22 Von Abo v. President of the Republic of South Africa, ZACC 15, Case No. CCT 67/08, 5 June 2009, not yet reported, para. 36. The Court confirmed that Article 167(4)(e) — Marie-Claire Foblets, Lic. iur. Iur., Lic. Phil., Ph.D. Anthrop.
(Belgium) is Professor of Law at the University of Leuven (Leuven, Belgium) and since 2012 also Director of the Department of Law & Anthropology at the Max Planck Institute for Social Anthropology in Halle/Saale. She has conducted extensive research and publications on migration law issues, including the drafting of European migration law under the Treaty of Amsterdam, citizenship and nationality laws, forced integration, anti-racism and non-discrimination, etc. In the field of legal anthropology, his research focuses on cultural diversity and legal practice, with a particular interest in the application of Islamic family law in Europe and, more recently, in the placement of cultural and religious diversity in state law. “The non-recognition of her right to be treated as a `surviving wife` within the meaning of the Wills Act and the simultaneous denial of her right to inherit her deceased husband`s will are at the heart of her fifty-year marriage, her position in her family and her reputation in her community. He tells her that their marriage was and is not worthy of legal protection. Its effect is to stigmatize her marriage, reduce her self-esteem and increase her sense of vulnerability as a Muslim woman. Moreover, as the WLC has rightly argued, this vulnerability is exacerbated by the fact that there is currently no legislation recognizing Muslim marriages or regulating their consequences. In summary, the failure to recognise the third applicant`s right to be treated as a `surviving wife` fundamentally violates her right to dignity and constitutes a further reason for declaring Article 2C(1) [of the Wills Act] constitutional.
[51] In addition, a multi-stage trial has the advantage of isolating and clarifying the issues and highlighting the evidence most relevant to them. This is undeniably a case in which this procedure would be advantageous not only for the parties to the proceedings, but also for the Court of Justice. The motion provoked a strong reaction from various organizations concerned about the position of women in the Muslim community, the application of Islamic law and the interests of the Muslim community as a whole. Five of these organizations were granted amicus curia status, while a request to intervene from another organization was suspended pending clarification of preliminary issues. It is clear from these requests that not only legal issues, but also factual issues are highly controversial. They may require the resolution of contradictory expert evidence and other evidence. It is not appropriate for the Court of Justice to fulfil this function as a court of first and last instance. 37 See Affordable Medicines Trust and Others v. Gesundheitsminister and others [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC), paragraph 138, and Biowatch Trust v Registrar, Genetic Resources and Others [2009] ZACC 14, Case No. CLC 80/08, 3 June 2009, not yet published, paragraphs 22 and 5.
Addressing the Court directly, the applicant argues that the alleged omission falls within the Court`s exclusive jurisdiction under Article 167(4)(e) of the Constitution.2 In the alternative, he submits that in any event he should be granted direct access under Article 167(6)(a).3 On 25 March 2009, the Chief Justice has given instructions to: in which he is asked to examine these allegations. The directions sent the matter back to the hearing on only two issues: [7] In 2009, the WLCT made a request for direct access to the Court and requested essentially the same rulings it is seeking now. The request for direct access was denied. The Court argued in favour of a multi-stage trial and concluded that it would be useful to resolve the difficult issues before the High Court and the Supreme Court of Appeal. The Court also held that multi-stage litigation would ensure that the views of the organisations concerned and evidence that might be relevant to their claims were duly taken into account. See Women`s Legal Centre Trust v. President of RSA [2009] ZACC 20; 2009 (6) SA 94 (CC). 36 See, for example, AParty and another v. Minister of the Interior and Others; Moloko et al.
