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The International

JOURNAL

ofDIVERSITY in ORGANISATIONS, COMMUNITIES & NATIONS

Volume 8

Recognition of Muslim Marriages in South Africa: A Conflicts Perspective Hendrika C. Roodt

www.diversity-journal.com

THE INTERNATIONAL JOURNAL OF DIVERSITY IN ORGANISATIONS, COMMUNITIES AND NATIONS http://www.Diversity-Journal.com First published in 2008 in Melbourne, Australia by Common Ground Publishing Pty Ltd www.CommonGroundPublishing.com. © 2008 (individual papers), the author(s) © 2008 (selection and editorial matter) Common Ground Authors are responsible for the accuracy of citations, quotations, diagrams, tables and maps. All rights reserved. Apart from fair use for the purposes of study, research, criticism or review as permitted under the Copyright Act (Australia), no part of this work may be reproduced without written permission from the publisher. For permissions and other inquiries, please contact . ISSN: 1447-9532 Publisher Site: http://www.Diversity-Journal.com THE INTERNATIONAL JOURNAL OF DIVERSITY IN ORGANISATIONS, COMMUNITIES AND NATIONS is a peer refereed journal. Full papers submitted for publication are refereed by Associate Editors through anonymous referee processes. Typeset in Common Ground Markup Language using CGCreator multichannel typesetting system http://www.CommonGroundSoftware.com.

Recognition of Muslim Marriages in South Africa: A Conflicts Perspective Hendrika C. Roodt, University of Aberdeen, UNITED KINGDOM Abstract: The general law of South Africa has always been in marked conflict with Muslim law in sensitive areas. At the same time, development of its common law was dramatically redirected when the new constitutional era dawned. However, the dialogue between community and law, the social context of legal rules and the superordinate values in the Bill of Rights indicate that public policy does not resort in the Constitution alone. The article considers the judicial powers to further the development of unofficial religious laws and the proposed draft bill on Muslim marriages in the light of an external conflict of laws dimension (which is lacking in the proposed legislation). It also takes another look at the inability of conflict of laws to respond to cultural diversity more deeply. Keywords: Unofficial Religious Laws, Muslim Marriage, Conflict of Laws, Cultural Diversity

Introduction ANY A SCHOLAR of law has been inspired to devote themselves to the study of Conflict of Laws1 by the meeting point — or point of collision — between the family laws of East and West. The law reports often portray the facts of these cases in picturesque terms, and the jurisprudence invariably offers legal argument compelling in its elegance. Conflict of Laws is a rational system of jurisprudence that presents itself in all instances where the factual content of a dispute spans more than one particular legal sphere. For instance, an application for the recognition of a foreign Muslim divorce decree for purposes of contracting a subsequent civil law marriage would invite the application of external conflicts rules in the area of recognition and enforcement of foreign judgments. Where the sending state is an Islamic state, or Muslim personal law is officially recognized in the sending state, a court in Europe is likely to apply Muslim personal law. The outcome hinges on the connecting factors pertinent to divorce in Europe (which includes nationality), and the question as to whether such application is likely to violate the public policy of the forum state. The Muslim marriage may have been concluded in a country that does not afford this religious system

M

any recognition, of course, since parties may marry in terms of “unofficial” Muslim law either in the host state or the sending state. In this external dimension, the question of which law is applicable exists separately from the jurisdictional question as to which court is competent to hear and decide a case. A dispute that involves different legal systems in force within a plural system of law, or in the component legal units within one political unit, allows the internal dimension of Conflict of Laws to manifest. A fundamental internal conflict may derive from the internal judicial and legal hierarchies within a nonunified legal system, where a personal legal system of family law, the application of which depends upon adherence to a particular religion, co-exists with a general legal system. For instance, when a court is faced with an application for divorce where the marriage concerned is a Muslim marriage that does not enjoy legal recognition internally, two legal systems would “compete” for application. In religious legal systems, choice of law does not exist separately from jurisdictional considerations. If the forum has jurisdiction with regard to the dispute, it applies its own law. The ongoing cross-boundary mobility of people draws particular attention to cultural, religious and legal pluralism.2 Differences in culture, concept and relative development of legal systems draw attention

1

The term “Conflict of laws” is used as a synonym for “Private International Law”. The discipline encompasses choice of law, jurisdictional conflicts and the recognition and enforcement of foreign judgments. It would be a mistake to proceed from the assumption that conflicts are the only problems requiring to be solved by this branch of the law. 2 MSFG Foblets, “Conflict of Laws in Cross-cultural Family Disputes in Europe Today: Who Will Reorient Conflicts of Law?” Comparative and International Law Journal of Southern Africa 30, no. 1 (1997): 22; MC Foblets “Migrant Women Caught Between Islamic Family Law and Women's Rights: The Search for the Appropriate ‘Connecting Factor’ in International Family Law” Maastricht Journal of European and Comparative Law 7 no. 1 (2000): 11; P Shah “Globalisation and the Challenge of Asian Legal Transplants in Europe” Singapore Journal of Legal Studies (2005), www.alanwatson.org/asian_transplants.pdf [accessed 25 June 2008]; Project Report 2005-

THE INTERNATIONAL JOURNAL OF DIVERSITY IN ORGANISATIONS, COMMUNITIES AND NATIONS, VOLUME 8, 2008 http://www.Diversity-Journal.com, ISSN 1447-9532 © Common Ground, Hendrika C. Roodt, All Rights Reserved, Permissions: [email protected]

THE INTERNATIONAL JOURNAL OF DIVERSITY IN ORGANISATIONS, COMMUNITIES AND NATIONS, VOLUME 8

to the relationship between Conflict of Laws and global legal pluralism. The demands advanced by religious communities tend to highlight the delicate balance that need to be maintained among national state interest, constitutional precepts and public policy on the one hand, and the demands of multicultural accommodation on the other. The capacity of a non-unified legal framework for internal consistency is as fundamental in internal conflicts as its capacity for neutrality is indispensable externally. In a large number of Asian and African countries Muslim law is the personal law of many families, but these systems also draw heavily on the conceptual structure, theory and doctrine of English Conflict of Laws.3 Singapore4 and Malaysia5 are cases in point. In South Africa6 the English Conflict of Laws model continues to exert a significant influence in this area7 despite the decisive casting aside of English parliamentary sovereignty.8 The issue of recognition of Muslim marriages by the judiciary and lawmakers in the South African multicultural context concerns both its secular and plural identity.9 It also turns the searchlight onto the classic components, methodology and boundaries of Conflict of Laws.10 South African law has never attached penal or civil consequences to the choice to abandon any religion.11 On the contrary, it finds itself poised to

provide a system of rights and duties for Muslims, and has done so for very long. Despite there being a continuum of possibilities for giving status to Muslim marriages, and the regularity with which governmental agencies pay lip-service to multiple affiliations of individuals, the non-recognition of Muslim marriages has not been rectified statutorily. The most recent efforts with regard to this particular social justice objective seem to have been “swallowed whole” in a poorly conceived codification by the South African Law Reform Commission (SALRC) that was circulated in 2003. The proposal did not pass constitutional muster. It did not provide a convincing response to Conflict of Laws problems either. The domestic constitutional implications of the legal position that confront Muslim women have been written about extensively.12 Much less scholarly effort has been expended on the overarching role of Conflict of Laws method and practice in this context.13 An examination of the constitutional law of a non-unified legal system in matters of internal conflict provides many crucial answers, but clarifying the oft-neglected preceding questions in relation to

