The following discussion paper is a discussion which deals with  South Africa's efforts towards Personal Family Law

At this special meeting of the Jamiat-KZN, the following inputs regarding Discussion Paper 101, were noted:

1. There are two key aspects of the Discussion Paper 101 that require comment;

1.1. The pivotal issue, relating to the eventual execution and implementation of this Act through the system of appointment of two assessors – this could be considered as the focal point of the act. A great deal of concern was noted in this respect

1.2. Other issues relating to the substantive aspects of Shari'ah within the act that requires modification and reformulation such as:

    * (p.51-52): Revision of Islamic definitions
    * (p.51): Grounds for Faskh
    * (p.52) 5.1: Age of consent
    * (p.52) 5.3: Parental/guardian consent
    * (p.53) 6.2: Compulsory registration
    * (p.54) 6.5: No mention of witnesses and dower
    * (p.56) 8.6/7/10: The issue of regulation of polygyny; the fine of R50-000
    * (p.58) 9.2.c: R50-000 fine of non-registration of divorce
    * (p.59) 9.5: Flagrant contravention of Khul'a laws
    * (p.63) 9.7.b.i: Distribution of property based on a weak view of Shami
    * (p.63) 11.1: Custody related problems
    * (p.65) 12.2.c: Maintenance for breast feeding 
    * (p.65) 12.4: Problems relating to maintenance

* which shall be expounded in greater detail further on in this document.

2. Several concerns were expressed regarding the system of assessors working along with the judge and on the question of the judgement of the court being based on the view of the prevailing majority (p.42; 5.5) Among the main concerns:

2.1. the vagueness and uncertainty regarding the qualifications of assessors – what is construed as 'specialized knowledge' of Islamic Law (p.66) – this requires elucidation. It is proposed that the minimum requirement should include knowledge of the science of Quranic Interpretation and it's Principles (Tafseer & Usul-Tafseer), Hadith Text and Sciences (Hadith & Usul-Hadith), Islamic Law and Jurisprudence (Fiqh & Usul-Fiqh) and the science of Islamic legal verdicts (Usul-Iftaa) with some practical experience in this field under a bona fide Islamic institute. If not included in the act itself, it needs to be at least expand upon in a separate appendix or supplement to the Minister of Justice when considering appointments of assessors

2.2. the process of appointment of assessors (p.66) – this process should be based upon some acceptable mechanism such as an advisory Board to the Minister of Justice. The composition of this Board needs to reflect a wide representation of the Muslim community

2.3. the viability of  this approach vis-à-vis the issue of differences of juristic schools – assessors belonging to two different juristic schools in a single case could lead to conflicting interpretations. This fact requires serious consideration.

2.4. the problems posed by legal precedents in the case of errant judgements

2.5. the absence of assessors in the appeal process (p.66) – this could pose an independent set of problems

2.6. since this act is to operate within the dominant legal system, the issue of the law of evidence could pose a serious problem. Would the Islamic law of evidence be considered or would the South African law of evidence take precedence? This could influence the outcome of the judgement in a substantial manner. Due consideration is to be granted to overcoming this matter. 

3. The concern of subjecting Shari'ah Law to a dominant legal system and judicial system that is foreign and distinct to the Shari'ah is one that surfaces in every discussion on this subject. It is a concern that cannot be dismissed lightly and needs very serious consideration, especially when it is viewed in the backdrop of immense problems encountered with the execution of MPL [Muslim Personal Law] in India as an example. The problem of interpretation of Islamic Law by secular judges in India is a recurring one that has fostered bitterness and resentment in the Muslim community of that country, even leading at times to civil unrest and public agitation as was witnessed as an outcome of the Shah Banu case.

A brief insight into the interference of secular courts and judges in Shari'ah Law are highlighted in an article that appeared in the Journal: Institute of Muslim Minority Affairs. The article entitled: "Muslim Personal Law in India: An analysis of Judicial Reform" written by Syed Khalid Rashid and Arshad Masood, excerpts of which are quoted here:

3.1. "But the greatest threat to the corpus of Muslim Law is the one that is posed by the "reformist" efforts of some members of the Indian judiciary."

