ISLAMIC FAMILY LAW IN SOUTH AFRICA

Assalāmu `alaikum wa Rahmah Allāh wa Barakātuh.

It gives me great pleasure to address this distinguished gathering in this august institution of learning and research and I thank the institution’s office bearers and administration for affording me this opportunity.

My topic, although restricted to Islamic family law, is intertwined with Islamic history in South Africa and especially the Cape where Islam first entered Southern Africa. I deem it therefore necessary to give some background here before I speak on Islamic family law in South Africa.

Brief Overview of Islamic Existence in South Africa:

The Republic of South Africa, commonly called South Africa, is the last country in the south of the continent of Africa.

Its ancient inhabitants were the San people (also known as the Bushmen) and the Khoi-Khoi. Bantu tribes migrated to South Africa many centuries ago, the main one among them being the Nguni people of whom both the Zulu and Xhosa are the main representatives.

Not much is known of that early history.

Colonization started in the southern region of South Africa where the Dutch East India Company, which was then a major force in the East, decided to set up a refreshment station at the Cape for its passing trading fleets en route from Holland to the East. Thus, later Jan Van Riebeeck, a marine doctor, was sent to the Cape where he arrived on 6^th April 1652. This was the start of European settlement and colonization in Southern Africa.

The Dutch had a difficult time in containing their grip in certain parts of its South East Asian colonies and, it used imprisonment, banishment and far-off exile as weapons to deal with the uprisings. It is in this oppressive scenario that Islam came to what is now called South Africa. Of the first to arrive were Mardyckers from SE Asia.

However, the most important arrival was that of revolutionary Shaikh Yusuf whose actual name was `Ābidīn Tadia Tsoessoep of Makasar, Bantam in Java and entourage of about 40 in 1694.[1] He was originally exiled to Ceylon (present day Sri Lanka) and later, due to his influence on people there, transferred to the Cape of Good Hope where colonial governor Simon van der Stel had him settled on the farm Zandvliet near Faure. Being a great learned man who studied in his home country and in Makkah and a Shaikh of various sūfī orders including the khalwatiyah, he was the highest authority in Islamic learning at the Cape in his time.

The Dutch having then developed a great need for servants and labourers for the new and expanding colonist settlements at the Cape of Good Hope, embarked on importing convicts, political exiles and on the evil of enslaving the free persons from their colonies as well as elsewhere and brought them to the Cape. Some of these now enslaved persons were Muslims of Southern and SE Asia. Some were also imported from Madagascar, Mozambique and East Africa. Many were given Christian names as an attempt to destroy Islamic identity and heritage and so avoid the problems experienced elsewhere in Dutch colonies.

Apart from these persons, free Muslims from various parts of the globe also arrived here, some from India, some from SE Asia, some from Arabia, notably Hadramawt and some from Hijāz and other Arab lands. Muslim surnames in the Western Cape bears testimony to these origins. Persons of royal lineage were also incarcerated at the Cape like the Rajah of Tambora and the qādī prince `Abd al-Salām known as Tuan Guru, the latter of whom lies buried in the old Muslim graveyard, called the Tana Bāru.

Many of these persons, with the exception of the last two, learnt Islam from Shaikh Yusuf and this chain of learning from mashā’ikh remain to this date. Not only did Shaikh Yusuf teach the religion, he also stressed their humanity and status as believing Muslims in a strange land far from their fatherland which contributed to their continued adherence to their faith and its practice as well as a sense of pride in being a Muslim, something which developed strong political overtones later during colonial times at the Cape of Good Hope which later developed into the Cape colony.

Shaikh Yusuf died at the Cape in 1699 and his entire following save a daughter and two companions, were shipped back to Bantam, Java. He lies buried at Faure settlement outside Cape Town.

After this traumatic event, the remaining Muslim community had the onerous task of not only keeping Islam alive and well, but also to devise ways and means to maintain Islamic identity. The community succeeded in achieving this object to an extent by establishing mosques and madāris where basic instructions in Islam were given to children and adults. There was a paucity of Muslim scholars and a’immah with good knowledge of Islamic sciences which created difficulties for the community in maintaining Islamic identity in all aspects. Later some persons were sent to Egypt and Makkah for further Islamic studies.

