THE INVESTIGATION INTO ISLAMIC MARRIAGES AND RELATED MATTERS

Issued by: Government Communication (GCIS)

The object of the investigation into Islamic marriages and related matters is to determine the extent to which provision can be made in South Africa law for the recognition of the Islamic law on marriage, matrimonial property, succession, guardianship and other aspects of family law and the law of persons.

A project committee established for the purpose of the investigation met in 1990 and considered a working paper dealing with the nature of Islamic law and the conflict between the common law and Islamic law as well as the observance of Islamic law in South Africa. A comparative legal study received further attention during the year. Further work on the investigation was delayed by several considerations, amongst which was the finalisation of the 1996 Constitution.

Section 15(1) of the Constitution guarantees everyone the right to freedom of conscience, religion, thought, belief and opinion. Section 15 (3) allows for legislation recognition marriages concluded under any religious or indigenous tradition and moreover acknowledges the right of communities to follow their own personal family law, whether such law is based on tradition or religion. Such recognition is subject only to the requirement that it should be consistent with the Constitution.

The Commission reconsidered the status of the project in 1996 and decided to accord the investigation a high priority rating and to recommend the appointment of a new project committee.

In March 1997 two workshops were held in order to involve the public in the planning of the investigation and to elicit nominations for appointment to the project committee. As a result of advertisements in the press and the open invitation extended at the workshops 78 nominations were received. The Commission considered the nominations and ecommended suitable persons for appointment by the Minister of Justice. However, since the nominations were submitted to the Minister, one of the nominees, Ms Soraya Bosch, tragically died and another nominee, Ms Noorronihaar Mintin, withdrew her candidacy for health reasons.

On 3 March 1999 the Minister of Justice appointed the following persons as members of the project committee for the investigation into the recognition of Islamic marriages and related matters:

• Judge M S Navsa (Project leader)
• Dr Najma Moosa (Lecturer, Faculty of Law, UWC)
• Sheikh Ebrahim Essop (Darul Waqaf Islamic Trust, Port Elizabeth)
• Sheikh Mogamad Faaik Gamieldien (Muslim Judicial Council - Cape)
• Moulana Abbas Ali Jeena (United Ulama Council, Erasmia)
• Ms Farida Mahomed (Member of Parliament)
• Dr R A M Salojee (Member of Parliament)
• Mr M S Omar (Practising attorney, Durban; United Ulama Council)

ISSUED BY THE SECRETARY, SOUTH AFRICAN LAW COMMISSION, PRETORIA

CONTACT PERSON FOR ENQUIRIES IN RESPECT OF MEDIA STATEMENT:

MR M F PALUMBO: TEL: (012) 3322-0061

FAX: (012) 320-0936

7 May 1999