Cape Town - A senior attorney has accused a prominent women’s rights body of “using subtle means” to change what the Qur’an prescribes to Muslims to bring it in line with South Africa’s Constitution.
“The Qur’an is immutable. It cannot be changed,” he told the Western Cape High Court on Tuesday.
Zehir Omar was addressing Judge Siraj Desai in a controversial and much-anticipated application the Women’s Legal Centre Trust (WLC) had lodged, “in the public interest”, in its bid to see Muslim marriages recognised.
The centre’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 WLC says the non-recognition of Muslim marriages amounts to an ongoing violation of the human rights of women in Muslim marriages, and are taking government departments to task over the issue.
They say that, despite a 10-year law reform process, the movement has effectively become stagnant and legislation has still not been passed.
Before proceedings got under way on Tuesday, Omar rose to his feet quickly and brought seven preliminary points to the court’s attention.
One of the points related to the WLC’s constitution.
According to Omar, the NGO’s own constitution precludes from going to court to seek relief in matters that are unconstitutional.
He took the court through some of the Islamic aspects of marriage, such as the differences between the rights of women and men in the event of divorce, and explained that these would be regarded as unconstitutional in South Africa.
What the WLC was therefore seeking was unconstitutional and discriminatory.
The real aim behind the WLC’s application, Omar charged, was adapting the Qur’an.
Judge Desai pointed out that the matter was an extremely complex issue which dealt with divine revelation that could not be changed.
He asked the WLC’s advocate, Nazreen Bawa SC, how the court should deal with the issue.
Bawa responded that the WLC was not asking the court to tamper with the Qur’an. It simply wanted the necessary authorities in government to deal with the issue.
Other preliminary points Omar raised included whether or not the WLC Trust had the legal standing to bring such an application, the fact that chapter nine institutions were not joined as parties, and that it was undesirable for the court to interfere in matters that should be left to the legislature.
He also took issue with the manner in which the WLC took the issue to court, saying that the centre knew oral evidence might be necessary because there were material disputes of fact.
Arguments on the preliminary issues continue on Wednesday before Judge Desai gives his ruling.
If Omar does not succeed, the main application will be argued.
The President, Minister of Justice, Minister of Home Affairs, the Speaker of the National Assembly, the Chairperson of the National Council of Provinces and the United Ulama Council of South Africa are opposing the main application.
The Law Society of South Africa, South African Lawyers for Change, the Muslim Assembly, the Islamic Unity Convention, the Commission on Gender Equality, and a body that also calls itself the United Ulama Council of South Africa (which includes the MJC), have been admitted as friends of the court.
In a statement, WLC attorney Hoodah Abrahams-Fayker explained: “When civil or customary marriages break down, the law steps in to ensure fairness between the spouses and to protect the rights of the children. This is not the case in respect of Muslim marriages or other religious marriages.
“Once customary marriages were given full legal recognition, the historical basis for not recognising polygynous marriages fell away. The courts have already found the lack of inclusion of Muslim marriages to be discriminatory in respect of inheritance and spousal dependant’s claims, but legislation is needed to recognise them for all purposes.”
Abrahams-Fayker said the WLC was also often approached by women who could not get a divorce because they were dependent on their husbands to agree.
“Even where the religious bodies intervene, they have no power to compel a husband to adhere or to enforce an agreement reached,” she said.
She pointed out that the centre’s concern was that many Muslim divorces take place without the oversight of the court, and the advice of the family advocate regarding the best interests of children involved. In the case of civil and customary divorces there was judicial oversight, she said.