The first Dutch occupation ended in 1795 through British occupation which lasted till 1803 after which the colony came under the Batavian Republic from 1803 – 1806. In 1806 the second British occupation took place which lasted right up till the formation of the Union of South Africa on 31^stMay 1910 when the Union became a Dominium under the British crown.

During Dutch rule Islamic missionary activity and Muslim public worship were banned in the Cape colony by a Placaat ((proclamation) issued by the Dutch East India Company and breaking this law was punishable by death. Stealth had to be used in attending these functions, including the daily salawāt. Some a’immah held private services in their homes while others used a specific part of the house for worship and teaching which were called a langer.

Freedom of Muslim worship and of religion were only granted in 1804 by the Batavian authorities in appreciation of Muslim assistance in fighting the British at Blaauwberg in Table Bay. As a reward, a burial ground was granted to them for the first time on the slopes of Signal Hill which they called the Tana Bāru and by which it’s called to this day.

During the early Dutch period of colonization, no recognition whatsoever was given to the religion Islam and thus no recognition of any Islamic family law was found with all the legal consequences such a ruling may have.

Throughout most of the colonial period, church marriages were the only valid marriages and later both church and civil marriages were lawful.

Thus, in those days, if a Muslim wished to have legitimate children and a lawful wife, in terms of law, he had to embark on a civil marriage the consequences of which were secular law. The vast overwhelming majority of Muslim then married customarily according to sharī`ah at the hands of an imām and in a congregation of Muslim male community members. Usually this occurred in a mosque and always the mosque where the bride’s father was attached to. There was no registration process of any kind of these marriages and thus no official record thereof exists, regretfully. This process is the overwhelming system of Muslim marriages to this day, save that some form of certification is found.

The Muslim community grew through the years but their dynamic growth and influence were hampered by internal bickering and mosque trustee and imām succession disputes. The situation grew so bad that a MP in the Cape colonial parliament, De Roubaix, who was also an honoury consul of the Ottoman Empire in the Cape Colony then, wrote to the Colonial Office in London requesting a learned Ottoman person to be sent to the Cape to solve these religious problems. Through diplomatic procedures, Sultan `Abd al-Hamīd II authorised the sending of the erudite scholar Abū Bakr Effendi-Emjedi, commonly known as Abū Bakr Effendi, to the Cape Colony where he settled in Cape Town. He was a hanafī while the inhabitants were all shāfi`iī which gave rise to further problems as the simple community and their weakly learned a’immah knew nothing beside the shāfi`ī madhhab in jurisprudence matters.

Thus by 1890, both shāfi`ī and hanafī congregations existed in Cape Town due to this unnecessary communal strife which was bad for the unity of the Muslims then but a positive legacy left behind in the mosque buildings which their progeny use till this day.

Partial improvement in the affairs of Muslims occurred when the Muslim Judicial Council (MJC) was formed in Cape Town in 1945.[2] This council began to concern itself with affairs related to the mosques and later in marriage and divorce matters. This was a self formed body which, in legal terms, represents itself as the a’immah were elected by their own congregations. No South African law, then and now, accords it official recognition. A parallel development, similar to Muslim development at the Cape, took place in Natal followed by Transvaal provinces with the arrival of Indians in 1860 and 1870 respectively.

The Jam`iyāt al-`Ulamā’ of Transvaal was formed in 1923 and Jam`iyāt al-`Ulamā’ of Natal was established in 1950.[3]

The Position of South African Law Presently:

Although a Muslim marriage is not recognised in South Africa, family law rules and regulations, as in the laws of the State, apply when such matters are brought to a secular court. Since some Muslims marry also by civil ceremony after a Muslim marriage and since some register their Muslim marriage afterwards, the consequences of South African law negatively affects Muslim life. This means that the role of Islamic Law in such cases are meaningfully diminished.

South African common law is the Roman Dutch law which the British occupiers allowed to operate as common law with an infusion of some British law. State administration and the judicial machinery had to conform to British requirements while the English Law of Evidence was adopted in its entirety.[4]

In South African courts, most reliance is placed on institutional writers in elucidating Roman Dutch law while little use is made of the collection of law opinions that came down. Views of the writers of Holland are preferred. Prevailing opinion holds that the courts must apply Justinian’s law as understood and interpreted by Roman Dutch lawyers of the 18^th century.[5]

The staunch following of Roman-Dutch law by the courts gave rise, at times, to an unfruitful rigidity which two of the eminent jurists remarked on as follows::

“ …it still remains true that effectively a reasonable adaptation to the ever-changing needs of a society in constant movement is a task the courts cannot shirk…With the greatest humility, one cannot help feeling that, in their endeavour to avoid pitfalls of policy-making, our courts have occasionally erred on the other side by dealing with cases that came before them as if they were abstract exercises in history, logic or semantics…”[6]

This was the attitude of the courts during apartheid days.

