Monday 24 September 2018

Heritage Day

Good morning, Assalaam-Aleikoem, I greet you in the name of peace, justice and dignity.

A Happy Heritage Day to all!

We wish to thank the leadership of the Al Quds Mosque, the presiding marriage officer, Imam Alexander and a range of Home Affairs officials for their respective roles in making today’s event possible.

It is apt that these wonderful strengthening of bonds in front of family and community take place on Heritage Day, an occasion that symbolizes unity in diversity, the reclaiming of our dignity and the recognition and inclusion of the entire spectrum of South African society.

We are still very much a society in transition. Islam was introduced to the southern tip of Africa by slaves and political prisoners primarily from the East Indies, brought here by the Dutch. Prevented from openly practicing their religion, they did so surreptitiously, preserving the distinctive Cape Malay culture that adds flavor to our national diversity.

During the British era from the Indian sub continent there were migrations of Indentured Workers of Hindu and Muslim faiths.

Since the demise of Apartheid South Africa is now home to Muslims who originate from Africa, the Middle East and even the Far East.

Prior to 1994, and due to their potentially polygamous nature Islamic marriages were deemed to be illegal as polygamy was considered unlawful in the body of  Roman Dutch law.

Being a resilient community Muslims in South Africa developed a practice of self regulation away from the formal bureaucracy of the state and in particular developed a practice of non-registration of marriages at the department of Home Affairs.

Imams who usually officiated over the purely religious marriage ceremonies were not marriage officers and did not register these marriages at the department of Home Affairs.

Prior to the adoption of our constitution the Marriage Act was amended to make provision for the Muslim and other previously excluded religions. The tradition of non registration of  Muslim marriages however continued, bringing untold hardship to many women in the unfortunate event of a divorce or the death of their spouses.

A marriage in terms of the Marriage Act requires prospective partners to consider and formulate the consequences of their marriage in relation to their assets and property prior to the registration of their marriage. This consideration is usually not present when embarking on a purely Religious Union. Much of the consequences of such religious marriages goes unrecorded and there is a general assumption that goodwill, justice and generosity of spirit as Divinely Ordained will prevail at the end of the union. Very often however during an acrimonious divorce or an untimely death, the lack of formal registration and agreement on the matrimonial property brings or adds to conflict within families, as expectations may be misaligned,  leading to  contestation, litigation and a general state of disharmony.

In 2015, the department of Home Affairs together with our partners -the MJC, the KZN Ulema Council and the Jamiat in Gauteng, began a process of certifying Imams as marriage officers under the Marriage Act in the hope that many Muslim marriages would come into the fold of registered civil marriages-as do other religious groups.

Despite the many court cases aimed at resolving the conflicts arising from non- registration of Muslim  marriages under the Marriage Act, it is important for Muslims to note that there is no automatic legal recording or registration of Nikkah ceremonies. 

The Department of Home Affairs have certified  over 200 Imams around the country who conduct Nikkah ceremonies but who also sequentially conduct civil marriages which are in turn properly recorded and registered at the Department of Home Affairs. 

Earlier this year, we embarked on a program to educate particularly Muslim women about this initiative, and the availability to Muslim spouses of the protections of the in community of property regime when registering civil marriages. Many expressed the desire to conclude civil marriages, while still adhering to the strictures of the Nikkah ceremony.

In addition at every meeting we attended those women who had already been married Islamic-ally for many years but whose marriages were never recorded and registered civilly, inquired whether they could ex-post facto record and register their marriages in accordance with the Marriage Act. The answer to that persistent question is “yes”.

Today we have several couples who having been married Islamic-ally for many years, have now chosen to register civil marriages. Some will be regulating the consequences of their marriage in terms of ante- nuptial contracts, while others will regulate their property in accordance with the “ in community of property” regime.

The vision of an inclusive society was powerfully enunciated in the 1955 Freedom Charter which proclaimed that “South Africa belongs to all who live in it…”

This clause, and its attendant values of dignity were later enshrined in our Constitution and Bill of Rights. Today on this day of our Heritage of Unity in Diversity we hope and trust that the many Muslim couples whose marriage dispensation resides outside of the law, follow the example of good and inclusive citizenship displayed by the couples here today, by ensuring that their marriage is properly recorded and registered, thereby ensuring certainty. Such registrations may be done before an Imam who holds a certificate identifying him as a marriage officer, or by making an appointment with a marriage officer at the department of Home Affairs. 

As Muslim couples do so, they will be counting themselves into a broader citizenry but also abiding by the tenets of Divine Scriptures, which declare that Justice, Righteousness and Harmony is beloved by the Creator of the Universe.

Today, despite the enduring damage of the past and many challenges confronting us, South Africa continues to forge ahead in its efforts for an inclusive society.

I once again wish to extend our gratitude to the al Quds Musjid, in particular to the trustees and to Imaam Alexander, whose support in this effort have been unwavering, together we aim to ensure that social justice and harmony prevails in the homes of our compatriots in the Muslim community.

I thank you.


Other pertinent matters: 

Muslim Marriages Bill

A number of issues raised by the Ulema bodies led to several impasses on the legislative front over the last twenty years. The Bill has evoked significant opposition from within the Muslim community. The result is that the Bill has not been finally processed. The issues that are unresolved relate to the consequences and not the recognition or registration of Islamic marriages. But it is the non -registration that leads to manifest injustice and an assault on the dignity of muslims. The State is now proposing a Religious Marriages Bill to provide for all of the diverse faiths in the country. 

Consequences of a Civil Marriage in terms of the Marriage Act

Prior to marriage, couples will now have to consider how their matrimonial property will devolve upon the unfortunate event of a divorce or death.

They can choose to marry in community of property, which means that in the event of a death or divorce, there is an equal sharing of the marital property. Or they can choose to conclude an ante nuptial contract with or without the accrual regime which by and large is the opposite of community of property. It is this latter type of marriage that enables muslim couples to conclude ante-nuptial contracts that have an Islamic (Sharia) basis.

Many of the hardships visited on Muslim women occur in the aftermath of a divorce. Because their marriages were unrecorded there is no legal coverage of the community of property regime which is the legal safeguard that pertains in the absence of an ante- nuptial contract. Usually, unless the marital home is registered in both the husband and wife’s name, the house will go to the party in whose name the house is registered, in many instances this tends to be the husband. This leads to the estranged wife (and often children)being without a home, and quite often without any resources  to acquire a new home. So, wives end up with very little to show at the end of their marriages, even if they were contributing equally to the marital property during the marriage. These and other proprietary injustices pertain should the marriage not be registered under the ha d of a marriage officer in terms of the Marriage Act. 

This will ensure that the marriage event is registered on the National Population Register and will then afford Muslim couples full legal rights in the unfortunate event of divorce or death of the husband.

The Recent WLC case

As far as the court judgement is concerned, we are consulting widely with Stakeholders and other government entities. We will make a public statement on thismatter in the weeks ahead. For now, it is public knowledge that the State is considering legislation that covers all religious marriages. This proposal is currently with the South African Law Reform Commission for consideration.  

While these processes are underway, the Department of Home Affairs and other government entities will continue to uphold and entrench the rights in our Constitution and Bill of Rights, including the right to freedom of religion that is guaranteed for all.