2007: The Recognition of Muslim Personal Laws in South Africa: Implications for Women’s Human Rights, ed. R Manjoo (July 2007 Working paper Harvard), http://www.law.harvard.edu at 27 [accessed 17 December 2007]. 3 An internal conflicts rule system is steadily being developed within the European Union, where Private International Law has gained a distinct purpose, function and method. The UK is an intrinsic part of this progressive context of legal integration. 4 Singapore received English law as its basic law in 1826. Islamic law is applied to Muslims in all matters of personal status by a separate Shari’a court. GW Bartholomew, “The Application of Shari’a in Singapore” The American Journal of Comparative Law 13, no. 3 (1964): 385; WK Leong “Formation of Marriage in England and Singapore by Contract: Void Marriage and Non-marriage” International Journal of Law, Policy and the Family 14 (2000): 257. 5 English law was formally received in West Malaysia in terms of s 3 Civil Law Act 67 of 1956. Ample opportunity exists in Malaysia for the courts to address internal conflicts. RH Hickling and WM Aun, Conflict of Laws in Malaysia (Asia: Butterworths, 1995), 11 blame the training of many Malayan judges in English law for their cursory knowledge of Islamic law and inability to contribute meaningfully to an international jurisprudence in internal conflict of laws. 6 A civilian based common law influenced by English law is a feature of the legal system of South Africa. British occupations of the Cape (the first from 1795–1803 and the final one from 1806–1910) led to large-scale infiltration and reception of English law. This continued after the Southern African colonies formed the Union of South Africa in 1910, mainly because of the ease of reference to English sources and the training of law practitioners in England. E Schoeman and C Roodt, “Private International Law” in International Encyclopaedia of Laws Supplement 14 South Africa general editor R Blanpain (Kluwer Law International, 2007), § 1. 7 Schoeman and Roodt, § 3. 8 Y Burns, Administrative Law under the 1996 Constitution (Durban: Butterworths, 1999), 10. 9 Manjoo, 27. 10 Shah, 6 describes its role as limited to facilitating the recognition of legal acts that occurred in the pre-migration stage of diaspora populations. Foblets “Migrant Women Caught Between Islamic Family Law and Women's Rights”, 13 maintains that Conflicts of Law techniques in continental Europe are ill-fit to cope with immigration patterns today. 11 In contrast to Negeri Sembilan Enactment No 10 of 2003 (Malaysia). 12 Among the numerous attempts to describe the domestic implications count: C Rautenbach, “Muslim Marriages in South Africa” Griffin’s View on International and Comparative Law 7, no. 1 (2006): 67 ff; C Rautenbach, NMI Goolam and N Moosa, “Constitutional Analysis” in Introduction to Legal Pluralism in South Africa, ed. JC Bekker, C Rautenbach and NMI Goolam (2ed) (Durban: LexisNexis Butterworths, 2006), 149; N Moosa “The Role of State Courts and Muslim Religious Tribunals in Resolving Religious Disputes in South Africa” in International Seminar on Syariah & Common law (ISCOL) Conference Proceedings, ed. DI Supaat et al, (Malaysia: Kolej Universiti Islam Malaysia, 2006), 163; C Rautenbach “Legal Pluralism versus Gender Equality: The South African Scenario” in Pluralism and Law (Franz Steiner Verlag Stuttgart Gerlinger, 2004), 126; E Moosa “Tensions in Legal and Religious Values in the 1996 South African Constitution” in Beyond Rights Talk and Culture Talk: Comparative Essays on the Politics of Rights and Culture, ed. M Mamdani (Cape Town: David Philip, 2000), 131; S-H Haq-Nadvi “Towards the Recognition of Islamic Personal Law” in The Internal Conflict of Laws in South Africa, ed. AJGM Sanders (Durban: B 1990), 15. 13 Sanders, “The Role of Comparative Law in the Internal Conflict of Laws”: 57 is one of very few. NJJ Olivier, TW Bennett, J Church, “Indigenous Law” Law of South Africa (LAWSA) 32 (First Reissue 2004): §§ 5-8 discuss internal conflicts in a customary law context.

HENDRIKA C. ROODT

identifying the appropriate court and the applicable law yields other insights.14 This article is a first tentative step to link the models of multiculturalism to Conflict of Laws. An important first question is whether the basic problems of the models of multiculturalism are avoided in the Conflict of Laws model for dividing jurisdiction and selecting the applicable law. An important followup question would be whether the Conflict of Laws model could help to refine the transformative accommodation promised by the models of multiculturalism. Should the discipline be helpful on the first score, the possibilities of refining accommodation would call for more in-depth exploration. Together, these two questions constitute different aspects of a single apprehension of the relationship between Conflict of Laws and global legal pluralism. But, if Conflict of Laws botches the first of these, the second is bound to be bungled too.

Expectations of Law Reform It has been recognized often enough that in South Africa, a mixed jurisdiction or hybrid legal system15 was formed from civilian, common law and indigenous law threads,16 with religious law as an additional underlay.17 The parallel existence of Western and traditional forms of law constitutes officially recognised state law.18 When Britain retained the application of Roman-Dutch law and gave official recognition to African customary law and institutions, official legal pluralism was introduced.19 As each layer

14

of law collided with others, legal pluralism deepened, but it was always based on the superiority and dominance of the general legal system over other systems. The first Muslims came to South Africa in the mid-seventeenth century. An internal conflicts question has existed ever since, as many domiciled South Africans enter into polygamous unions in accordance with their own religious rites. At the beginning of the twentieth century, Ghandi led several campaigns during which compelling demands were made for full recognition in South Africa of Muslim and Hindu marriages.20 The first call for the recognition of a “Muslim Personal Law”21 dates from 1907. Polygamous marriages, regardless of whether the husband had more than one wife in fact or not, were for many years considered contra bonos mores. While a polygamous union might be consistent with the tenets of the Islamic faith, it was considered entirely foreign to the then prevailing societal notion of a conjugal relationship, based on the model of a Christian marriage. Muslim wives were regarded as concubines and children as illegitimate offspring.22 Statutory recognition has only been extended on a piecemeal basis, conceded for practical or monetary reasons and with regard particular aspects only.23 What measure of internal harmony existed between the general law of South Africa and Muslim law within the South African legal system was the result of case-law development. Judicial interventions have ameliorated the consequences of non-recognition of Muslim marriages to some degree.24 The highest courts have recognized the fact of an Islamic mar-

RH Graveson, “Problems of Private International Law”, Recueil des Cours 141 1974-I, AW Sijthoff, Leyde (1975), 229-230. J Church, C Schulze and H Strydom, Human Rights from a Comparative and International Law Perspective (Unisa, Pretoria: Unisa Press, 2007), 65; Schoeman and Roodt, § 1; W Tetley “Mixed Jurisdictions: Common Law vs Civil Law (Codified and Uncodified)”, www.unidroit.org [accessed on 26 March 2006]. 16 “Common Law” refers to the Roman-Germanic law as developed from Roman law on the Continent and developed by the courts, indicating that part of South African law that is unwritten, not found in legislation, being the law as it was before codification in statutory form, gathered from writings of 17th and 18th century Roman-Dutch writers. Reference is still made to historical antecedent as far back as Roman law: see Thompson v Scholz 1999 (1) SA 232 (C). On the use of the term “common law” see WJ Hosten et al., Introduction to South African Law and Legal Theory (2ed revised) (Durban: Butterworths, 1998), 381; Church, Schulze and Strydom, 44. Indigenous African law, the local non-European customary law, is applied as a secondary legal system alongside the primary Western or European component. 17 E Örücü, “Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition” Electronic Journal of Comparative Law 4 no. 1 (June 2000), http://www.ejcl.org/41/abs41-1.html [accessed on 20 November 2007]. 18 GJ van Niekerk “Legal Pluralism” in Introduction to Legal Pluralism in South Africa, ed. JC Bekker, C Rautenbach and NMI Goolam (2ed) (Durban: LexisNexis Butterworths, 2006), 6. 19 GJ van Niekerk “A Common Law for Southern Africa: Roman Law or Indigenous African Law?” in Roman Law at the Crossroads ed. JE Spruit, WJ Kamba and MO Hinz (Cape Town: Juta, 2000), 84-85. 20 1869–1948. Ghandi came to South Africa in 1893 and started to campaign against the mistreatment of Indians (Asian immigrants) and the invalidation of Indian marriage in 1906. In 1914 he returned to India. 21 Apparently this terminology is associated with the fragmentation of Islamic law by colonial rulers. See AA Oba “The Sharia Court of Appeal in Northern Nigeria: The Continuing Crises of Jurisdiction” American Journal of Comparative Law 52 (2004): 895; also J De Villiers Roos “Mohammedan Law in South Africa” South African Law Journal 24 (1907): 176; Moosa “The Role of State Courts and Muslim Religious Tribunals”, 163. 22 See, for instance, Ismail v Ismail 1983 (1) SA 100 7 (A); Kalla v The Master 1995 (1) SA 261 (T); Nkondi v Nkondi 2004 (4) SA 790 (C). 23 For purposes of the Special Pensions Act 69 of 1996, “dependant” includes the spouse of a deceased to whom he or she was married “under any Asian religion”. For purposes of the Demobilisation Act 99 of 1996 “dependant” includes the surviving spouse to whom the deceased was married “in accordance with the tenets of a religion” and in the Births and Deaths Registration Act 51 of 1992, “marriage” includes all marriages concluded according to the “tenets of any religion”, which is recognised by the Minister. 24 Moosa, “The Role of State Courts and Muslim Religious Tribunals”, 163. 15


riage for various different purposes25 even if the blessing of the common law was lacking. However, the basic status of Muslim marriages has not been changed. The effects of progressive case law26 are of limited scope. For instance, in Ryland v Edros,27 Judge Farlam rejected the notion that the monogamous concept of marriage was fundamental to all groups of society and highlighted constitutional values in the context of South African family law. This decision is not binding on other provincial divisions, and therefore the future direction of the law cannot be predicted with certainty. Adding to the uncertainty is the discretion of South African courts to take judicial notice of foreign law28 unless such law is “opposed to the principles of public policy and natural justice”.29 A rule of law excluded by the public policy rule will not necessarily also be excluded under the repugnancy rule,30 but it would be perplexing if a foreign rule of law were designated as offending against the public policy rule while forum law, or one of the layers of forum law, has a rule of a similar kind. Constitutional reform in the 1990s raised the expectation of recognition of the social and cultural realities in the country at a structural level. However, surprisingly little has changed with regard to the recognition of Muslim marriages despite the promise