3.2. A leading judge, V.R.Krishna Iyer wrote: Since first things must be first, let us tackle the job of modernizing the Islamic Law… All endeavours for Personal Law reform are part of operation secularization."

3.3. "Courts before whom the disputes come up for decision handed down judgements that were not strictly in accordance with the Shari'ah and the essential tenets of the Mohammadan Law"

3.4. "Polygamy as grounds for divorce: In Ithwari vs. Asghari, Justice Dhawan held that the second marriage of a Muslim ipso facto amounts to mental cruelty for the first wife, and on its basis she can claim divorce. Ithwari's case may now be successfully cited by her (a Muslim wife) in support of her claim for divorce."

3.5. "The above discussion of a few judicial decisions brings out clearly the libertarian trend among some Indian judges in interpreting Muslim Law"

3.6. "We believe the courts are hardly in a position to assume the role of social reformers, particularly in religiously dominated areas of Muslim Personal Law."

"(it) shows that the court has often assumed a reformist stand even though the Constitution did not give them the power to introduce such notions into the problems before them."

3.7. "Justice Krishna Iyer has taken the view that it is up to the judiciary to reform the law. This is even supported by other judges." 

These are some of the problems being encountered despite a long history of Muslim Personal Law in India, which raises justified apprehensions of a similar experience in this country not being remote and far-fetched. The fears raised by the Indian experience and the concerns of the Shari'ah being subjected to the 'whims of judges' prompted the consideration of alternative approaches to the execution of this act such as the inclusion of mandatory mediation before formal court proceedings and the option of arbitration, if it is feasible, due to the greater degree of flexibility and other attendant advantages of this option. The nagging apprehension of the possible interference of courts in Shari'ah Law and the call for an alternative mechanism to address social problems of Muslims can be best be summed up in the words of prominent Canadian lawyer, Syed Mumtaz Ali who successfully fought for mandatory mediation in Canadian Law: "We want to live according to these provisions, we don't want the bother of the court, or to live at the whims of judges". The discussion paper (p.41) does make encouraging reference to 'mediation' being an option that could be adopted by the Muslim community. These options need to be explored more deeply with a view to considering 'mandatory mediation' as an integral part of the Bill. The Jamiats are already working fervently towards the advancement of mediation and arbitration as a conflict resolution mechanism and gratifying progress has been noted in this endeavour. If this proposal meets the approval of the Project Committee, the above program could be enhanced, advanced and promoted.

4. In light of the manifest benefits of the mediation/arbitration approach, this is a system that is finding favour and approval in several countries of the world. On-going research is required to study and compile a list of such countries and the details of the legislation in this respect, but examples of Canada, Trinidad & Tobago, Australia, Malaysia, Singapore and the US can be cited where this system is already operational. In Canada, the Muslim community have since '86 been working towards a mandatory mediation mechanism to resolve their matrimonial disputes. In '94, the Ontario Government set-up a Review Task Force which recommended a "system of alternative dispute resolution". Mediation has since been mandatory for all civil cases including family law from May 1999. Citing justification for this endeavour, prominent Canadian lawyer, Syed Mumtaz Ali said: "We want to live according to these provisions, we don't want the bother of the court, or to live at the whims of judges".

5. A short list of some of the benefits of the mediation/arbitration based option include but are not limited to the following:

5.1. Choice of mediators/arbitrators for the involved parties – this accords much flexibility in the issue of different juristic (Hanafi, Shafi, Maliki, Hambali) or even theological schools (Ja'faris, Salafis, etc.)

5.2. Relatively reduced costs

5.3. Flexibility in time and venue, less formality

5.4. Greater confidentiality; avoids washing of linen in public

5.5. Minimal backlogs

5.6. Freedom to adjudicate on the basis of Islamic law of evidence

Undoubtedly, research and study is required to establish the viability of this option in relation to local requirements. A comparative study of existing models in other countries may be a suitable starting point for this exercise.

