[29] At this stage, it is appropriate to clarify an issue that was raised during the maturation process of the issue for consultation. The Lajnatun Nisaal-il Muslimaat filed an urgent application to annul the decision of that court recognizing UUCSA as a second amicus curiae. After reviewing UUCSA`s application and affidavit, we denied the application due to lack of chances of success. Lajnatun Nisaal-il Muslimaat argued in the application for annulment that UUCSA did not have standing in the present proceedings and that one of its constituent members, Jamait Ulama KZN, was not present at the meeting when a decision was taken on UUCSA`s participation in those proceedings. UUCSA denied the accusation, saying Lajnatun Nisaal-il Muslimaat was not one of its members and had no knowledge of its internal operations. Due to differences of opinion between Jamait Ulama KZN and the other members, they had agreed that Jamait Ulama KZN would not attend its meetings and should instead participate independently in the judicial proceedings on the issue in order to put forward its different views. UUCSA argued that the application for annulment was merely a strategy to prevent it from bringing motions before the Court that contradicted its arguments. In other words, the application for annulment should weaken support for the appeal sought by the WLCT and support for the WLCT`s action. Lajnatun Nisaal-il Muslimaat did not submit any affidavits from any of the Jamait Ulama KZN representatives to confirm his allegations. These allegations are therefore unsubstantiated in the light of the direct evidence from UUCSA. The applicant, Jamait Ulama KZN, does not complain that he was excluded from UUCSA meetings.
The only reasonable conclusion is that the agreement to exclude them is plausible. The request for resignation was unfounded and was therefore rejected. Having established that the law distinguishes between widows in polygamous Muslim marriages such as the applicant, on the one hand, and married widows within the meaning of the Marriage Act, widows in monogamous Muslim marriages and widows in habitual polygamous marriages, on the other, the question arises whether this distinction constitutes discrimination on any of the grounds enumerated in article 9 of the Constitution. The answer is yes. As I have already mentioned, our equality jurisprudence has made it clear that the nature of discrimination must be analyzed in its context and in light of our history. It is clear that in the past, Muslim marriages, whether polygamous or not, have been deprived of legal recognition for reasons that do not stand up to constitutional scrutiny today. It emphasizes that our Constitution not only condones but celebrates the diversity of our nation. The celebration of this diversity represents a rejection of arguments such as those found in the Semat case, where the court refused to recognize a widow of a Muslim marriage as a surviving wife because a Muslim marriage was rejected as “by the majority of civilized peoples” precisely because it was potentially polygamous.
for reasons of morality and religion.” [44] [55] Although the above analysis refers to the law of wills,[52] it is clearly applicable in this case. Not recognizing Muslim marriages as valid marriages sends the message that Muslim marriages do not deserve recognition or legal protection. There is no justification for the continued non-recognition of Muslim marriages. This is particularly true with regard to the historical context of the systematic violation of the rights of Muslim women. The fact that it is the woman`s decision to enter into a Muslim marriage and not to register her marriage does not mean that she should not be protected from the economic and social hardship she suffers in such a marriage. Their constitutional rights would still be violated. [53] It is also a fact that the Marriage Act does not apply to polygamous marriages. With regard to these marriages, Muslim women are therefore totally unable to avail themselves of existing legal protections. [35] The South African Human Rights Commission has argued that the state has an obligation to legally recognize and regulate Muslim marriages.
The South African Human Rights Commission has argued that these obligations flow from both international and domestic law. With regard to South Africa`s obligations under international law, the South African Human Rights Commission argued that South Africa was obliged to recognize and legislate on all de facto marriages, including Muslim marriages. This obligation derives from Articles 6 and 7 of the Maputo Protocol, Articles 8.2 and 8.3 of the SADC Protocol, Article 16 of CEDAW and Article 23(4) of the ICCPR. [36] With respect to South Africa`s domestic obligations, the South African Human Rights Commission has argued that these international instruments play a crucial role in determining the content of the State`s domestic legal obligations. In this context, the Commission on Human Rights has relied on the Glenister II judgment to argue that, when considering the measures that the State should take into account in the implementation of fundamental rights, international instruments play a crucial role in determining the content of the State`s domestic obligations. [37] “The non-recognition of her right to be treated as a `surviving wife` within the meaning of the Wills Act and the simultaneous denial of her right to inherit her deceased husband`s will are central to her fifty years of marriage, her position in her family and her reputation in her community. He tells her that their marriage was and is not worthy of legal protection. Its effect is to stigmatize her marriage, reduce her self-esteem and increase her sense of vulnerability as a Muslim woman. Moreover, as the WLC has rightly argued, this vulnerability is exacerbated by the fact that there is currently no legislation recognizing Muslim marriages or regulating their consequences.
In summary, the failure to recognise the third applicant`s right to be treated as a `surviving wife` fundamentally violates her right to dignity and constitutes a further reason for declaring Article 2C(1) [of the Wills Act] constitutional. [51] [74] The Court was reluctant to issue injunctions that had a disruptive effect. In Ramuhovhi, while recognizing that the discrimination in question was abhorrent and justifying the retroactive application of constitutional invalidity, the Court recognized that limiting retroactivity avoids the distortions and inconveniences associated with the cancellation of transactions. To that end, the Court issued an order declaring null and void either the liquidation of a final succession or the transfer of the matrimonial property concerned. The application of the order was also excluded from any transfer of matrimonial property if the purchaser knew at the time of the transfer that the property in question was being challenged before the courts on the grounds that the applicants had challenged. The Court adopted the same approach in Gumede, where the decision was not intended to affect the legal consequences of an act, omission or fact relating to an ordinary marriage before the adoption of the decision. [66] 1.11. The Ministry of the Interior and the Ministry of Justice and Constitutional Development shall promptly publish in newspapers and radio stations a summary of the orders referred to in paragraphs 1.1 to 1.10, as appropriate.