Islamic Family Law Operation in South Africa:

As pointed out previously, Muslims from many different ethnic groups and races settled in the Cape colony.

South Africa only came into existence on 31^st May 1910. Prior to that, four colonies existed which were the Cape colony, Natal colony, colony of the Orange Free State and colony of Transvaal[7]. Transvaal and Natal have a majority of Indian Muslims while the Eastern and Western Cape have a predominant majority of SE Asian and Arab descent. Some of Cape Muslims married into a huge number of ethnic groupings and their surnames indicate this. The Indian Muslims married among themselves and even within their own tribal affiliations, a phenomenon that still exists to this present day. Right up to the 1960’s marriage between Cape Muslims and Indian Muslims, even those living at the Cape, was rare. There had been a change in the last 40 years in this unfortunate situation but not on a large scale.

Prior to 1945, in the Cape, Islamic family law was a private community affair at most. Community registration of marriages was only started in the 1950’s or thereabout by Muslims themselves. No record exists of any mosque in Cape Town who kept a register of its marriages and as such none is to be found in the Cape Government Archives records. The understanding here was that, by sharī`ah standards, a Muslim marriage existed by the process followed and, above all, the parties were married in the sight of Allāh which to all Muslims, mattered most. Most a’immah coult not read or write English. What they wrote was in either Malayu or in Dutch using the Arabic script with which they were conversant.

The legislative position of Muslim marriages and its consequences in the South African era up to 1994, gives an insight to the thinking and policy application of the minority governing authority.

This process is clearly reflected in the celebrated case of Seedat vs The Master (Natal)[8] where the presiding judge said in matter of a Muslim marriage:

“…and even if such a union was entered into abroad and is recognised as a valid marriage in terms of the lex loci celebrationis or the lex domicilii, it will not be recognised in South Africa.”

In fact, this judicial thinking is already found as early a 1860 in the case Brown vs Fritz Brown’s Executors & Others (1860 3 Earle 313 at 318) where a Muslim marriage is described as “recognised concubinage”.[9]

These positions were, later, not applicable in toto as there were certain statutory exceptions such as part of the Insolvency Act, Act 24 of 1936 which reads:

:”In this section the word “spouse” means not only a wife or husband in a legal sense, but also a wife or husband by virtue of a marriage according to any law or custom, and also a woman living with a man as his wife or a man living with a woman as her husband, although not married to one another”.,

This clause recognizes immoral unions, which is against Christian principles, for purposes of the mentioned Act.

A part of the Income Tax Act, Act 58 of 1962 reads:

“…married includes joined together in union recognised as a marriage in accordance with any law or custom and “husband” and “wife” shall be construed accordingly.”

This Act, of course, has to do with money exacted from you for tax purposes.

Further, Muslims were stricter discriminated against even more than indigenous people in apartheid South Africa in that the customary indigenous marriage was considered valid, under certain circumstances, in terms of law.

The Black Laws Amendment Act, Act 76 of 1973 gives the right to a partner in an indigenous customary union to claim damages from a person unlawfully causing death of the other partner.[10]

The Evidence Amendment Act, Act 45 of 1988 reads in part:…”provided further that it shall not be lawful for any court to declare that the custom of lobola and bogati or other similar custom is repugnant to such principles.”[11]

This clause requires the court to take judicial notice of indigenous customary law, provided that the particular rule of customary law is not to be applied where it is opposed to the principles of public policy or natural justice. Nevertheless , the custom of lobola and other similar customs are not to be regarded as repugnant to these principles.

The former Child Care Act states that:

“In the application of the provision of this Chapter, in respect of a person who is Black, any “customary union” as defined in section 35 of the Black Administration Act, Act 38 of 1927, shall be deemed to be a marriage between the persons concerned, and any other reference to a husband , wife, widower, widow, divorced person, married person or spouse shall be so construed accordingly.”[12]

This clause recognised an indigenous customary union for the purpose of adoption.

