A discussion of Moosa NO and others v Harnaker and others illustrating the need for legal recognition of Muslim marriages in South Africa
Authors Waheeda Amien
Affiliations: Associate Professor, Faculty of Law, University of Cape Town. Attorney of the High Court of South Africa. Member of the Executive Body of the International Commission on Legal Pluralism.
Source: Journal of Comparative Law in Africa, Volume 6 Issue 1, p. 115 – 130
In this paper, one of the more recent decisions illustrating the South African judiciary’s intervention in the context of Muslim marriages is discussed namely, Moosa NO and Others v Harnaker and Others, which was decided in 2018. The paper highlights several issues through a discussion of the Western Cape High Court and Constitutional Court judgments in the Moosa NO case. For instance, notwithstanding previously decided cases, which permitted Muslim spouses to benefit from specific pieces of legislation, the Moosa NO case reinforces the fact that non-recognition of Muslim marriages in South Africa causes Muslim spouses, especially wives to continue to be excluded from legislation that has not been legally challenged for excluding Muslim spouses. The case confirms that failure to afford legal recognition to Muslim marriages results in the undermining of the rights to equality and human dignity of Muslim spouses, particularly Muslim wives. The case further illustrates the South African judiciary’s continued willingness to come to the aid of parties married by Muslim rites by among others, bringing them within the ambit of legislation that they are otherwise excluded from. Finally, the case demonstrates the need for official recognition of Muslim marriages to obviate the need for Muslim women having to approach the courts each time they require access to legislative (and other) benefits that their African customary law and civil law counterparts enjoy.