Dear Students,

From the earliest times of the Dutch settlement at the Cape, the personal law of the
Muslims was not recognised. This has caused grave hardship, not only for spouses
in Muslim marriages, but also for the children of such marriages who have been
regarded as having been born out of wedlock. Although legislation has somewhat
improved the position of Muslim wives and children, Muslim marriages are still not
officially recognised today.

The conflict between the values that underlie Islamic law and those that underlie
Western common law is especially felt in areas such as marriage and the law of
succession. Initially the attitude of the courts was that Muslim marriages could not be
recognised because they are potentially polygynous and therefore are against public
policy.

Certainly, such marriages could not be against the public policy of the Muslim
community in South Africa nor, for that matter, against the public policy of the
majority of South Africa's population, since indigenous African marriages are also
potentially polygynous.

During the 1990s, the High Court indicated its willingness to embrace a new
approach to Muslim marriages.

Please make sure that you understand how the courts developed the law with
regard to Muslim marriages.

1.) Ryland v Edros 1997 (2) SA 690 (C) - the court stated that the values of human
dignity, equality and freedom must always be at the forefront when the Constitution
is interpreted. The court added that the values of equality and diversity are very
important values which form the basis of our new Constitution.

2.) Amod v Multilateral Motor Vehicle Accidents Fund 1999 (4) SA 1319 (SCA) -
the Supreme Court of Appeal recognised a Muslim widow's claim for loss of support
following the unlawful death of her husband.

3.) Daniels v Campbell NO 2004 (7) BCLR 735 (CC) - the Constitutional Court held
that the natural interpretation of the word ``spouse'' in the Intestate Succession Act
81 of 1987 and in the Maintenance of Surviving Spouses Act 27 of 1990 should
include partners in a monogamous Muslim marriage (that is a marriage where one
man is married to one wife).

4.) Hassam v Jacobs and Others (2008) 4 All SA 350 (C) the Cape High Court
declared that the word ``spouse'' in the Intestate Succession Act and
the Maintenance of Surviving Spouses Act should be interpreted so as to include
spouses in a polygynous Muslim marriage (that is a marriage where one man is
simultaneously married to two or more wives) and that they should be afforded the
same benefits enjoyed by the surviving spouses in a de facto monogamous Muslim
marriage. This means that with regard to these two pieces of legislation polygynous
Muslim marriages will no longer be regarded as contrary to public policy. The court
added that the two Acts referred to above should be interpreted in a manner which is
consistent with the foundational values of human dignity, equality and freedom as
enshrined in the Bill of Rights. (See page 17 - 18).

The orders of the Cape High Court were confirmed by the Constitutional Court in
2009 and the legal position is now governed by the Hassam case.

Finally, the court also referred to the fact that the South African Law Reform
Commission, in a proposed Bill for the Recognition of Islamic Marriages, has
recommended that polygynous Muslim marriages be recognised. The Bill makes
provision for, among other things, the status and capacity of the spouses and the
dissolution of Muslim marriages.

Islamic law does not yet enjoy official recognition in this country. However, the
Constitution makes it possible for religious laws to be recognised and the Law
Reform Commission is investigating the position of Islamic marriages.

Please work through activity 2.2 to assess whether you understand this
section