The Muslim Marriages Bill, the outcome of 4 years of intensive community consultation and consensus seeking recently came under fire in the Constitutional Court 

 In 2003, the SALRC submitted the Bill to the Minister of Justice and Constitutional Development (Justice).  Since then, it appears to most people as though Justice has done little to move the Bill forward in the parliamentary process. 

 While awaiting this legislation women have been undergoing serious hardship. Women who claim financial or other rights at the time of divorce must do so through the courts which is a costly and tedious process.

 Having dealt with a number of these cases, the Women’s Legal Centre (WLC) finally took Justice, the President, the Minister of Home Affairs, Speaker of Parliament and the Chairperson of the National Council of Provinces to task. 

 WLC launched a class action in the Constitutional Court (CC) asking the Court to compel the government to enact legislation to recognise Muslim marriages within 18 months of the judgment being delivered.  One of their arguments is that the existing status quo is especially prejudicial to Muslim women.

 In response, Justice and the other implicated parties opposed the application on the basis that if the Constitutional Court instructs Parliament it would be interfering in a legislative function and breaching the separation of powers between the legislature and the Courts. 

 The second objection is that there is not sufficient consensus within the Muslim communities yet for legislation to be enacted therefore they need more time to consult. 

 Their arguments are being assisted by a group called Lajnatun Nisaa-il Muslimaat (Association of Muslim Women of South Africa) who recently launched an application which effectively opposes the recognition of Muslim marriages in South Africa. 

 The group, represented by attorney Zehir Omar, although a small collective of women's groupings gives the impression that it represents the views of all Muslim women in South Africa.

  Lajnatul Nisaa is arguing that the recognition of Muslim Marriages is not necessary and that the status quo should remain as it is.  

  They are encouraging the Court not to compel Justice to enact legislation.  

 Should these aims be achieved then Justice will be able to drag its feet on this Bill indefinitely and the legislation that the community has been looking forward to might never be enacted.

 Women’s groups across the country have responded to this turn of events with a vigorous round of meetings and consultations. 

  In Cape Town, Shura Yabafazi has begun efforts to shore up support for the Bill and so have the MYM in Johannesburg.  

 And in KZN a new group Coalition of Muslim Women is preparing to enter as amicus to help the Court in its deliberations. 

 The new group emerged following a meeting between Attorney Shuaib Omar,  Professor Nadvi, UUCSA Representatives and the Minister of Justice Enver Surty.

At a meeting held by Association of Muslim Accountants and Lawyers (AMAL) in KZN last week Justice Minister Enver Surty reaffirmed his support for the Bill and committed himself to moving the Bill forward in the parliamentary process. 

 This meeting also saw a change of heart amongst groupings opposed to the Bill. 

 The change came once the Minister explained that the Bill included provisions for those who chose to opt out of it. 

 This would allow individuals to choose not to be governed by the Bill and thus opt out of it and manage their affairs as they choose. 

 Moulana Yusuf Patel, Secretary General of the United Ulama Council of South Africa (UUCSA) has assured that as an Ulama body, UUCSA will continue to participate in the process of the development of legislation on Muslim marriages. 

 The women’s groups are unanimous that this legislation is necessary.   To alleviate the hardships on Muslim women Muslim marriages must be legally recognized. While it seems like the Bill is safe for now the public will need to be vigilant. 

 If the Minister’s promises are true then the Bill should arrive at Parliament soon. It will be up to the public to ensure that the Bill undergoes a parliamentary process which allows for full public participation at every level.