v. Minister of the Interior and another [2009] ZACC 4; 2009 (3) SA 649 (CC); 2009 (6) BCLR 611(CC) at paragraph 30. [35] The SAHRC argued that the state was required to legally recognize and regulate Muslim marriages. The South African Human Rights Commission has argued that these obligations flow from both international and domestic law. With regard to South Africa`s obligations under international law, the South African Human Rights Commission argued that South Africa was obliged to recognize and legislate on all de facto marriages, including Muslim marriages. This obligation derives from Articles 6 and 7 of the Maputo Protocol, Articles 8.2 and 8.3 of the SADC Protocol, Article 16 of CEDAW and Article 23(4) of the ICCPR. [36] With respect to South Africa`s domestic obligations, the South African Human Rights Commission has argued that these international instruments play a crucial role in determining the content of the State`s domestic legal obligations. In this context, the Commission on Human Rights has relied on the Glenister II judgment to argue that, when considering the measures that the State should take into account in the implementation of fundamental rights, international instruments play a crucial role in determining the content of the State`s domestic obligations. [37] Having established that the law distinguishes between widows in polygamous Muslim marriages such as the applicant, on the one hand, and widows who were married within the meaning of the Marriage Act, widows in monogamous Muslim marriages and widows in customary polygamous marriages, on the other, the question arises whether the distinction constitutes discrimination on any of the grounds enumerated in Article 9. of the Constitution.
The answer is yes. As I have already mentioned, our equality jurisprudence has made it clear that the nature of discrimination must be analyzed in its context and in light of our history. It is clear that in the past, Muslim marriages, whether polygamous or not, have been deprived of legal recognition for reasons that do not stand up to constitutional scrutiny today. It emphasizes that our Constitution not only condones but celebrates the diversity of our nation. The celebration of this diversity represents a rejection of arguments such as those found in the Semat case, where the court refused to recognize a widow of a Muslim marriage as a surviving wife because a Muslim marriage was rejected as “by the majority of civilized peoples” precisely because it was potentially polygamous. for reasons of morality and religion.” [44] [9] In 2013, Ms. Faro, represented by the WLCT, brought an action in the High Court against the executor of her late husband`s estate, Mr. Moosa Ely, who married her on March 28, 2008 under Sharia law. In 2009, Mr. Ely was diagnosed with lung cancer. Mrs.
Faro took care of him during his illness. On August 24, 2009, the two men argued over Mr. Ely`s failure to give her money for food. After the argument, Mr. Ely took Ms. Faro to an imam.[9] Mr. Ely told the imam that he was fed up with Ms. Faro and asked the imam to pronounce a Talãq.[10] Without speaking to Ms. Faro, the imam presented Mr. Ely with a Talãq certificate.
Ms. Faro was seven months pregnant with her second child at the time. 1.7. Until the entry into force of the laws or amendments to existing legislation referred to in paragraph 1.6, it is declared that Muslim marriages that existed on December 15, 2014, the date on which this action was brought before the Supreme Court, or that were terminated within the meaning of Sharia law on December 15, 2014, but in respect of which legal proceedings have been initiated and have not yet been finally decided at the time of the lodging of the present action. the date of this order may be dissolved in accordance with the Divorce Act as follows: [74] The Court was reluctant to make disruptive orders. In Ramuhovhi, while recognizing that the discrimination in question was abhorrent and justifying the retroactive application of constitutional invalidity, the Court recognized that limiting retroactivity avoids the distortions and inconveniences associated with the cancellation of transactions. To that end, the Court issued an order declaring null and void either the liquidation of a final succession or the transfer of the matrimonial property concerned. The application of the order was also excluded from any transfer of matrimonial property if the purchaser knew at the time of the transfer that the property in question was being challenged before the courts on the grounds that the applicants had challenged. The Court adopted the same approach in Gumede, where the decision was not intended to affect the legal consequences of an act, omission or fact relating to an ordinary marriage before the adoption of the decision. [66] [55] While the above analysis refers to the law of wills,[52] it clearly applies to this case. Not recognizing Muslim marriages as valid marriages sends the message that Muslim marriages do not deserve recognition or legal protection.