25

of accommodation in the Constitution. Scholars assumed that de facto monogamous marriages would enjoy recognition, that the change of policy will find its way into legislation and that the constitutional values would have a marked effect on the international (external) level.31 Moreover, it was assumed that the new secularized constitutional dispensation would treat customary law marriages and Muslim law marriages evenly.32 Yet, the initial willingness to tackle the thorny subject of Muslim Personal Law in legislation has not borne tangible statutory fruits and the legal framework within which Muslim families function remains incomplete and inadequate to this day. Proposals for in principle recognition have been made,33 but real progress in this direction has all but stopped. The endeavours of the Muslim community motivated the South African Law Reform Commission to start with investigations in 1990. No findings were published for discussion at the time. A Project Committee was eventually established in 1996 and overhauled in 1997. The Committee was expected to recognise a religious system of personal law within the confines of a secular constitution, deal with vested rights in existing civil marriages and address the conflict of laws dimension. The first proposed Draft Bill on Muslim Marriages was pub-

Progressive judicial interpretation occurred in certain areas of the law such as loss of support, intestate succession rights and maintenance for surviving spouses. 26 Cases that dealt with the rights of a wife in a monogamous Muslim marriage against the backdrop of the interpretation of a statute providing spousal relief include Amod v Multilateral Motor Vehicle Accident Fund 1999 (4) SA 1319 (SCA) and Daniels v Campbell NO and Others 2004 (7) BCLR 735 (CC); 2004 (5) SA 331 (CC). In Daniels the validity of a Muslim marriage was not at stake but still unnecessary legal cost was expended before the SCA renewed the legal position. Khan v Khan 2005 (2) SA 272 (T) dealt with the rights of parties to an Islamic marriage which is in fact polygamous. In the most recent case, Toufeeqah Ismail v Yusuf and Nafisa Ismail and Another Case no 2002/06 (ECD) (unreported) the second wife in a Muslim marriage applied for enforcement of rights under a lease and was granted an order preventing the respondents from selling the house. 27 Ryland v Edros 1997 2 SA 690 (C). Judge Farlam ruled that a marriage contract concluded by parties and entered into in accordance with their religious rites and which was, in fact, monogamous, was not contrary to the accepted customs and usages which are regarded as morally binding upon all members of society. In general C Rautenbach, “Muslim Marriages in South Africa”, 60-61. 28 Section 1(1) of the Law of Evidence Amendment Act 45 of 1988. 29 The former British colonial administration also reserved for itself the power to refuse to recognize specific local practices that were conceived to be incompatible with morality, humanity or natural justice. Privy Council review of colonial statutes relied on a minimum standard of civilized values embodied in a “repugnancy clause” which defined the limit of acceptable governance. No coherent doctrine developed as the Privy Council never provided reasons for the invalidation of colonial statutes. Most African countries abandoned the repugnancy proviso when they obtained independence and in South Africa, hardly any reference has been made to it in over forty years. 30 Both public policy and the controversial repugnancy proviso may be used to exclude the application of a legal system, or escape from an unsatisfactory choice of law rule. Both could operate as reserve equity principles. However, the two rules are very dissimilar in context and function. The function of the public policy rule is to protect state interests in the international sphere, whereas the repugnancy clause seems to have no aim other than to protect the interests and welfare of the dominant legal system within a non-unified legal system. Whereas the repugnancy clause is a colonial anachronism that does not deserve much of a role in solving problems that arise from deep legal pluralism, the concept of public policy has a brighter future within a broader co-ordinating function on the part of Conflict of Laws, provided it remains connected to the values of equality and tolerance of diversity as much as to values supported by non-dominant groups in multicultural society. In general RD Leslie, “The Repugnancy Rule in African Law and the Public Policy Rule in Conflict of Laws” Acta Juridica, II (1977): 117, 119. 31 CF Forsyth, Private International Law (4ed) (Lansdowne: Juta, 2003), 272-3 refers to the reasonable expectations of the parties in this regard. In general, Schoeman & Roodt, § 166. 32 For instance, customary law is recognised and applied. Matrimonial law is regulated in the Recognition of Customary Marriages Act 120 of 1998. See Olivier, Bennett, Church, §§ 126-152. 33 South African Law Reform Commission, Islamic Marriages and Related Matters: Report – Project 106 (July 2003) containing the proposed Muslim Marriages Draft Bill; Recognition of Religious Marriages Draft Bill (drafted on the initiative of the Commission for Gender Equality (Parliamentary Office of the South Africa and issued in 2005). For a useful evaluation of several aspects of the last-mentioned Draft Bill, see Manjoo, 19-28.

HENDRIKA C. ROODT

lished in 2001.34 A reworked Draft Bill was submitted to the Minister of Justice and Constitutional Development in July 2003. The Law Commission’s original 2001 proposal did not contain any conflicts provision. The 2003 SALRC proposal does so finally, even if this did not prevent the proposal from being turned down by the Cabinet on the ground of constitutional incompatibility.35 Since unofficial indigenous law and living religious laws form part of social and cultural reality in South Africa,36 a more fundamental consideration of principle is called for. The slack pace of reform raises pertinent questions in respect of the rights of women and children in the Muslim community. Some courts may be tempted to leave change up to the legislature or to drag their feet when multicultural accommodation is called for. There has already been speculation that different arguments may have been employed in the Rylands case had the marriage in question been a polygamous one in fact.

The Constitutional Dimension The relationship between the general law of South Africa and special legal systems observed by different religious communities has never been based on equality.37 The general law of South Africa has always been in marked conflict with Muslim law in sensitive areas. Before the interim Constitution took effect in 1994, religious-based systems were largely ignored and Muslims were subject to the common law characteristics of the Western or general law.38 34

Some blamed the influence of Christian culture and cryptotypes39 that marked the Christian underpinning of state law in family law for the lack of alignment between statutory law and multicultural reality. Others put it down to the habit of indiscriminate, mechanical compliance with analytical positivism and legal centralism under the apartheid dispensation.40 The development of the common law was dramatically redirected by the thrust of the 1996 Constitution and its inherent values.41 Section 15(3)(a) of the Constitution provides for the recognition of religious and traditional marriages through legislation. It serves to point towards the legislative recognition route in respect of certain aspects of religious legal systems.42 Statutory law has always served as the primary source of law subject to the Constitution. Where statutes are not available, the courts may fall back on the hybrid common law. Section 173 of the Constitution now directs the courts to develop the Common Law, taking account of the interests of justice. This power must be exercised in accordance with the ethos of the Constitution.43 The interpretation and enforcement of rights to culture, language and religion depend heavily on the individual human rights ideology that sets the stage for the new national ideal.44 The right to freedom of religion is a central feature of the constitutional

