The legal developments in the Muslim community in South Africa are a true testament to the power of advocacy and perseverance. Al jama-ah is excited to share the hard-fought victory for women and children in Muslim communities, and rightly so.
For many years, Muslim marriages in South Africa were not recognized by the country’s law systems, causing significant discrimination against the Muslim community. The Divorce Act of 1979 explicitly excluded Muslim marriages, which led to Muslim couples facing various obstacles with ending their marriages, such as seeking court protection orders, financial support, and custody of children.
The exclusion of Muslim marriages from the country’s legal system also deprived many Muslim women of their rights during marriage and divorce, such as property rights and maintenance. However, with the recent proposed amendments, the country is taking significant steps towards undoing this injustice and protecting the rights of Muslim couples and their families.
The amendments pushed by AL JAMA-AH to the Divorce Act remove discrimination and hardship for children born in a nikah marriage and wives facing talaq.
The Al Jama-Ah political party introduced two private member bills in late 2022, pushing for further changes to divorce and marriage laws. Mogamad Ganief Hendricks, the leader of the party, noted that without such changes, countless Muslim marriages and families would continue to suffer.
Amongst other crucial areas of amendments, clause one of the amendments is an insertion of a new definition of Muslim marriage recognised by the Constitutional Court Judgment to be part of South Africa’s common law. Clause 2 amends section 6 of the Divorce Act by providing safeguarding mechanisms for minors or dependents of a Muslim Marriage. Clause three of the bill amends section 7 of the Divorce Act by empowering a court to grant a divorce decree on the dissolution of a Muslim marriage to make an order regarding the redistribution of assets. Further, clause four amends section 9 of the Divorce Act to empower a court when granting a divorce, a decree on the dissolution of a Muslim marriage to give an order that patrimonial benefits of a Muslim marriage be forfeited in stipulated terms
Al Jama-ah received a mandate from its voters in the 2019 national elections to submit private members’ Bills to get the Legislature to recognize Shariah personal law and a correct definition of a Shariah marriage. The efforts of the party’s single member of Parliament and party leader have borne fruits, and Al Jama-ah has emerged as one of the foremost voices in protecting the legal rights of Muslim marriages in a predominantly Christian society.
For centuries, Muslim women in South Africa have been subjected to abuse when it comes to their rights in getting married and, even more so, in the case of divorce. The amendments to the Divorce Act bring issues of freedom, justice, and equal rights to Muslim women—an incredibly significant victory in a predominantly non-Muslim society.
It is crucial to note that the 1994 democracy in South Africa has opened doors to accommodate all cultures and religions, as evidenced by the acceptance of the Muslim marriage bill—a bill that had not been recognized for 350 years. Women in a nikah can now approach the Divorce Court for their rights in terms of Shariah, and children born out of nikah now have the support of the Family Advocate.
Some key consequences of these amendments include the ability of the office of the family advocate to assist with the investigation and welfare and the best interest of minor children, ensuring that children born of Muslim marriage and their parents no longer suffer from inconsistencies and prejudice as they did under the previous Act. These developments have provided the Muslim community in South Africa with a significant legal victory that will undoubtedly go down in history.
The progress made by Honourable Hendricks and Al Jama-ah is especially significant when considering the parlous state of human rights in the world, including South Africa. The Muslim electorate has placed their trust in him and his party to represent their needs, and he has fulfilled his mandate as their mouthpiece in Parliament.
Fighting for the rights of people is in the Honourable Hendricks’ blood – he comes from a family deeply involved in the struggle for a better country. When the sound of bullets echoed from Sharpville on March 21, 1960, it was necessary for the Muslim community to rise from the ashes. Qiblah, under the leadership of Imam Achmat Cassiem, rose to the occasion, followed by the South African Muslim Students Association, where Ganief Hendricks was a founding member.
Not to forget the Muslim Youth Movement and the Call of Islam, headed by Ambassador Ebrahim Rasool, Ganief Hendricks was the forerunner of non-collaboration with the old regime, a philosophy he implanted in the hearts of many Muslims. Inspired by the late Imam Haroon, who was brutally murdered in detention, it was obvious that Honourable Ganief Hendricks was left with no choice but to enlighten the youth of the struggle to a point of no return.
After many smaller Muslim communities tried to establish a Muslim political party, Ganief realized the importance of a genuine Muslim voice and established the Al Jamaah political party. The party has become a strong advocate for the rights of Muslim communities, fighting against discrimination and bias in a predominantly non-Muslim society.
In conclusion, the legal developments in the Muslim community in South Africa are a significant milestone in the fight for human rights. Treasure Media stands with women’s liberation and empowerment and aims to highlight and celebrate the contributions and challenges faced by Muslim women in a predominantly non-Muslim society. The legal victory for women and children in Muslim communities should be lauded and celebrated not only in South Africa but globally
Image: Lawyers at work: Al Jama-ah’s legal team consulted with Hon Ganief Hendricks on the Registration of Muslim Marriages. Ahmed Azhar Allie
(intern), Hon Ganief Hendricks (Al Jamah-ah MP and leader), Adv Anton van Loggerenberg, Adv Yusuf Khan Dalwai and Markus Nieman (intern)