On Wednesday, Advocate Nazreen Bawa of the Women’s Legal Centre (WLC), who brought the case before court, read out a summary of her heads of argument.
For over a decade the WLC has been lobbying for government to protect, promote and fulfil the rights of Muslim women and to recognise Muslim marriages as valid in South Africa.
Detailing the WLC’s application, Bawa described the complaint as an unmet constitutional obligation.
“It is in the absence of legislation that the applicant locates the Respondents’ (referring to the head of State and cabinet’s) failure to protect and give effect to the rights contained in the Bill of Rights. It is different from a complaint that there is constitutional fault with legislation or provision are under - the latter is the alternative relief,” she said.
In her heads of argument, Bawa, said there was a need for “coherent clear legislation” to provide protection for women in Muslim marriages and children born into these marriages.
“Failure to provide effective enforcement mechanisms and the lack of intervention by the State exacerbates their vulnerability.
“Recognition afforded to Muslim marriages and the consequences of their dissolution are better suited to legislative rather than judicial interventions,” she submitted.
Bawa put it to the court that it was its responsibility to ensure that the State performs its obligation, to uphold the constitution.
One of the cases consolidated in the matter was of Ruwayda Esau, a woman married under Islamic Rites, and who is unable to claim a 50% share in her ex-husband’s pension fund.
Her lawyer, Advocate Johanne de Waal said Parliament had the answer to such problems.
“We can’t ask Parliament in a democracy to pass law. The cabinet must fulfil its constitutional obligation without undue delay and should do so after a certain time.
“But in the interim, between making an order and legislation finally introduced, there needs to be external protection of various laws given to the Muslim women,” said De Waal.