications. These are now dealt with and disposed off electronically. This will help us tremendously,' said minister Maduna.

Claire Hartley Senior State Law Adviser at the Law Commission said the new draft bill on the Apportion of Damages Act advocated for a broader basis for apportionment of loss than fault as the old law determined fault as its only method to determine appropriate proportions.

She said the fact that fault was the sole criterion of apportionment under the Act had had an inhibiting effect on the application of the legislation.

'The draft bill requires the court to attribute the responsibility for the loss suffered in proportions that are just and equitable, taking into account all relevant factors and gives the court a wide discretion with regard to the method of determining appropriate proportion,' said Ms Hartley.