The Law Commission published Issue Paper 15 for public comment in July 2000 and released a response. It also approved Discussion Paper 101 (2001), which contained preliminary recommendations and a proposed draft Bill on the recognition of Islamic marriages. See South African Law Reform Commission, Islamic Marriages and Related Matters: Discussion Paper 101-Project 59 (2001), http://www.doj.gov.za/salrc/dpapers/dp101_prj59/dp101_prj59_2002.pdf [accessed 1June 2007]. This proposal was included alongside the new proposal in South African Law Reform Commission Project 59: Islamic Marriages and Related Matters (2003). 35 Manjoo explains that the Recognition of Religious Marriages Draft Bill was intended as an alternative in response to the numerous concerns surrounding the SALRC proposal. This Bill is not listed among its legislative proposals and interventions on http://www.cge.org.za/. Government departments never called for public consultations on this proposal as expected, and little progress has been reported since. See Manjoo, 4-5. 36 Rautenbach, Goolam and Moosa, “Constitutional Analysis”, 151; GJ van Niekerk “State Initiatives to Incorporate Non-state Laws into the Legal Order: A Denial of Legal Pluralism” Comparative and International Law Journal of Southern Africa 34 (2001): 352. 37 Van Niekerk “A Common Law for Southern Africa?”, 85. 38 Haq-Nadvi, 15; F Cachalia, “The Future of Muslim Family Law in South Africa” Occasional Paper 12 (1991) University of the Witwatersrand, Johannesburg, Centre for Applied Legal Studies. 39 “Cryptotypes” refer to the unwritten elements of the law, or the state of mind and mentality of practising lawyers, judges and law teachers derived from their experience and training. Örücü intimates that BL Whorf, Language, Thought and Reality (Cambridge, Mass.: Technology Press of Massachusetts/New York: John Wiley/London: Chapman & Hall, 1956) coined the term. U Mattei, “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems” The American Journal of Comparative Law 45 (1997): 20 n 68 uses it; A Shachar, Multicultural Jurisdictions – Cultural Differences and Women’s Rights (Cambridge, UK: Cambridge University Press, 2001), 75 describes this phenomenon without calling it by this name. 40 Positivism engendered in lawmakers an inability to see legal rules in their social context. The only rules considered to be “law” were rules administered by a single set of state institutions. Positivism also implied a strict adherence to the letter of the law. 41 In Daniels v Campbell NO and Others supra Justice Sachs made this point with reference to common law and indigenous law. When interpreting the Bill of Rights, a court must promote the values that underlie an open and democratic society based on human dignity, equality and freedom. The courts are aware of their responsibility to develop the common law and interpret legislation to reflect the “new” norms and values of the South African society. 42 Rautenbach, “Muslim Marriages in South Africa”, 57. 43 S v Thebus 2003 (6) SA 505 (CC) § 31. There needs to be consistency between rights or freedoms that are recognised or conferred by common law, customary law or legislation and those conferred by the Bill of Rights. Section 15 leaves little room for misunderstanding that any future recognition of Muslim personal law must be consistent with the other provisions of the Constitution. 44 As embodied in the preamble to the Constitution. Church, Schulze and Strydom, 65.


landscape.45 As a secular state,46 there is no official state religion and no state aid is provided for any religious activities. The Constitution does recognize a right not to acknowledge aspects of religious legal systems.47 Religious groups still need to lobby the legislature to pass legislation in recognition of their respective personal laws,48 but the Constitution prepares the groundwork for application of religious family laws and does not block the recognition of such marriages. Reform driven from the constitutional dimension would imply a stripping away of unconstitutional aspects of religious family law49 as well as an expansion of the common law to accommodate it.50 The relationship among “common law”, constitutional guarantees and Muslim Law51 having been redefined, enables South African courts to assist Muslim women when hardships arise on account of non-recognition of Muslim marriages and the unofficial status of Muslim laws. Even if gender equality remains a vexed question and recognition of de facto monogamous marriages hardly goes far enough in terms of fairness and consistency, courts are in a better position than ever to exercise their judicial powers skillfully. The values contained in the Bill of Rights “irradiate” the concept of public policy.52 Nonetheless, constitutional protection for the adherents of religious family laws will remain shrouded in uncertainty until legislation addresses the issue of recognition of such marriages concluded in South Africa and abroad.53

45

Models of Multiculturalism The “secular absolutist” model of multiculturalism is associated with a situation where the state retains the exclusive right to define what legally constitutes a family and to subject citizens to a uniform secular family law. On the other hand, if legal authority is divided between the state and religious minority groups according to the “religious particularist” model,54 different religious communities are vested with the legal power to determine the personal status of their members. In a secular state, the “separate spheres or sovereignties” approach is typical. It presupposes that the state is not required to take over the functions of religion, and that religion is not required to secularise itself.55 As such, ordinary courts and Shari’a Courts may enjoy concurrent jurisdiction and operate on a forum conveniens (appropriate court) principle. Coexistence would not safeguard either set of courts against constitutional scrutiny. Modifications of the secular absolutist model have been devised to soften the rigidity of this rudimentary model. A less absolutist variant56 applies in South Africa, where a Muslim marriage ceremony presided over by an imam who was a designated marriage officer in terms of the Marriage Act 25 of 1961, is recognised as valid. Modifications may also involve a measure of fusion, either in terms of permitting the use of Shari’a as a formal source of law in ordinary civil courts, training civil law judges to hear Shari’a cases or enabling them to hear these cases in the presence of Shari’a assessors or judges. Extending the jurisdic-

Freedom of religion is guaranteed and discrimination based on religion, conscience, belief or culture is prohibited. All persons have a right to enjoy their culture, practice their religion and use their language, subject to the other provisions of the Bill of Rights. In general Church, Schulze and Strydom, 66. 46 Secularism is often associated with constitutionalism. It may be described as a “neutralizing” tradition in government that keeps religion out of politics. It does not regard religion to be a constructive force for political good, and does not require the state to take over the functions of religion. In South Africa, religious doctrine may not be used as a guide to the constitutional right of others; see Minister of Home Affairs and Another v Fourie and Another 2006 (3) BCLR 355 (CC) § 91. 47 As such, the argument that the constitutional right to practice religion freely includes the right to be subject to one's own family laws is not entirely convincing in the South Africa context. In the context of the recognition of customary law, it has been argued that marriage, succession and land tenure form part of the unique institutions that a group or a community may insist on. See Olivier, Bennett, Church, § 28 at 34; in general Moosa, “The Role of State Courts and Muslim Religious Tribunals”, 163. 48 Moosa, “The Role of State Courts and Muslim Religious Tribunals”, 164. 49 In Islamic states, statutory law may be stripped of “anti-Islamic” aspects. Afghanistan has sought to rely on the repugnancy clause to this end. The Afghan Constitution nullifies any law deemed contrary to “the sacred religion of Islam”. Without a constitutional guarantee for freedom of religion, there is no protection of individual rights or minority rights to practice religion freely. 50 Rautenbach “Legal Pluralism versus Gender Equality”, 131 states that the courts do not have the same power to develop unrecognised legal systems as they have in relation to common law and customary law. See also Rautenbach, “Muslim Marriages in South Africa”, 62. 51 Primarily sections 15, 30, 31, 173, 181(1)(c) and 185 read with sections 9 and 187. 52 Public policy denotes super-ordinate values that could include — but must ultimately also transcend — the Constitution and the Bill of Rights, and that precede the Bill of Rights. These values derive from the dialogue between community and law in the social context of legal rules. 53 Schoeman and Roodt, § 170; Rautenbach “Legal Pluralism versus Gender Equality”, 128. 54 Shachar, 71; Manjoo, 6. 55 Cachalia, 9-12. 56 Shachar, 77.

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tion of Shari’a Courts to non-Muslims in certain cases would modify the religious particularist model in a different way.57 The paradox of multicultural vulnerability58 affects the legal-institutional mechanisms of multiculturalism.59 The paradox refers to “protections” that are intended to accommodate minority groups, but that allow the state to bypass routine intra-group violations of the rights of vulnerable members. The power given to a minority to demarcate its membership boundaries and to preserve its cultural distinctness can be used to perpetuate an unequal distribution of power within the community itself. Accommodation that preserves a basic imbalance may incite reactive culturalist responses60 and thus care is needed to avoid the negative consequences of the paradox at work. Allowing cryptotypes to linger can cause an interference with the neutrality of a secular legal system but it can also affect the models of multiculturalism at their core. Shachar argues that the secular absolutist model has been shaped by a Christian underpinning since the inception of the modern Western state and that it cannot be assumed to be a neutral model for this reason.61 Conceptions of the role of law or theories on the legitimation of the law in modern South African society are rather mixed on account of its Western-and African components that do not belong to the same cultural family. The state is no longer associated with any religion in particular, and a measure of cultural diversity is present in its family law statutes. The autonomy and sovereignty of indigenous people’s family law systems are maintained62 and as indicated, judicial developments have provided some impetus to alleviating hardship for Muslim women. None of the modifications involving fusion have been implemented in South Africa yet, but the SALRC proposal

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contains some elements of a model of fusion that are discussed below.