6. Other issues relating to the substantive aspects of Shari'ah within the act that require reformulation are raised herein as follows:

(p.51-52): Islamic definitions or Shari'ah Terminology within the act need slight revision so as to be more accurate and encompassing. In Khul'a (p.52), the inclusion of monetary or material exchange needs to be considered in the definition. In Talaq (p.52), some reference to Kinayah-Talaaq is required and so on. Definitions should either be given in entirety; or briefly, with the qualifying phrase "according to Islamic Law" or something similar. A uniform and consistent approach in this respect would be more suitable.

(p.51): Grounds for Faskh. As stated above, the definition of Faskh should either be given in entirety; or briefly, with the qualifying phrase "according to Islamic Law" or something similar. The latter option would be more suitable in this instance as the grounds for Faskh are extensive and qualified by details. Certain points require clarification in the definition of Faskh:

d. mentally ill (permanent or temporary) needs qualified definition

f. sentence construction does not sound correct?

i. 'irretrievably broken down' – this is a highly subjective factor. Can this constitute a ground for annulment and to what extent? This matter needs further consideration.

(p.52) 5.1: The age issue raises certain problems in that a substantial number of marriages in the Muslim community take place before the age of 18. If ministerial consent is withheld for whatever reason, would such a couple be denied the benefits of this Act under such circumstances?

(p.52) 5.3: If the spouses are minor (under 18), the permission of parents/guardians is required for the validity of the marriage. This is in conflict with Islamic Law which does not require permission of parents/ guardians except in Shafi' Fiqh for a virgin.

(p.53) 6.2: It shall be the duty of the parties to cause such marriages to be registered. This should be left as an optional matter as it infringes on the individual's choice and constitutional right to register or not to register.

(p.54) 6.5: The formulae to validate the marriage have been mentioned but no mention is made of witnesses and dower!

(p.56) 8.6/7/10: The issue of polygyny is raised in this section. Several concerns were expressed in this area of the act such as the regulation of polygyny by subjecting it to a subjective test of the ability of the husband to administer Adl (justice) to both wives. Is there any substantiation of this is the corpus of Islamic Law? Is there a precedent of such regulation of polygyny in the texts of Prophetic tradition? It appears as though there is a precedent of regulating marriage to women of Ahl-al-Kitab in the legal edicts of Hazrat Umar (RA) – refer p.45, 5.18. But can this be extended to the issue of polygyny and if so, on what basis? The early era of Islamic history bears witness to the extensive and wide practice of polygyny. Are there any recorded instances of state or judicial regulation of this practice in that era? The act also seems to give overt consideration to financial means as a criterion for polygynous marriages. However, financial capacity of the husband should then also be a consideration in the first marriage. And so too the husband's propensity for Adl (justice) and the absence of Zulm (oppression). As a counter-argument, should not the first marriage also be subjected to some type of regulation and subjective test by the court to ensure the upholding of adl by the husband as well as his financial capacity to maintain the wife? In short, is there any legal basis for the regulation of polygyny as set out in the discussion paper or not (p.44; 5.18)? Perhaps this is an issue that requires further research and investigation. p.59 refers to "no prejudice to existing spouses". What is meant by this and what is the basis for this? Furthermore, the fine of R50-000 imposed on the husband appears excessive and disproportionate and should either be expunged or reconsidered.

(p.58) 9.2.a: registration of the divorce should be no later than 7 days – the time period should be extended to at least 21 days.

9.2.c: the fine of non-registration at R50-000 appears excessive and disproportionate

9.2.e: the power to decide the validity of the Talaq should not rest with the marriage registrar but a judicial authority – would the marriage registrar have the necessary qualifications to decide this?

