POINT-BY-POINT REFUTATION OF THE STATEMENT RELEASED BY UUCSA
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POINT-BY-POINT REFUTATION OF THE STATEMENT RELEASED BY UUCSA
 
1. UUCSA Statement: Why has UUCSA gone to the Constitutional Court? UUCSA is neither an applicant nor respondent in the matter. The Women’s Legal Centre went to court to have Muslim marriages recognised. Our role is simply to offer a perspective for the consideration of the Constitutional Court. Our function as amicus is to protect the interests of Islam and Muslims and to preserve the Shariah.
 
Response: This statement is highly misleading and bordering on dishonesty.
The “perspective” offered by UUCSA was to submit a full-throated support of the Women’s Legal Centre application. UUCSA need not be reminded that the WLC is a feminist body with a feminist agenda that has openly expressed a desire to mutate the Shariah to conform with the secular constitution. UUCSA’s joining as friends of the court and making submissions that lend credence to the WLC position means that it is neither protecting the Shariah nor promoting Islam. Rather, it is effectively promoting a feminist mutation of the Shariah and seeking to deceive the public with nonsensical justifications that do not align with its court submissions.
 
2. UUCSA Statement: What is the hearing at the Constitutional Court about? The central issue in the Constitutional Court hearing is to determine whether or not the Constitution places an obligation on the State to adopt legislation recognizing Muslim marriages and their consequences. The hearing is not about the MPL Bill; it is not about laws pertaining to nikaah and Talaq. The hearing therefore has nothing to do with the Muslim Marriages Bill. The dynamics have changed because of the Supreme Court of Appeal ruling. MPL is no longer an option.
 
Response: It would have been far better for UUCSA to remain silent than to expose what is, at best, an ignorance of its own court submissions and, at worst, a brazen attempt at misleading the public.
The application most certainly relates to legislation that will govern Muslim marriages, regardless of whether the descriptive acronym is “MPL” or “MMB” or anything else. This application seeks to compel parliament to promulgate a law that will govern Muslim marriages and will most likely result in the old draft MMB being revived in some form or the other. The far better approach would have been for UUCSA to oppose the WLC application by highlighting the risks of the Sharia being mutated by being subject to constitutional litigation, most pertinently the right to equality. By failing to mention this or highlight this to the public, UUCSA’s motives are extremely suspicious, particularly given the lack of consultation with all stakeholders in the Muslim community.
 
3. UUCSA Statement: Is it not wiser to simply abstain from getting involved? We no longer have the luxury of debating whether we want our marriages regulated or not. The Courts have already decided and settled this matter. The Courts have given government 24 months to recognize Muslim marriages and their consequences by either amending existing legislation or passing new legislation, following the declaration of constitutional invalidity of the Marriage Act and the Divorce Act. The Courts have also ruled that in the interim, the Divorce Act will apply to all Muslim marriages. The harsh reality is that the interim relief may become the default position for a long period of time if government drags its feet in amending existing legislation.
 
Response: This is another regrettable red herring. It is also unclear what UUCSA is trying to communicate here as it makes no legal sense. Perhaps UUCSA should have asked a qualified lawyer to check the statement before using big words like “constitutional invalidity”. Nevertheless, by way of explanation, the position is simple. Whether now or in the past, any individual is and was free to approach a court for relief. While there was piecemeal recognition of Muslim marriages, this did not construe a wholesale interference with Islamic family law or family life. The application brought by the WLC seeks exactly that i.e. the recognition of an omnibus marriage act that will be subject to constitutional attack. This is NOT the position currently. It is obvious that the latter position will leave Muslims in a worse off position, which is why UUCSA’s support of the WLC application is extremely perplexing - a case of turkeys cheering for Christmas?
 
4. UUCSA Statement: If our Muslim marriages (nikaah) and divorces fall within the ambit of the Divorce Act, the courts will:
• In the case of a divorce and in the absence of an agreement between husband and wife, decide how the assets between husband and wife will be distributed;
• The wife will be able to claim for maintenance beyond the iddah period;
• A wealthy wife will be obliged to provide maintenance for her destitute husband in the event of a divorce, and,
• The court may make an order that the one party forfeits the assets which would have been acquired by him/her as a result of marriage in community of property either wholly or in part, based on certain criterion.
We cannot allow the state to compel Muslims to follow secular law. If we sit back and do not actively work towards preserving the interest of Muslims, we will be forced to regulate our marriages and divorces according to the law of the country.
 
Response: In a statement filled with red herrings and deceptive statements, this is probably the most egregious. As mentioned, above, while individuals within the Muslim community who did not fear Allah have always been free to approach the courts for relief, and while this resulted in piecemeal recognition of certain aspects of Islamic family law, this never constituted comprehensive recognition of Islamic shariah in the manner envisaged by the WLC application. We have already mentioned the risks of such recognition and the vulnerability of constitutional attack (which UUCSA conveniently ignores). The promulgation of such legislation will most certainly result in Muslims being compelled to follow secular law, as the constitution is the supreme law that the MMB will be subordinate to. Hence, this defeats the entire stated purpose of the UUCSA position. It would have been far more productive for UUCSA to have opposed the application, failing which Muslims could have been advised to work on other creative mechanisms to avoid the oppressive reach of any such legislation e.g. by entering into contractual “life partnership” agreements that enshrined the Sharia provisions.
Conclusion: At best, UUCSA have been poorly advised and at worst they are wholeheartedly supporting the destruction of Islamic family life in South Africa. UUCSA’s failure to consult widely with all stakeholders, their obstinacy and stonewalling of alternative viewpoints and adoption of a destructive path that will sacrifice Islamic family law in South Africa at the altar of a feminist agenda casts into question their qualification to act as the custodians and leadership of our Muslim community. Releasing poorly drafted and deceptive “Explainer” notices merely expose the gap between the “leadership” and those they claim to lead.