Conflict of Laws The problems arising from differences in culture, concept and relative development of legal systems introduces a dimension of depth to questions of forum and applicable law. This dimension is additional to the more usual space and time dimensions of choice of law (when Conflict of Laws is called upon simply to indicate the area over which a particular rule of law extends and the point at which a connecting factor becomes pertinent).63 The dimension of depth refers to the various layers of different legal systems within a non-unified legal system. In a multicultural context, state welfare and the interest of peaceful co-existence of polities presuppose coordination of those layers. The essential function of Conflict of Laws is to co-ordinate the different legal systems claiming application in a context that promotes the formation of international society. The coordination of legal frameworks and rules (including rules of substantive law) is vital for their orderly coexistence.64 In the internal dimension a state that takes its responsibility to manage clashes between culturally diverse layers seriously, is bound to find a way to accommodate multiculturalism. The dimension of depth explains why external and internal solutions to similar problems are not always similar. Much-needed co-ordination may exist in the external dimension by means of a liberal recognition of foreign acts, decisions, orders and events associated with polygamy, while the internal dimension could remain firmly closed to the notion of accommodating a polygamous marriage.65 The converse is also conceivable, in that an awareness of the significance of the depth of a legal system could help resolve problems in the external dimension.66 In broad

AH Mohamad, “Conflict of Civil and Shari’ah Law: Issues and Practical Solutions in Malaysia” (paper presented at the International Seminar on Syariah & Common law (ISCOL) Palace of the Golden Horses, Kuala Lumpur, 20-21 September 2006), 1. 58 Shachar, 71 ff; In general Manjoo, 6. 59 Shachar, 72. Shachar finds it easier to dismantle the paradox in a jurisdictional context. 60 Shachar, 78; Manjoo, 8. 61 Shachar, 75-76. 62 Recognition of Customary Marriages Act 120 of 1998 ensures recognition of customary marriages and the protection of women married in terms of customary law. Church, Schulze and Strydom, 66. 63 North & Fawcett, Cheshire & North’s Private International Law, (13ed) (Oxford: Oxford University Press, 2004), 6-7; RH Graveson, Conflict of Laws: Private International Law (7ed) (London: Sweet & Maxwell, 1974), 42; Id, “Problems of Private International Law”, 199, 229. 64 C Roodt, “Reflections on Theory, Doctrine and Method in Choice of Law”, Comparative and International Law Journal of Southern Africa, 40 (2007): 95-96; C Roodt, “Conflict of Law(s) and Autonomy in Antenuptial Agreements” (Part 1) Tydskrif vir Hedendaagse Romeins-Hollandse Reg, 69, no. 2 (2006): 219. 65 K Siehr, “Coordination of Legal Systems in Private International Law” in Intercontinental Cooperation through Private International Law: Essays in Memory of PE Nygh, ed. T Einhorn and K Siehr (The Hague: TCM Asser Press, 2004), 331. 66 Graveson, “Problems of Private International Law”, 214, 216.


terms, the generic problems of the two dimensions are largely similar and internal conflicts are not hermetically sealed from external conflicts situations.67 Varying degrees of public policy in the internal and external aspects of Conflict of Laws68 may imply that the level of development of a legal system may be a condition for its application in the external dimension. Conflict of Laws belongs not only within the domestic legal system, but it also stands outside of domestic systems.69 Institutionally Conflict of Laws is subject to the vagaries of state power. Even if the relative depth of the host legal system is seldom contemplated directly as a factor, the capacity of the discipline to manage internal diversity is connected with depth.70 The question of state power and its jurisdictional and choice of law implications tend to resorb the little attention given to Conflict of Laws. Looked at from the outside, a broad co-ordinating framework of global Conflict of Laws systems exists. It rests firmly on the high level of international congruence among differing national systems that developed owing to the global pressures of co-existence. The potential of Conflict of Laws to solve problems of co-ordination is easily overlooked, underestimated or dismissed. Viewed as no more than a branch of the “host” national legal order, fixated on the identification of one connecting factor where more connecting factors compete for application,71 it is bound to disappoint. Such a reductionist perspective also makes the difficulties of explaining the relationship between Conflict of Laws and global legal pluralism loom larger, as it becomes tempting to lose sight of the more essential function of the discipline. The neutrality of the co-ordinating framework lies at its heart, but the concept of neutrality is seriously

67

misunderstood if taken to denote the blind medium between legal orders that stresses the sovereign equality of nations,72 or as referring to a connecting factor’s impartial designation of the legal system with the closest connection to the dispute. It is equally misapplied at the internal level if used to shelter the interests and welfare of the dominant legal system within a non-unified legal system. In jurisdictional matters, Conflict of Laws offers a broad system by which it ensures a general similarity of solution. The constitutional boundaries of jurisdiction are significant but the general principles that rely on the concepts of the forum and the tendency to universalize these criteria precede them.73 In matters of choice of law, Conflict of Laws offers an array of devices and tools that include the policy of validation of transactions (which coincide with party expectations); connecting factors including party autonomy;74 and the concept of public policy. It may be argued that the question as to whether co-ordination between Muslim law and Western law is feasible does not permit of a uniform answer. In a German context, for instance, public policy is likely to interfere with reference to bigamy and repudiation practices in Muslim law, and scholars have ruled out the possibility of co-ordination for this reason.75 However, it is submitted that the predetermined contours of legal structures that other legal systems need to fit into in order to be allowed official recognition, signal a need to move to a deeper level of coordination. Disparities may exist between choices and rules found in legal doctrine or in the underlying patterns of legal reasoning in case law. Coordination of different legal systems and rules that lie at different levels within these systems within a single legal unit does not modify or change the substantive rules, but organize them differently so that they rank

AJGM Sanders, “The role of comparative law in the internal conflict of laws” in The Internal Conflict of Laws in South Africa, ed. AJGM Sanders (Durban: Butterworths, 1990), 58; R Graveson, “Problems of Private International Law”, 199, 216. 68 Graveson, “Problems of Private International Law”, 232. He wrote that the relevant provisions of the foreign law may be irreconcilable with the public policy of the forum but in the context of internal conflict between general law and religious law in a pluralist society, the evolutionary stages of these legal systems may differ vertically (at 199). 69 Graveson, “Problems of Private International Law”, 216. 70 Graveson, “Problems of Private International Law”, 199. 71 Two connecting factors that often vie for application is the law of the country of origin (or the law of the sending state) versus the law of the host country (be it the law of nationality, domicile or habitual residence). Some prefer their personal status to be governed by religious rather than geographical or spatial concern (which may mean a preference for the application of the law of their country of origin); others prefer to be governed by the law of the host country. Multicultural accommodation through cumulative reference rules that avoid either/or choices between connecting factors such as the above has not been studied in a systematic manner yet. 72 Roodt, “Reflections on Theory”, 88-89. 73 Graveson, “Problems of Private International Law”, 233 states that religious law may claim eternal ubiquity but the organisation of religious courts is normally local and temporal. 74 In practice, the intentions (choice) of the parties play a leading role in determining the applicable law for contractual obligations. In theory, the concept could enable parties to choose as the appropriate venue an ordinary civil court or a shari’a court, and as the applicable law the general law or Muslim law as long as the stipulation is made in express terms (professio iuris). 75 Siehr, 331.

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equally.76 If perfect “equivalence” or equality of legal systems is brandished as myth for conflicts purposes,77 efficient co-ordination in a cross-cultural context is possible to the extent that openness sustains the very co-ordinating framework at its core. This attribute needs to be sought and regained when it has been lost. To seek it so as to restore it requires the existing disparities to be understood before lasting change will become possible. A basic understanding of the models of multiculturalism could be helpful in evaluating the readiness of the South African legal system in this regard.

Relationship between the Models of Multiculturalism and Jurisdiction in Conflict of Laws In a religious personal law context the models of multiculturalism clarify certain aspects of the law and jurisdiction relationship. They even point toward ways in which jurisdictional conflicts can be harmonized. Importantly, they also portend fundamental problems that are best countered or neutralised. The interests of the dominant legal system dominate in civil courts. This court system supports rules of exclusive jurisdiction and competence when it comes to allocation of jurisdiction.78 It would be amenable to concurrent jurisdiction only if another unit or layer in the legal system enjoyed exclusive jurisdiction. Because Shari’a courts arrived “after the game had begun” a decision on whether to follow rules of the Muslim group is lacking at this level and the Muslim community is unable to define the standards of the courts as societal institutions. A particular question may fall squarely within the ambit of the Muslim family law and that of the permitted jurisdiction of its courts, but lacking in official status in the eyes of the law of the forum, any “choice” between jurisdictions is non-existent. The jurisdic76

tional spheres of secular and religious fora remain essentially separate and civil courts and informal religious tribunals or shari’a courts operate parallel. While a choice to opt for the jurisdiction of the civil court could be legally effective,79 the social consequences may be devastating. The pronouncements of the conservative Ulama, which reportedly dominate the religious tribunals,80 are only morally binding inter partes. Generally speaking, opportunities for review may exist but dissatisfied parties cannot approach the ordinary civil courts to enforce or appeal the findings of the tribunals. Foblets81 has urged scholars to take greater cognizance of the potential of party autonomy or professio iuris in Conflict of Laws when it comes to the legal consequences associated with the marital status of Muslim women. Because choice of law does not exist separately from jurisdictional laws in personal/religious legal systems, and civil judges are not equipped at present to hear cases involving Muslims, it needs to be treated with great care.82 Party autonomy may be a mere phantom in that parties may be “free” to choose which courts to approach, but the choice of forum may not be freely made. If there is any likelihood of fear and coercion preventing women from choosing the secular option,83 the possibility of a choice could never create an incentive for gender equality. Moreover, party autonomy is only truly justified in situations where parties are of equal bargaining power.84 Foblets takes no account of the unavailability of party autonomy with regard to venue or forum in South Africa. The models of multiculturalism and their modifications are designed to explain the division of legal authority between state and group. These models do not cater for the existence of legislative power on the part of the individual (party autonomy) in inter-

