Judgment was reserved on Wednesday in an application to the Constitutional Court to force Parliament and the president to enact a law recognising Muslim marriages.
The court narrowed its argument to whether it could tell Parliament or the President what to do in terms of law-making, and whether it should be the first court to hear the matter.
Andrew Breitenbach, lawyer for the Women’s Legal Centre Trust, was hoping to convince the court to order the President and Parliament to enact the Muslim Marriages Bill, which the Trust claims has been sitting unattended since 2003.
He said that currently, for example, if a Muslim woman married under sharia law — which sets out the way Muslims should live their lives — wants to get divorced, she has to argue in a court whether this can be done under the Divorce Act, or whether she must seek a solution under religious laws.
He said there were also disputes over what the rules were governing a marriage in terms of Islamic law.
He said that taking a dispute to a High Court was expensive and difficult to manage for women who may not be that well educated.
Breitenbach said he and his client did not want the Constitutional Court to tell Parliament and the President what should be in an act, but just that they should pass an act.
This would be to have a law that was in line with the Bill of Rights, which ensured equality and dignity. However, the court asked if it was entitled to tell Parliament to pass a law.
”Do we have the power? It seem to be the issue,” asked Judge Sandile Ngcobo.
”Only the Constitutional Court can decide whether Parliament or the President has failed to provide a Constitutional obligation,” submitted Breitenbach.
Justice Kate O’Regan questioned whether it was proper for the state to say how a particular marriage was managed. ”Some people may not want their marriages to be recognised in this way,” she suggested.
Breitenbach said that there was a misapprehension that if an act was passed it would set new rules for Muslim marriages.
”In the Law Commission’s draft bill, they contain a provision allowing the parties to opt in or opt out. If they opt out, the law applicable is that applied before the new law comes into operation,” he said.
But, the lawyers for the State argued that telling Parliament what to do would be a violation of the separation of powers.
Nelly Cassim, arguing for the speaker of Parliament and the National Council of Provinces said a draft bill was being prepared and it was imperative that the public participation process be completed before any litigation was considered.
Marumo Moerane, arguing for the President and the departments of justice and home affairs disagreed that the court could decide whether legislation was needed and that there was nothing in the Constitution to force Parliament to enact a law. It only made inferences to enacting laws that would enforce rights, so that it would not violate the principle of the separation of powers.
”It’s up to the executive to decide whether or not legislation is called for,” he said.– Sapa