Recognition was also granted to the widow of an indigenous customary union in the Workmen’s Compensation Act of 1941 which states that: “For purposes of this Act, “widow” includes a woman who was a participant in a customary union according to indigenous law and custom, where neither of the man or woman was a party to a subsisting marriage.”[13]

Case Law Positions of Muslim Marriages:

As stated previously, the Seedat case in Natal was the basis on which all future issues of Muslim marriages and its consequences would be based. The issue of “potential polygamy” of a Muslim marriage was applied to all Muslim marriages including those that were de facto monogamous marriages.

The most famous pre-1994 Muslim marriage case was that of Ismail vs Ismail[14] The question the court had to answer was whether the customary proprietary consequences of a Muslim marriage and its termination were enforceable by law.

The decision reached by the court was that the solemnization, payment of dowry, giving of engagement and wedding gifts, duty to pay maintenance, the manner of termination and annulment of a Muslim marriage, the proprietary consequences of the marriage and the adjudication by the Muslim religious leader of proprietary disputes, were all governed by custom.

The person who married the couple (in this kind of customary marriage) need not be a marriage officer in terms of the Marriage Act, Act 25 of 1961. There was also no State participation in the performing of the marriage.

The judgment of the court was that:

· Potential polygamy is tantamount to polygamy. Any agreement (tacit or otherwise) between the parties cannot alter this.

· The said marriage was not solemnized per the requirements of Section 2, 3 and 11 of the Marriage Act, Act 25 of 1961, nor did the parties comply with the requirements of Section 29(2) of the mentioned Act which requires both parties to be present at the wedding ceremony.

· The customs and contracts between the parties are closely and intimately connected with the conjugal union entered into in terms of the Islamic Law.

· Polygamous unions have never been recognised in South African courts.

The effective ruling of the court was, thus, that a Muslim marriage is void in law and has no legal consequences.

Other South African cases in this sphere are:

· Bam vs Bhabha[15]

This case, decided in the then Appeal Court of South Africa, concerned the custody of minor children in a Muslim marriage. The decision reached was based on the principle that a Muslim marriage is invalid in law and as such has no binding consequences. It should be noted that the majority of judges found it unnecessary to decide whether there had been a putative marriage between the parties, for, had there been such a marriage, the children born from it would be legitimate in terms of law.

Davids vs Master & Others[16]

In this case the court was asked whether the word “spouse” in Section 49 (1) of Act 66, Administration of Estates Act of 1965 includes a woman married in terms of the Islamic Law only. The court followed the decision of the Seedat case.

The State vs Johardien:[17]

In this case the Cape Supreme Court had to pronounce whether a woman married according to Muslim Rites could enforce privilege as in Section 198 of the Criminal Procedure Act, Act 51 of 1977. This section deals with the privilege of spouses in respect of marital communications in criminal proceedings. The wife of the accused, so married to him only by Muslim Rites, wished to avail herself of the privilege as in the Act. The court found that although a de facto monogamous marriage was found, the priest who married them was not a marriage officer in terms of the Marriage Act of 1961. The judge said “if the wife is not de jure, the wife or husband cannot claim privilege under Section 198 (1) of the mentioned Act.

The main legislative institutions of pre-1994 South Africa, which had their hands in and on Muslim marriages and its consequences, exhibited an unpalatable indifference herein with the judiciary having a marked opposition to anything which the Roman Dutch law could not tolerate or accept.

The common judiciary refrain that even if a Muslim marriage is monogamous, it is “potentially polygamous” and as such is equated to an actual polygamous union, is no only absurd but patently unjust and unfair.

The other refrain that a Muslim marriage is against public policy is also ludicrous. The court turned a blind eye to social immorality in the country then where married persons indulged in sexual sins whilst being married.

The courts failed to understand its function in a plural, multicultural and multi-ethnic society and in the end ended up in ruling uncompromisingly and semantically in its judgments. It had, by its own choice, failed to be innovative and above all, it failed to be the protector of a minority, its human rights and dignity.

