Judicial Intervention in Facilitating Legal Recognition (and Regulation) of Muslim Family Law in Muslim-Minority Countries: The Case of South Africa

Abstract

In 2018, a groundbreaking judgment was delivered by a full bench of the Western Cape High Court in the matter of the Women’s Legal Centre Trust v. President of South Africa. This case followed a long line of judgments spanning some twenty-one years in which the South African judiciary afforded limited recognition to aspects of Muslim marriages. In this decision, the Western Cape High Court ordered the South African State to prepare, initiate, enact, and implement legislation that provides for the recognition and regulation of the consequences of Muslim marriages within twelve months of the date of judgment. In this Article, the author examines the following questions: Why has the South African State not yet recognized Muslim marriages despite repeated calls to do so by South African Muslim communities? Why has it taken a court to instruct the South African State to enact legislation to recognize Muslim marriages? What, if any, are the human rights implications of the judgment? And what difference, if any, will the judgment make in the lives of Muslims? The author argues that, despite the groundbreaking nature of the judgment, it does not go far enough to ensure sufficient protection for the human rights of Muslim women and that the manner in which the Western Cape High Court’s order is implemented could perpetuate the undermining of Muslim women’s human rights.