A Boggiano, “The Law of the Relations Between Legal Systems: A Methodological Analysis” in Private Law in the International Arena – Lieber Amicorum Kurt Siehr, ed. Basedow (The Netherlands, The Hague: TMC Asser Press, 2000), 83. 77 Graveson, “Problems of Private International Law” 199 pointed out that the principle of equality of states takes on a distinctly different meaning in Conflict of Laws from the meaning attributed by public international law. Practice belies this fundamental assumption, as some legal systems are more equal than others. In general, Th M De Boer, “Facultative Choice of Law: The Procedural Status of Choice-of-law Rules and Foreign Law”, in Recueil des Cours, 257 (The Netherlands, The Hague: Martinus Nijhoff Publishers, 1996), 403. 78 Graveson, “Problems of Private International Law”, 234. 79 In the area of matrimonial property relations between spouses, judicial interpretation of a Muslim marriage as on a par with a civil marriage would enable a court to declare that spouses were married in community of property. See eg www.sundaytimes.co.za (article of 29 October 2006) [accessed 3 June 2008] for a report on the reaction of the Muslim community to an application brought by Ms Moolla to have the Divorce Act 1979 declared applicable to her (Muslim) marriage to Mr Jamaloodeen. The case was settled out of court. 80 Moosa, “The Role of State Courts and Muslim Religious Tribunals”, 164 n 6. 81 Foblets, “Migrant Women Caught Between Islamic Family Law and Women’s Rights”, 11; Foblets, “Conflict of Laws in Cross-cultural Family Disputes”, 26. 82 Failing to identify how intertwined choice of court and choice of law is, Manjoo, 23 declares simply that there is no “negation of Muslim law”. The application of civil law in a religious court is a non-starter. 83 The recognition model would make it possible in principle to respect the principle of party autonomy with regard to the forum. Women would have the choice to have their disputes settled by a religious individual or institution, or to rely on the legal status of their marriages in order to take advantage of secular laws. 84 Manjoo, 23-24 describes the party autonomy aspect as a limitation of the recognition of religious marriages approach, a choice that is being forced on women.


national family law,85 and they offer no explanation for the division between state and individual. In fact, some modifications of the secular absolutist model expand the power of state law over minority cultures. Party autonomy could prompt the models of multiculturalism to take account of relationships beyond group and state, but to date this has not been the case. Refining transformative accommodation as promised by the models of multiculturalism would remain unachievable for as long as the stumbling blocks in the way of progress remain unidentified.

Stumbling Blocks of the Current Context The destiny of Muslim law in South Africa is determined, in large measure, by the Constitution as the backbone of the legal system. While the Constitution provides no unqualified incentive for legislative recognition of all aspects of Muslim personal law, it does not block recognition of these marriages. Tension between common law and constitutional law, often played out in the domain of marriage, does not seem to hold progress back either. The power to develop the common law cannot be construed as restrictive. The court must identify the relevant common law sources and then modify them in accordance with new circumstances and needs. Potentially, the most serious obstacle to progress lies within the Constitution itself in as far as it does not preclude a tug-of-war between equality (gender equality/rights) and culture.86 The question as to the apparent conflict between Muslim law and the right to equal treatment is not easily resolved by arguments that rely on the horizontal/vertical application of section 8 of the Bill of Rights, but it could be overcome by giving preference to the equality of women.87 Shachar’s work, however, points up the tendency of the secular absolutist model to protect the entitlement of vulnerable groups to equal treatment in a formal sense only.88 Any assumption that recognition of Muslim marriages would ensure that the Bill of Rights applies to Muslim family law, and that the necessary constitutional protection would be afforded to the vulnerable groups within these communities, would be misguided. At this particular point in the development of the legal system, the tacit enforcement of the norms of the dominant culture in the area 85

of family law may not pose too great an obstacle, but the “either/or choice” faced by the vulnerable members of a minority between their culture and their rights pose real risks.

Stumbling Blocks Hidden in the Muslim Marriages Draft Bill The proposed Muslim Marriages Draft Bill emanating from the SALRC in 2003 allows selected aspects of Muslim Personal Law to co-exist with general South African law. This Draft Bill is based on a codification model that makes various aspects of Muslim law available as a source of law residual alongside the Roman Dutch common law and official customary law.89 It codifies many controversial aspects of the Shari’a which have not passed constitutional muster. In effect, therefore, it lends state approval to any gender-bias that may underlie the codified elements of religious law. The proposal goes far beyond issues pertaining to status. The Draft does not vest shari’a courts with official power to decide Muslim family law matters but contains a clause on the use of assessors in the civil courts. Because the judges of secular courts are by and large non-Muslims, clause 15 or the 2003 SALRC proposal suggests that a judge be assisted by two assessors who are experts in Islamic law in the adjudication of all disputes relating to Islamic law to resolve such disputes effectively. In this respect it connects directly to the models of multiculturalism discussed above. The proposal perpetuates the interest of the state in a secularized court system but imports a limited measure of fusion between general law and religious law, affording religious leaders what seems to be greater discretion and authority in the interpretation of religious laws. The underlying lack of an effective choice with regard to jurisdiction, which has a potential impact on the ability to choose the alternative law as applicable law, remains under wraps. The proposal is counterproductive in as far as it sets up a dynamic of conflict between the secular state and the religious community. Actions that end up in the appeals process may lead to appellate courts reversing the findings of Muslim judges. If nonMuslims determine the norms of Muslim personal

C Roodt, “Conflict of Law(s) and Autonomy in Antenuptial Agreements” (Part 1, 2, 3) Tydskrif vir Hedendaagse Romeins-Hollandse Reg 69, no. 2, 3, 4 (2006): 215, 367, 546. 86 Women’s national identity and rights to equality may conflict with their right to freedom of religion and their culture in the context of legal status, polygamous marriages or succession. In general see Rautenbach, “Muslim marriages in South Africa”, 59; Rautenbach “Legal Pluralism versus Gender Equality”, 128-129; Rautenbach, Goolam and Moosa, “Constitutional Analysis”, 113 ff; Church, Schulze and Strydom, 65; W Amien, “Overcoming the Conflict between the Right to Freedom of Religion and Women's Rights to Equality: A South African Case Study of Muslim Marriages” Human Rights Quarterly 28, no. 3 (August 2006): 729. 87 The right to culture cannot be used to protect the interests of a group at the expense of the equality and dignity of the individual, and religious freedom cannot be pursued without due regard being paid to other foundational constitutional values. Bhe and Others v The Magistrate, Khayelitsha and Others 2005 (1) BCLR 1 (CC); Manjoo, 16-17. 88 Shachar, 76, 78; Manjoo, 7. The content, rationale and definition of marriage and divorce can be challenged by citizens. 89 A recognition model has more modest aims compared to a codification model.