Many Muslim persons, judicial bodies and organisations, among them the Jam`iyāt of both Transvaal and Natal, Waterval Islamic Institute, The Institute of Islamic Shari`ah Studies, Professors SS Nadvi and the late SH Haqq Nadvi, among others, all petitioned the South African Law Commission at various times for the recognition of Muslim marriages and its consequences.[18]

The Position of a Muslim Marriage Presently:

It can be justifiably said that South Africa entered a new era of breathtaking fundamental change with the unbanning of the ANC and other political organisations in February 1990 and the later release of Nelson Mandela and other senior political prisoners.

The road to a new interim constitution and arrangements were tortuous and fraught with danger from the Groote Schuur Minute on 4^th May 1990 in Cape Town up to the Codesa talks and interim constitution[19] it produced and which was assented to by the last white president of South Africa, FW De Klerk on 25^th January 1994 and which commenced taking effect, overall, on 27^th April 1994.

Dr Nelson Mandela, the first indigenous president of South Africa, said in a public address to Muslims in Cape Town that “We (ANC) regard it highly insensible and arrogant that the culture of other groups can be disregarded. The ANC had pledged itself to recognizing Muslim Personal Law”.[20] He did not explain the relation between religion and State, the place of religion and how Muslim Personal Law will be recognised.

General Muslim euphoria over the proposed recognition of Muslim Personal Law, virtually obliterated the necessary qualifications required for that statement to have proper Islamic application in a sharī`ah context. Even the Muslim religious leaders were carried away by the statement.

The new constitutional process in South Africa had three stages. The first was an interim constitution agreed on by all political parties to negotiations at Codesa, followed by a general election for its adoption. Thereafter, a constitutional assembly, which was parliament, had to approve the new constitution. This constitution[21], was adopted by parliament only and is the present constitution of South Africa.

The interim constitution of the new South Africa stated that: “Noting in this chapter shall preclude legislation recognizing a system of personal and family law adhered to by persons professing a particular religion, and the validity of marriages concluded under a system of religious law subject to specified procedures.”[22] It should be noted that the first democratic elections were held on the basis of the interim constitution, Act 200 of 1993. The mentioned clause gave hope to Muslims that the past will now be obliterated and a new fair system would be put in place for their Muslim Personal law.

The new working draft of the new constitution fundamentally changed this and included in the mentioned clause the words: “other recognised traditions” as valid personal law systems as well as restricting all religious and customary personal law systems to be consistent with the Bill of Rights[23].

There was no doubt that the interim constitution applied vertically i.e. between the State and its citizens, it was unclear whether it would also apply horizontally i.e. between individuals also. The working draft of the new constitution required it to apply both ways. This will cause serious problems for the functioning of Muslim Personal law as the constituent assembly which drew up the new draft constitution recommended imposing secular western liberal law on all regardless.

Only the parliament which was elected under the interim constitution by universal suffrage could approve the new constitution – individuals or groups had no say therein.

Once again Muslim aspirations had been dampened, but this time by a universally elected democratic parliament.

In the 1980’s the waning minority government instructed the South African Law Commission to study how certain aspects of Islamic marriages can be incorporated into South African law. The said Commission stated: “The object of this investigation is to determine the extent to which provision can be made in South African law for recognition of rules of Islamic Law relating to marriage, matrimonial property, succession, guardianship and related aspects of family law.”[24] The timing was obvious. The minority government was in its last days and this was an obvious political act. If it was honest, it could have acted long before the social upheavals in the country. The new ANC had the Commission continue with its work it inherited from the previous administration.

The SA Law Reform Commission,[25] in the new constitutional dispensation, was chaired then by Madame Justice Mokgoro and the Islamic marriages project committee was chaired by Justice MS Navsa. This eight person committee had only three persons on it with Islamic Law knowledge and it appeared obvious what it would recommend in the end.

In July 2003, the SA Law Commission issued its report on Islamic Marriages and Related Matters with a draft Bill called the Islamic Marriages Act[26]. It was handed to the Minister of Justice and to date no Bill had passed through parliament yet. A law legalizing indigenous customary marriages, however, had been passed by parliament as Act 120 of 1998 and was gazetted on 2^nd December 1998[27] and is operable from that date throughout South Africa.

In the absence of a proper statute for Muslim Personal Law, the legal position of Muslim women in particular is problematic. Unlike the parties to an indigenous customary marriage, disadvantaged Muslim wives, in the new constitutional dispensation, had to resort to expensive and painful court procedures to procure their Islamic right in Muslim marriage consequences.

