Faro v Bingham no and Others (4466/2013) (2013) Zawchc 159 25 October-2013

ON 24 FEBRUARY 2014.

Faro v Bingham NO and Others (4466/2013) [2013] ZAWCHC 159 (25 October 2013)

 The above case whose link I have stated below  highlights the vulnerability of women in  customary Muslim marriages. 

1. We are familiar with the Constitutional Court decision in Daniels v Campbell NO & Others [2004] ZACC 14; 2004 (5) SA 331 (CC)  which determined that the word ‘spouse’ as used in the Intestate Succession Act 81 of 1987 and the word ‘survivor’ as used in Maintenance of Surviving Spouses Act 27 of 1990 were to be interpreted as including the surviving partner to a monogamous Muslim marriage, even though such a marriage may not have been solemnised by a marriage officer and thus not constitute a marriage for purposes of civil law. 

2. The contrary view was said to be a discriminatory interpretation out of step with ‘the new ethos of tolerance, pluralism and religious freedom which had consolidated itself even before the adoption of the interim Constitution’ (para 24). 

3. Then came Hassam v Jacobs NO & Others 2009 (5) SA 572 (CC). 

4.Here  s 1(4)(f) of the Intestate Succession Act was found to be unconstitutional, resulting in an order which afforded protection to multiple spouses in a polygamous Muslim marriage. 

5. At present, however, there is no statute which deals comprehensively with the legal position of persons married by Islamic rites.

6. Importantly for purposes of this case there is, as the judge clearly points out no legislation regulating the dissolution of such unions.

7. And because such a union is not regarded as a ‘marriage’ for purposes of the Divorce Act 70 of 1979, the latter Act does not regulate the dissolution of Islamic marriages (except where they were solemnised by a marriage officer in accordance with our law).

8. The judge expressed alarm that a husband in an Islamic union may throw off his wife with  such relative ease and informality.

9. In accordance with existing  law, a dissolution of an Islamic marriage in a manner recognised by the Islamic faith results in the woman no longer being a surviving spouse for purposes of the Intestate Succession Act and the Maintenance of Surviving Spouses Act.

10. This is what the case exposed.The facts of this case affords an  alarming illustration of a  woman who is a wife according to  vulnerability. 

11. The facts briefly stated  is as follows. 

11.1. The applicant began living with the late Moosa Ely during November 2006. Because Moosa Ely shares a surname with the second, third and fourth respondents I shall refer to him as Moosa and shall refer to the second, third and fourth respondents by their first names (Mujaid, Sharief and Tashrick). Moosa had an adult son, Tashrick, from a prior marriage. 

11.2. The applicant and Moosa had their first child, Sharief, during November 2007. On 28 March 2008 Moosa and the applicant got married in accordance with Islamic rites. Imam Saban officiated. 

11.3. Because Imam Saban was not a licensed marriage officer, the union did not constitute a marriage for purposes of civil law.

12. During 2009 Moosa was diagnosed with lung cancer. According to the applicant, she cared for him during his illness. 

13. On the morning of 24 August 2009 the applicant and Moosa had an argument about his alleged failure to give her money for food. After the argument she accompanied him for chemotherapy. 

14. On their way home Moosa stopped their car at the home of Imam Saban. He told the Imam that he was sick and tired of the applicant and wanted the Imam to pronounce a Talāq. Without talking to the applicant Imam Saban gave Moosa a Talāq certificate.

15. In accordance with Islamic rites, this dissolved the marriage. The applicant was seven months pregnant with their second child, Mujaid, who was born on 26 October 2009

16. It’s trite, as i understand it, that the form of Talāq pronounced by Imam Saban was revocable during the so-called ʼIddah period. 

17. In the applicant’s case, because she was pregnant the ʼIddah period expired when she gave birth to the child she was carrying. 

18. The predominant view in the Islamic religion is that the Talāq may be revoked not only by express words but by the resumption of sexual relations between the parties. 

19. The applicant avers that she and Moosa resumed intimacy shortly after 24 August 2009 and that no further Talāq was pronounced before Moosa died on 4 March 2010.

20. Naziema Bardien (‘Bardien’) is Moosa’s adult daughter from an earlier marriage. 

20.1. She considered herself to have an interest in Moosa’s estate. 

20.2. On 8 April 2010, and without the applicant’s knowledge, Bardien obtained from the MJC a certificate declaring that the marriage between Moosa and the applicant had been annulled. 

2.3. This was presumably based on the Talāq pronounced by Imam Saban.

 # If you expected me to summarise  the whose case, you’re wrong. Now that i whet your interest, read on as it is fit for debate and discussion

http://www.saflii.org.za/za/cases/ZAWCHC/2013/159.html

Qwelane bashes Equality Act

Johannesburg -South African High Commissioner to Uganda Jon Qwelane has described parts of the Promotion of Equality and Prevention of Unfair Discrimination Act as “constitutionally abhorrent”.

Qwelane makes the claim in papers filed at the Johannesburg High Court, where he has hauled in Justice Minister Jeff Radebe, the Human Rights Commission (HRC), the Freedom of Expression Institute and the Psychological Society of South Africa in his challenge to the constitutionality of certain provisions of the Equality Act.

In a July 2008 Sunday Sun column titled “Call me names, but gay is NOT okay…”, the veteran journalist questioned what “these people have against the natural order of things”.

He declared: “And by the way, please tell the HRC that I totally refuse to withdraw or apologise for my views” – neither would he write to the commission explaining his thoughts, he said.

The HRC is opposing Qwelane’s constitutional challenge. Spokesman Isaac Mangena said the purpose of the act was “to realise the principles enshrined in our constitution” – a central principal being that of equality.

“There is nothing abhorrent about the Equality Act’s provisions.”

Qwelane says in court papers: “Legal certainty, especially in a scenario where criminal action may follow, is sacrosanct in a constitutional democracy, with the result that the vagueness cannot be permitted to be left unattended since it has the potential of having a chilling effect on legitimate freedom of expression.”

The impugned provisions did not pass constitutional muster and must be invalidated due to their inconsistency, he said.

Qwelane is challenging the constitutionality of sections 10(1), read with sections one and 12, and section 11 of the Equality Act, saying they are framed in a manner that is broader than the narrow ambit of speech that the constitution seeks to exclude from its protection. Section 10(1) bars anyone from publishing, propagating, advocating or communicating words based on one or more of the prohibited grounds that could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or to incite harm and promote or propagate hatred.

The act’s section 12 prevents the dissemination or broadcasting of any information with a clear intention to unfairly discriminate against any person.

Bona fide artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the constitution is not precluded by this section.

But Qwelane insists his column was not hate speech because it did not fall within the ambit of excluded speech, which includes advocacy of hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm and incitement of imminent violence among others.

The Bill of Rights protects the right to freedom of expression, which includes freedom of the press and other media, artistic creativity and academic freedom and freedom of scientific research.

International relations spokesman Clayson Monyela told The Sunday Independent Qwelane’s case was a personal matter that predated his appointment as high commissioner and had nothing to do with the department.

Qwelane was found guilty of hate speech in May 2011 and ordered to apologise unconditionally to the gay and lesbian community, and pay R100 000 to the HRC.

In September that year, he successfully applied for the hate speech finding to be rescinded.

In March 2010, then ANC Youth League leader Julius Malema was ordered to pay R50 000 to the People Opposed to Women Abuse after he was found to have infringed on the rights of women to have their dignity respected and protected.