9.2.g: when the act wishes to regulate and record the instance and number of divorces issued, it would be appropriate to call for a registration of previous divorces issued for the purposes of record keeping and regulation

(p.59) 9.5: is in flagrant contravention of the Islamic Law governing Khul'a. Interestingly, the very issue of the court wanting to fix the amount in a disputed Khul'a case in Pakistan resulted in the preparation of a detailed refutation of this ruling by the eminent jurist of the time, H.Mufti Taqi Usmani in his work Fiqhi-Maqaalaat v.2, p.143. Khul'a is essentially an institution that requires the mutual consent of the spouses as its core constituent, and the intervention of the court flies in the face of the very definition of Khul'a, the learned scholar has proven from a wide variety of sources that it is inadmissible. If the marriage cannot be terminated through Khul'a, the wife still has the option of bringing a Faskh application against the husband.

(p.63) 9.7.b.i: refers to "contributions of spouses towards the family business during the subsistence of the marriage." This view appears to be premised on a ruling of Shami. This is however considered a weak view as it is narrated with the expression "Qeela" which indicates towards weakness of a view. Could such a weak view serve as a basis for the above ruling in this act? Requires further research.

(p.63) 11.1: "Custody: the court shall at all times have regard to the welfare and best interests of the child as the paramount consideration." Whilst it is appreciated that the court is considered the upper guardian of minors at all times, Islamic Law has set out the rules regarding the custody of children in exhaustive detail. The structuring of this part of the act seems to give precedence to the ruling of the court over the Islamic legislation and should hence be revisited. The age of custody for boys and girls set out in the act does not conform with the Islamic Law on this issue which rules the ages for boys and girls as 7 and 9 respectively. All the other provisions regarding custody, viz. 11.3. and 11.4. need to be subjected to Islamic legislation on Hadanah (custody) rather than the jurisdiction of the court. For instance, in the absence of parents, the Islamic Law has set out elaborate rules on the line of succession of guardians. This is not mentioned in the act at any point.

(p.65) 12.2.c: "the wife shall be entitled to maintenance for breast feeding for a period of two years" requires reviewing. Is the wife entitled to maintenance for breast feeding or ujrah (a fee)? Generally it is understood that if the wife opts to breast feed her child, she will be entitled to a remuneration based on a market related rate and this shall be limited to the period of breast feeding which shall not exceed two years. The act fixes the period at two years without consideration of the above detail.

(p.65) 12.2.d: "a major child is obliged to maintain his or her needy parents" appears totally incongruous and unrelated in the context of this act and should hence be excised. However, it could be replaced by a general rule covering all the obligations of maintenance laid out by Islamic Law in a single statement.

 (p.65) 12.4: the sweeping generalization in terms of the courts' powers to determine the amounts of maintenance could be prone to misinterpretation as Islamic Law has its own values and viewpoints as to what maybe considered fair and just and these factors need to be granted due consideration. How will this be regulated by the act?

7. Further considerations other than the above issues:

7.1. Islamic Law is referred to extensively in the act but no attempt has been made at defining Islamic Law? Since diverse interpretations of Islamic Law prevail, problems in this respect could arise in the foreseeable future. How would the courts interpret Islamic Law and which interpretation would prevail? This is a matter that needs to be carefully thought out.

7.2. Qazi Mujahidul-Islam pointed out the importance of including the definition of "Muslim" in the act as it has a major bearing on the interpretation of the act. Qazi Sahib revealed that he had formulated an acceptable definition of "Muslim" after great toil and effort. This definition could be prevailed of.

7.3. Many details relating to Islamic Marriages, Divorce, Maintenance, Custody and so on seem to have been omitted in the act – perhaps by design and for good cause. However, if this is a fact, it infinitely reinforces the importance of appointing highly qualified and competent persons to serve as assessors, failing which the entire exercise of enacting this act could be a dismal fiasco.

And Allah Ta'ala knows best

Zubair Bayat
On behalf of Jamiatul-Ulama-KZN
8 Zil-Qa'dah 1422 / 1 February 2002