Judgment Reserved In Muslim Marriages Case

daveza said:
SA Constitution -

Everyone is equal before the law

ie one law for all, no exceptions based on religion.
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The law is something that's flexible and is allowed to change to accomodate new circumstances, including exceptions for religion.

The constitution allows freedom of practicing religion, which doesn't necessarily have to do anything with the law.

BUT it also does not prevent legislation which recognises aspects of religion

(3) (a) This section does not prevent legislation recognising—
(i) marriages concluded under any tradition, or a system of
religious, personal or family law; or
(ii) systems of personal and family law under any tradition, or adhered to by
persons professing a particular religion.

(b) Recognition in terms of paragraph (a) must be consistent with this section and
the other provisions of the Constitution.
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I'm guessing the whole recognition of Muslim marriages case is with regard to point b then.

So while everyone is equal before the law, the law is always something that can be changed to accomodate cultures and religion.
 
ponder said:
When there are exceptions for some how are we all equal under the law?
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I don't think that the law will ever be true implementation of equality because of our diversity. There's concepts that we will always disagree on and even our notion of what's meant by equal can even be different on some of them. Simple example is how women are viewed between every african culture, religion, non religion is different.

The SA law, as a concept, seems to have the goal of equality for all but in practice one can only really get so some abstract base of equality before diversity sets in. Just the reality I see if someone is looking for true equality from the law
 
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smb3 said:
So while everyone is equal before the law, the law is always something that can be changed to accomodate cultures and religion.
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When you start creating exceptions for groups of people you are treating them differently under the law thus there is no equality.

If I as a witoke married 5 woman we would not have the marriages recognised and it will not be treated the same as say black people or muslims(if this passes).
 
ponder said:
When you start creating exceptions for groups of people you are treating them differently under the law thus there is no equality.

If I as a witoke married 5 woman we would not have the marriages recognised and it will not be treated the same as say black people or muslims(if this passes).
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Marriage Act already covers most of your customs I presume (Roman-Dutch Law?)?
 
ponder said:
And if I wan't to marry 5 wives? How does the law cater for me? Or how bout I identify as mormon for example?
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Nothing stops you going customary and marrying as many wives as will agree to it. A black guy like you can't go and marry more than 1 wife unless he's doing under customary law. But nothing says you have to be black or muslim to take advantage of it should you so wish.
 
R13... said:
Nothing stops you going customary and marrying as many wives as will agree to it. A black guy like you can't go and marry more than 1 wife unless he's doing under customary law. But nothing says you have to be black or muslim to take advantage of it should you so wish.
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Only African cultural marriages count:

In South Africa, the definition of a customary marriage is one that is “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa”. This does not include marriages concluded in accordance with Hindu, Muslim or other religious rites.
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http://www.home-affairs.gov.za/index.php/civic-services/marriage-certificates

I suppose that you don't need to be black, but would need to convince a traditional African priest to marry you.
 
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The solution is so simple. All the husband has to do is draw up a Will and state who his wife(s) is/are and that they’re married according to Muslim Customary Law and his Estate should be divided according to Shariah. Problem solved.
 
Warner said:
The solution is so simple. All the husband has to do is draw up a Will and state who his wife(s) is/are and that they’re married according to Muslim Customary Law and his Estate should be divided according to Shariah. Problem solved.
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I think the problem in these instances are deadbeat dads that will deny they are married and try to deny the wife and kids what they are due. They'll claim they have no marriage cos the Islamic marriage is not recognised
 
Suspect99 said:
I think the problem in these instances are deadbeat dads that will deny they are married and try to deny the wife and kids what they are due. They'll claim they have no marriage cos the Islamic marriage is not recognised
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And that’s why I’m saying the wife should insist on a Will or ANC to register her rights to the Estate of the husband.
 
Warner said:
And that’s why I’m saying the wife should insist on a Will or ANC to register her rights to the Estate of the husband.
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People in such unions including African are socialized to accept the minimized arrangements where the family of the husband take everything in case of his demise. But if they're smart they're free to sue and will always win in court.
 
R13... said:
People in such unions including African are socialized to accept the minimized arrangements where the family of the husband take everything in case of his demise. But if they're smart they're free to sue and will always win in court.
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Ordinarily, customary law dictates that property belongs to both the husband and wife once wedding rituals have been performed. In situations where the husband dies before the wife, property is inherited by the wife. It's the wife's sole discretion whether she wants to share some with family members (this is still the case in many rural villages)

Of course greed has taken over and customary law twisted to suit certain individuals.
 
ForceFate said:
Ordinarily, customary law dictates that property belongs to both the husband and wife once wedding rituals have been performed. In situations where the husband dies before the wife, property is inherited by the wife. It's the wife's sole discretion whether she wants to share some with family members (this is still the case in many rural villages)

Of course greed has taken over and customary law twisted to suit certain individuals.
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Yes relatives tend to make surviving wife's life difficult enough that she cedes everything to them. What the law decrees tends to be ignored if they think the wife won't fight.
 
R13... said:
Yes relatives tend to make surviving wife's life difficult enough that she cedes everything to them. What the law decrees tends to be ignored if they think the wife won't fight.
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+1
 
smb3 said:
The law is something that's flexible and is allowed to change to accomodate new circumstances, including exceptions for religion.
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Section 31 concludes with the following limitation “The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights
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And the Bill of Rights says everyone is equal under the law.
 
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