The most celebrated case in this matter is that of Amod vs Multilateral Motor Vehicle Accidents Fund[28] where the widow in a monogamous Muslim marriage was declared by the court to be due for support and as such her claim for loss of support was to be upheld “in the context of the common law dependant’s remedy”.[29]

Other cases, in this vein, were all ruled on positively in claims of Muslim wives/widows on the grounds that a monogamous union was found. It is perhaps reasonable to deduct that in the case of a polygynous Muslim marriage, the court may not reach the same decision. However, it is difficult to conceive that it would do so in the light of the Customary Marriages law of indigenous people who may have unlimited polygyny[30]. The only encumbrance is that the court must regulate the matrimonial property of each polygynous union.[31] However, a Muslim marriage is still invalid at law and the parties are not lawfully husband and wife.

Some Important Recommendations Made by the Law Commission:

The Commission made several recommendations, some of which clash with the known Islamic Law concept of the specific issue. Much can be reconciled with Islamic Law concepts.

1. It has a fairly wide definition of terms used in the Bill which shows a foreign family law coming within the orbit of South African law.[32]

2. Section 2 makes provision for the application the Act including the option for those married by Islamic law only prior to the Act to be excluded from the provisions of the Act. It also requires that a required pattern be followed in this process.[33] It further allows parties who were married also in community of property (COP) or by Ante nuptial contract (ANC) to have the terms of this Act apply to them but all vested proprietary rights arising from the said marriages shall remain intact.[34]

3. It will be a requirement that both parents must consent to the marriage of their minor child.[35]

4. Marriage contracted under the Act must be registered and rules are set out for marriage officers in conducting a marriage as well as other aspects of registration including imposition of courts to register a Muslim marriage on application of any of the spouses as well as cancellation or rectification of any registration of a Muslim marriage.[36]

5. Marriage age is restricted to 18 years for both parties.[37]

6. A Muslim marriage contracted under the Act will be automatically out of community of property and excluding the accrual system unless contractually agreed otherwise by the parties.[38] Spouses married in terms of this Act may apply jointly to the court for a change in their matrimonial property system and the court may change it subject to certain listed conditions, among them prohibiting any other person being prejudiced by such a change.[39] Provision is made for other spouses in a polygynous Muslim marriage whether only Islamic marriages or even a civil marriage to be joined in proceedings in matters of a proprietary nature.[40]

7. Further Muslim marriages under the Act can only take place by application to the court where conditions of wide consequences are imposed for such marriages.[41]

8. In matters of the termination of a Muslim marriage in terms of the Act, Section 2 of the South African Divorce Act shall apply.[42]

The only reason for a marriage to end in divorce in South Africa is irretrievable breakdown of the marriage. Even adultery itself is not a reason for a divorce to be granted. It must cause an irretrievable breakdown in the marriage.

Most of the provisions made can be regulated by an antenuptial contract subject to it not being repugnant to the Bill of Rights in the constitution or any law.

Issues such as limiting the grounds for divorce and granting only the secular High Court the right to grant divorces legally, have met with opposition from some `ulamā’ bodies which has also caused a hiatus in the process of recognition.

These bodies and other Muslim institutions have asked for sharī`ah courts presided over by competent Muslim jurists for the administration of Muslim Personal Law. This was refused by the Law Commission on grounds of costs and impermissibility of having separate judicial institutions for different religious groups.[43]

An innovative issue in the administration of Muslim Personal Law is the recognition by the Law Reform Commission of South Africa that a Nonmuslim judge cannot pronounce judgment on a Muslim law issue singularly. In this regard the Commission recommended that two Muslim persons with knowledge of Muslim Personal law sit as assessors with the presiding judge and they “would have the power, together with the judge, to determine disputes of act and law, and the decision of the majority shall represent a decision of the court.”[44]

It should be remembered that the recommendations the Commission made have to be produced as a Bill for the national parliament and parliament may decide how to alter the Bill. This is the first case where assessors may overrule a judge of the High Court. There is, to my knowledge, no such judicial precedent in South African judicial history.

One may wonder how the judiciary and bar councils of law will react to such a law if passed.

This is how far the official recognition of Muslim Personal Law got in South Africa. The next move will have to come from the authorities.