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law, the Draft Bill slips into internal inconsistency and jettisons any chance it may have had to achieve the aims it has set for itself.90 The 2003 SALRC proposal vests individual members of the Muslim community with certain options in the area of matrimonial property law. Detailed matrimonial property rules do not form part of the body of the particular proposal itself; instead, individuals are endowed with the power to create those detailed rules for themselves as “role occupants”91 or addressees of the legislation. This route is respectful of the autonomy of the parties to decide whether they want to marry subject to Muslim personal law or not. Women who feel the Muslim personal law fails to meet with minimum standards of protection may decide to opt out and would have access to the protections guaranteed to other citizens at divorce in a formal sense. Arguably, this creates a legal route for secular authorities to limit exploitation, and promises vulnerable members of minority communities some protection against the “burdens” created by tolerance.92 Inserting provisions that establish a Muslim Personal Law system of marriage in the body of the statute itself would have brought the proposal on a par with marriages governed by indigenous African law, regulated by the Recognition of Customary Marriages Act 120 of 1998. The choices available to parties would be either to conclude their marriage in terms of the Marriage Act 25 of 1961 and treated like any other civil law marriage, or to conclude the marriage in terms of pro-forma marriage contracts embodied in the statute that extends recognition to Muslim marriages. Post contractual choice of the parties would need to be confronted, as this may change the actual monogamous nature of the marriage. Such an approach resembles a secular absolutist model rather closely, but cultural reactivity cannot be ruled out entirely. Due to unresolved constitutional problems the 2003 SALRC proposal did not receive cabinet approval. One may expect a secular state to be true to its own secular point of orientation, but also free from intolerance towards religion(s). It is possible to adopt 90

an even-handed approach to religious marriages.93 One may ask, therefore, why no other religious marriages are part of the proposed reform package.94 By its attempt to prescribe what Muslim law is supposed to be and to promote a single particular understanding thereof, the SALRC oversteps its limits. The “very act of crystallizing a specific set of religious rules” in a statutory format may be objectionable in the light of the inherent evolution of religious tenets over time.95 Rough edges like these have a numbing effect on neutrality. The codification approach is aimed at protecting the rights of Muslims as a group, but ultimately, the codification of any existing underlying gender biases in the religious norms only erodes the legal position of vulnerable members within the community. The socio-economic status and autonomy of women cannot be respected if group norms are formalized in a way that secures protection for the group at the cost of the individual.96 Another highly discouraging compromise is that of favouring certain schools of interpretation above others, whereby the secular state defines religious mandates.97 The models of multiculturalism provide useful checks and balances too. Some aspects of the 2003 proposal correlate with a “religious particularist model”; others are more closely associated with a “modified secular absolutist model” as practiced in civil law countries. If there is no clarity with regards to the model, there is no clear conception of limits or shadows. The direction of future legal development is less clear if the signals are so mixed. In as far as the model “extends” jurisdiction to minorities beyond status issues, the proposal resembles the religious particularist model. The weakest aspect of this model is its inability to contain the paradox of multicultural vulnerability. Structural discrimination is given free reign for the sake of safeguarding the cultural imperative.98 As shown already, both models display their own problems. Whether the Conflict of Laws model could hope to help to refine the transformative accommodation promised by the models of multiculturalism depends on an accurate identific-

Manjoo, 22. A “role occupant” denotes the class of persons whom a rule addresses such as a defined religious community. 92 Shachar, 78. Manjoo, 28 predicts that the weaker bargaining position of women and their low socio-economic status will preclude them from making proper use of protective provisions in this area. 93 The Recognition of Religious Marriages Draft Bill of 2005 does so within a single act, focusing on recognition of all religious marriages. It had an icy reception and had little practical effect, however. The reasons for not circulating it more widely are not clear at this stage. In general, Manjoo, 20. 94 Manjoo, 20. This same charge was brought against Discussion Paper 101 http://www.doj.gov.za/salrc/dpapers/dp101_prj59/dp101_prj59_2002.pdf 8ff. 95 Manjoo, 22. 96 Manjoo, 21. 97 Shafi and Hanafi schools. See Manjoo, 9, 19. Shari’a law develops through the opinions of judges. The dominant school of law in each country informs the prevailing shari’a rules, and opinions may differ depending on which school of law the jurist belongs to. See Moosa, “The Role of State Courts and Muslim Religious Tribunals”, 164 n 6; Mohamad, 1. 98 Schachar, 81. 91


ation of the stumbling blocks that inhere in the Muslim Marriages Draft Bill in this area.

The Potential of Conflict of Laws to Coordinate Legal Cultures The 2003 SALRC proposal attempts to give an answer to the basic question as to whether Muslims are considered subject to the domestic conflict of laws system of South Africa or not.99 The provision on foreign Muslim marriages (Clause 20 “Recognition of Foreign Muslim Marriages”) reads as follows: “In the event of a dispute relating to whether or not a Muslim marriage celebrated in a foreign country is recognized as a valid Muslim marriage under this Act, such dispute shall be determined by the court having regard to all relevant factors, including the principles of conflict of laws”.100 The proposed clause is in line with the logic that the forum cannot determine the particular legal unit within a foreign non-unitary system that is competent to adjudicate in the matter without allowing the constitutional provisions of the foreign legal system to allocate and define jurisdictional competence.101 The clause also purports to render conflict rules applicable to Muslims, qualified as required by the circumstances of their special situation. In this respect the clause seems to contain a specific example of the “principle/rule terminological confusion”. Is the principle of party autonomy to be taken into account, or would the conflict rules of the general legal system apply? What about the principle of validation of transactions? If one takes “principles” as “rules”, Muslim marriages validly concluded abroad in terms of the law of the place of celebration would be valid under the Act (the law of the place of celebration is the law applicable to inherent and formal validity). Most external conflicts problems are solved by means of much-needed co-ordination in the external dimension. The clause enables a liberal recognition of foreign acts, decisions, orders and events, signalling basic reconciliation with regard to the notion of polygamy of foreign marriages. However, the clause 99

leaves a question mark with regard to Muslim marriages that are not recognized as valid under the law of the place of celebration. These marriages are in a more uncertain position with regard to their recognition by a South African court. The common law rule in favour of the law of the place of celebration can be substituted only by means of a clear provision to the contrary, but no particular connecting factor or choice of law rule has been identified with regard to Muslim marriages concluded between South African domiciliaries in a place where they are not recognized as valid.102 The issue of recognition of the validity of potentially polygamous marriages could be addressed in a very simple manner,103 by stipulating that (1) a marriage entered into outside South Africa between parties neither of whom is already married is not void under the law of South Africa on the ground that it is entered into under a law which permits polygamy and that either party is domiciled in South Africa; and that (2) this stipulation does not affect the determination of the validity of a marriage by reference to the law of another country to the extent that it falls to be so determined in accordance with the rules of private international law. Such a stipulation meets the condition of neutrality with which internal conflict of laws is supposed to fulfill its basic function of ensuring the co-existence of legal systems on a horizontal secular plane in South Africa. This stipulation is based on an inclusive interpretation of Muslim marriage. It makes no attempt to codify the tenets of the Muslim faith based on assumptions of what its content ought to be; does not exclude other faith traditions; and stops short of patronizing any faith tradition. It adopts an evenhanded approach to religious marriages within a single provision, solving only the problem that lies at the root: non-recognition of religious marriages. As such, it strengthens the co-ordinating framework for global welfare in its external dimension. It has no direct effect internally, yet in as far as it points to a way free of preconception, favouritism and bias, adds fresh meaning to public policy even in this di-

The 2005 Draft Bill contains nothing similar and does not provide for Muslim marriages concluded abroad in any other terms. JL Neels made suggestions on the private international law aspects of the Islamic Marriages Proposed Draft Bill in 2002 that led to the insertion of clause 20 Recognition of Foreign Muslim Marriages into the 2003 SALRC Proposal. Comments were formerly available on http://general.rau.ac.za/law [accessed on 16 November 2006] but this link has now been discontinued. 101 Graveson “Problems of Private International Law”, 234. 102 Neels (above note 99) recommended that the draft Bill should provide in express terms for the recognition of Muslim marriages concluded abroad to make it clear that at least the personal consequences of the marriages are governed by South African law. He also recommended addressing instances where the spouses are domiciled in South Africa but their marriage is concluded in another Western country where a Muslim marriage is not officially recognized. The common law rule in favour of the lex loci celebrationis would need to be substituted in clear legislative terms and a clause would be needed to subject the proprietary consequences of marriage to South African law. 103 Section 5(1) of the Private International Law (Miscellaneous Provisions) Act 1995 provides for the validity in English law of potentially polygamous marriages; Section 7 provides for the validity and effect in Scots law of potentially polygamous marriages; and the Polygamous Marriages (Northern Ireland) Order 1995 No. 3211 (N.I. 20) provides for this situation arising under the law of Northern Ireland. 100

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mension.104 A deeper awareness of the significance of the depth of a legal system could be helpful in resolving problems in the external dimension. Likewise, a pro-active approach to problems occurring in the external dimension may kick-start long-overdue harmonization in the internal dimension.

