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n Stellenbosch Law Review = Stellenbosch Regstydskrif - The impact and consequences of on Polygynous Muslim Marriages [a discussion of 2009 11 BCLR 1148 (CC)]

Volume 22, Issue 2
  • ISSN : 1016-4359
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Abstract

The non-recognition of Muslim marriages under South African legislation poses serious challenges for the many Muslims living in South Africa, especially for those who are only married according to Islamic Law. This note looks at how the court addressed this issue in the case of 2009 11 BCLR 1148 (CC). The note commences with a brief exploration of the prior jurisprudence pertaining to Muslim marriages, and then goes on to unpacking judgments of both the High Court and the Constitutional Court. In this note the author explores the controversy surrounding whether the High Court correctly applied the Muslim law pertaining to divorce, when the court concluded that a marriage did exist between the deceased and both the applicant and the third respondent, respectively, at the time of the deceased's death. The analysis then turns to look at the impact and consequences of both the decisions on polygynous Muslim marriages in South Africa, in particular whether the result of the case is congruent with the principles of succession as set out in the law. The note also discusses Nkabinda J's disclaimer in the judgment of the Constitutional Court regarding the recognition of law in South African courts, and addresses the question of whether the Constitutional Court could have better used this case as an opportunity to give full legal recognition to Muslim marriages.

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/content/ju_slr/22/2/EJC54788
2011-01-01
2016-12-09

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