Finally, it is to the distinguished credit of Islām that it recognised absolute plural rights of all forms of family and personal laws of communities, under its jurisdiction, as an unalienable right in which the Islamic State and authorities have no right nor jurisdiction whatsoever. This law is over1400 years old. Thus, to this day, in Muslim countries, Nonmuslims conduct their family and personal laws according to their own communities’ values, rules and regulations and in some of them, even according to the sect of their denomination.

This practice is derived from the Qur’ān[45] where compulsion in religion is prohibited permanently.

This is not the case of Nonmuslim majority States with Muslim minorities. This is an issue Muslim majority countries have not taken up in unison with such Nonmuslim countries.

This is not the case when the situation is reversed. Muslim minorities have no unalienable right to recognition of their family and personal laws. It’s a privilege which may be granted or not.

It is argued in some Nonmuslim countries that to separate different family and personal laws will tantamount to apartheid. I come from a country where it was practiced in front of my eyes. Apartheid is the control, suppression and oppression of the privileged minority over a disenfranchised and disadvantaged majority. Actual human discrimination and denial of rights are central to apartheid.

Thank you once again for inviting me to address you and patiently listening to me. I trust I have done justice to the topic and that it had been informative.

Wassalāmu `alaikum.

SHAIKH Dr A K TOFFAR

Dean

Faculty of Islamic Studies

International Peace University of South Africa

Rylands Estate

Western Cape

South Africa

Presented at:

Ahmad Ibrāhīm College of Islamic Laws

International Islamic University of Malaysia

Kuala Lumpur

Malaysia

02^nd July 2008

[1] Davids A: Mosques of Bo-Kaap, Cape Town: Institute of Arabic and Islamic Research, 1980, Foreword p xv.

[3] Mahida E M: History of Muslims in South Africa – A Chronology, Durban: Arabic circle, 1993, pp 56 – 58 & pp 70 – 71.

[4] Hahlo & Kahn: The South African Legal System and Its Background, Cape Town: Juta & Co., 1973, p. 571.

[5] The South African Legal system and Its Background, pp. 579 – 581.

[7] The new South African constitution of 1996 has made other divisions of the four province of Union. The Cape is now divided into the Western Cape, Northern Cape and Eastern Cape provinces, Transvaal is now divided into Gauteng, Limpopo, Mpumalanga and Northwest provinces while Natal is renamed KwaZulu-Natal and the Orange Free State renamed as Free State. Each province has its own provincial parliament, cabinet and premier

[8] Seedat’s Executors vs The Master (Naal) 1917.

[9] Report on Islamic Marriages & Related Matters, pp. 5 - 6

[10] Black Laws Amendment Act, Act 76 of 1973, Section 31.

[11] Evidence Law Amendment Act, Act 45 of 1988, Clause 1.

[12] Child Care Act, Act 74 of 1983, Chapter 4, Clause 27.

[13] Workmen’s Compensation Act, Act 30 of 1941.

[16] Davids vs Master & Others 1983 (1) 458 [C].

[17] The State vs Johardien 1990 (1) SA 1026 [C]

[18] South African Law Commission: Notes and Appendages, Pretoria: Ref: 7/2/1/59 dated 07/07/1993.

[19] Constitution of the Republic of South Africa, Act 20 of 1993.

[20] Muslim Views, Cape Town, March 1991. Vol 5 No. 2 p. 3.

[21] Constitution of the Republic of South Africa, Act 108 of 1996.

[22] Act 200 of 1993, Chapter 3, Clause 3(a)(b).

[23] Working Draft of the New Constitution, Chapter 2, Clause 3.

[24] The South African Law Commission: Ninetenth Annual Report- 1991 , Pretoria, Government Printer, p. 31 (Project 59).

[25] The previous name was South African Law Commission.

[26] South African Reform Law Commission: Report on Islamic Marriages & Related Matters, Pretoria, July 2003, Project 106.

[27] Government Gazette No: 19539 of 02/12/1998.

[29] Report on Islamic Marriages & Related Matters, pp 5 - 6

[36] Report on Muslim Marriages & Related Matters, Section 6

[41] Ibid Section 8(a)(6)(7)(8)(9)(10)(11)(12).

[43] Report on Islamic Marriages & Related Matters, p 7.