Conclusion For rights to equality and to culture, religion and tradition to flourish side by side in South African family law, the paradigm needs to be broad enough to encompass more than the welfare of the dominant legal system. Incorporating Muslim law as an integral element of official law in a structural sense represents an obvious way in which to make room for another culture. After all, the wide unifying function of the common law could accommodate various cultural or religious constructs of marriage. A legislative leap may be resisted, however, for fear of compromising the neutrality of the secular state (in so far as true neutrality can be said to exist). Obtaining recognition for Muslim marriages may require, as a first step, more clarity and awareness with regard to the multicultural model within which the South African legal system is supposed to develop and deepen its capacity to deal with the chal-

lenges. Confusion on this issue interferes with the identification of the causes of the non-recognition impasse. At the same time, there are simpler steps to be taken in the direction of accommodation that would likely pass constitutional muster and line up with the neutrality which the Constitution presupposes. Coexistence offers many possibilities for the welfare of the secular state where full-scale integration demands too much too soon. A simple statutory conflicts provision could signal a willingness to confront international realities associated with Muslim marriages, developing the South African law in a context where many other systems apply or are potentially applicable. Where deep legal pluralism reigns, the perfection of the common law system, or of any legal system for that matter, is less important than harmonizing legal cultures for an optimum co-existence. The peaceful co-existence of discordant legal cultures is premised less on their formal equality than on sustained commitment to removing overt discord. However limited the role of Conflict of Laws may seem to some, it is able to add to what the models of multiculturalism promise. To the extent that it is able to kick-start co-ordination among diverse legal systems and prevent courts from refusing to grapple with transformative accommodation, it makes itself felt at various points along law’s evolutionary path.

References Books Bekker, JC, C Rautenbach and NMI Goolam. Introduction to Legal Pluralism in South Africa (2ed). Durban: Lexis Nexis Butterworths, 2006. Bennett, TW. Customary Law in South Africa. Cape Town: Juta and Company Ltd, 2004. Burns, Y. Administrative Law under the 1996 Constitution (1ed). Durban: Butterworths, 1999. Cachalia, F. The Future of Muslim family law in South Africa Occasional Paper 12. Centre for Applied Legal Studies, 1991. Church, J, C Schulze, and H Strydom. Human Rights from a Comparative and International Law Perspective. Unisa, Pretoria: Unisa Press, 2007. Forsyth, CF. Private International Law. (4ed). Lansdowne: Juta, 2003. Graveson, RH. Conflict of Laws: Private International Law (7ed). London: Sweet & Maxwell, 1974. Hickling, RH, and WN Aun. Conflict of Laws in Malaysia. Malaysia: Butterworths, 1995. Hosten, WJ, AB Edwards, F Bosman and J Church. Introduction to South African Law and Legal Theory (2ed) (revised). Durban: Butterworths, 1998. North, P & Fawcett, J. Cheshire & North’s Private International Law (13ed). Oxford, UK: Oxford University Press, 2004. Shachar, A. Multicultural Jurisdictions – Cultural Differences and Women’s Rights. Cambridge, UK: Cambridge University Press, 2001. Whorf, BL. Language, Thought and Reality. Cambridge, Mass.: Technology Press of Massachusetts/New York: John Wiley/London: Chapman & Hall, 1956.

104

See footnote 30 above. The sentiments expressed recently by the Archbishop of Canterbury (Rowan Williams ‘Islam in English Law: Civil and Religious Law in England’ lecture delivered on 7 February 2008 from Lambeth Palace) on the possibility of religious courts and devising a scheme that allows for supplementary jurisdiction in family law matters in minority communities caused a stirring in and beyond Britain. Building a better social environment for coexistence and collaboration in a multicultural state depends in part on a clarification of ideas through academic dialogue on law and multicultural society. The public mud-slinging that followed was a sad reflection of how closed religious communities can be at the level of opinions and ideas. It undermined cultural self-understanding to a great extent.


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Case Law Amod v Multilateral Motor Vehicle Accident Fund 1999 (4) SA 1319 (SCA). Bhe and Others v The Magistrate, Khayelitsha and Others 2005 (1) BCLR 1 (CC). Daniels v Campbell NO and Others 2004 (7) BCLR 735 (CC); 2004 (5) SA 331 (CC). Ismail v Ismail 1983 (1) SA 100 7 (A). Kalla v The Master 1995 (1) SA 261 (T). Khan v Khan 2005 (2) SA 272 (T). Nkondi v Nkondi 2004 (4) SA 790 (C). Ryland v Edros 1997 2 SA 690 (C). S v Thebus 2003 (6) SA 505 (CC). Thompson v Scholz 1999 (1) SA 232 (C). Toufeeqah Ismail v Yusuf and Nafisa Ismail and Another Case no 2002/06 (ECD) (unreported). World Wide Web and Electronic Journals Commission for Gender Equality http://www.cge.org.za/ Manjoo, R. (ed) Project Report 2005-2007: The Recognition of Muslim Personal Laws in South Africa: Implications for Women’s Human Rights. Working paper Harvard (July 2007). http://www.law.harvard.edu. Neels, JL. Commentary on the Private International Law Aspects of the Islamic Marriages Proposed Draft Bill 2002. http://general.rau.ac.za/law. Örücü, E. “Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition” Electronic Journal of Comparative Law. 4.1 (June 2000). http://www.ejcl.org/41/abs41-1.html. Shah, P. “Globalisation and the Challenge of Asian Legal Transplants in Europe” Singapore Journal of Legal Studies (2005). www.alanwatson.org/asian_transplants.pdf South African Law Reform Commission, Islamic Marriages and Related Matters Discussion Paper Project 59: December 2001. http://www.doj.gov.za/salrc/dpapers/dp101_prj59/dp101_prj59_2002.pdf South African Law Reform Commission, Islamic Marriages and Related Matters Report Project 59: July 2003. www.justice.gov.za/salrc/reports/r_prj59_2003jul.pdf Tetley, W. “Mixed Jurisdictions: Common Law vs Civil Law (Codified and Uncodified)”. www.unidroit.org.

About the Author Dr. Hendrika C. Roodt Christa Roodt taught conflict of laws and comparative law at the University of South Africa before joining the University of Aberdeen, Scotland. She takes an active interest in methodological pluralism, management of diversity and legal integration. Her interest in conflict of laws cuts across theory, doctrine and method, and she has explored some of the implications of cultural heritage law for conflict of laws. Since the broad themes in her research lie at the intersection of legal systems, traditions, cultures and paradigms, she finds contemporary research topics related to culture and law appealing, and she has already published on issues that are of relevance to cultural planning in South Africa. In view of the hybrid nature of South African law and the secular nature of South African society based on a written Constitution, the starting point of much of her research is ‘transsystemic’ to some extent.

EDITORS Mary Kalantzis, University of Illinois, Urbana-Champaign, USA. Paul James, RMIT University, Melbourne, Australia.

EDITORIAL ADVISORY BOARD Ien Ang, University of Western Sydney, Australia. Joanna van Antwerpen, Research and Statistics, City of Amsterdam, The Netherlands. Samuel Aroni, University of California, Los Angeles, USA. Duane Champagne, University of California, Los Angeles, USA. Guosheng Y. Chen, RMIT University, Melbourne, Australia. Jock Collins, University of Technology, Sydney, Australia. Bill Cope, University of Illinois, Urbana-Champaign, USA. Heather Marion D'Cruz, Deakin University, Geelong, Australia. James Early, Smithsonian Institution, Washington, DC, USA. Denise Egéa-Kuehne, Louisiana State University, Baton Rouge, USA. Amareswar Galla, The University of Queensland and Pacific Asia Observatory for Cultural Diversity in Human Development. Grethe van Geffen, Seba Cultuurmanagement, Amsterdam, The Netherlands. Barry Gills, University of Newcastle, UK. Jackie Huggins, University of Queensland, Australia. Andrew Jakubowicz, University of Technology, Sydney, Australia. Ha Jingxiong, Central University of Nationalities, Beijing, China. Jack Levin, Northeastern University, Boston, Massachusetts, USA. Peter McLaren, University of California, Los Angeles, USA. Joe Melcher, Xavier University of Louisiana, New Orleans, USA. Greg Meyjes, Solidaris Intercultural Services L.L.C, Falls Church, VA, USA. Walter Mignolo, Duke University, USA. Brendan O'Leary, University of Pennsylvania, USA. Aihwa Ong, University of California, Berkeley, USA. Peter Phipps, RMIT University, Melbourne, Australia. Ronald Prins, Bos en Lommer Neighbourhood Council, Amsterdam-West, The Netherlands. Peter Sellars, Theatre, Opera and Film Director. Michael Shapiro, University of Hawai'i, USA. David S. Silverman, Valley City State University, North Dakota, USA. Martijn F.E. Stegge, Diversity Platform, City of Amsterdam, The Netherlands. Geoff Stokes, Deakin University, Melbourne, Australia. Terry Threadgold, Cardiff University, Wales, UK. Mililani Trask, Indigenous Expert to the Permanent Forum on Indigenous Issues for the Economic Council of the UN Assembly, Hawai’i, USA. Marij Urlings, School of Health Inholland University, Amsterdam-Diemen, The Netherlands. Rob Walker, Keele University, UK. Ning Wang, Tsinghua University, Beijing, China. Owens Wiwa, African Environmental and Human Development Agency, Toronto, Canada.

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