Surah Yasin,
a Commentary

As is characteristic of  Meccan surahs, the themes of monotheism and omnipotence are central features. The confirmations and promises made by Allah on oath are replete with the concept of Tawhīd which the revelation sought to entrench.

Welcome to Law and Sharia Consultants

Law and Sharia Consultants is a consultancy group based in Cape Town, South Africa.

Apart from promoting the research of various issues pertaining to the application of Muslim Personal Law in South Africa, this website also highlights the services we offer and acts as a resource for our outreach initiatives.

MEDIA STATEMENT BY THE SOUTH AFRICAN LAW COMMISSION CONCERNING ITS INVESTIGATION INTO ISLAMIC MARRIAGES AND RELATED MATTERS (PROJECT 59), DISCUSSION PAPER 101

The South African Law Commission has approved a Discussion Paper containing preliminary recommendations and a proposed draft Bill on the recognition of Islamic marriages at its meeting on 19 November 2001. The Discussion Paper will be distributed both nationally and internationally for purposes of eliciting comment on the Commission's proposals relating to the statutory recognition of such marriages.

Historically, and until the landmark 1999 Supreme Court of Appeal decision in Amod v Multilateral Motor Vehicle Accidents Fund, a marriage contracted according to Islamic law was regarded by South African courts as null and void and as being contrary to public policy, with the result that the marriage and its consequences were not legally recognised in any form. The decision in Amod, however, recognised a monogamous Islamic marriage for the purposes of support only, and did not deal with other crucial issues such as polygamy and the status of respective spouses, maintenance obligations, proprietary consequences of Islamic marriages, termination, etc. The result is that gross inequities and hardships arising from the non-recognition of Islamic marriages still prevail.

The Law Commission published an Issue Paper for public comment in July 2000. The purpose of the Issue Paper was to identify the issues and problem areas, arising out of the investigation, with a view to maximum consultation with all interested parties and bodies, so as to obtain their inputs in arriving at an appropriate solution to the issues and problems identified in that document. The lively interest shown in the Issue Paper was illustrated by the significant number of comments on the proposals in that paper. These comments were duly taken into account by the Commission's project committee during the process of developing a draft Bill.

The proposed draft Bill contained and explained in the Discussion Paper draws a clear distinction between an Islamic marriage and a civil marriage. It is only Islamic marriages that would fall within the ambit of the Bill. Provision is inter alia made for the regulation of proprietary consequences, changes to matrimonial property systems (with due regard to existing and vested rights) and the regulation of polygamous marriages. In terms of the draft Bill all existing Islamic marriages would be recognised as valid marriages, for all purposes, upon commencement of the proposed legislation. This would cover both monogamous and polygamous Islamic marriages which, if applicable, may exist alongside a civil marriage (ie a marriage registered under the Marriage Act).

It is further proposed that, because the judges of secular courts are by and large non-Muslims, a judge be assisted by two assessors who are experts in Islamic law in the adjudication of all disputes relating to Islamic law. The appointment of assessors means that the court presiding over a dispute involving Islamic law would have the necessary expertise to resolve such disputes effectively.

The Commission's proposed draft Bill in addition addresses the registration of Islamic marriages, the dissolution of such marriages through the pronouncement of a Talaq (which, in terms of the proposals, must be confirmed by a court), custody of and access to minor children and maintenance.


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Latest Article

The Reconstruction of the Constitution and the case for MPL in Canada

The present paper is intended for discussion. It delineates a way of looking at various facets of the current constitutional problems besetting Canada. It offers a critical analysis of a select number of themes which we believe have played a fundamental role in creating and shaping the crisis facing Canadians. As interested observers and participants in the social/political fabric of Canadian life, we, to borrow the vernacular of sports, have tried to call things as we see them. We realize some of these judgement calls may upset some segments of Canadian society. By Syed Mumtaz Ali

DEMOCRATIC CONSTITUTION MAKING:   THE SOUTH AFRICAN EXPERIENCE

By Shouket Allie

South Africa's constitutional process was one of its first truly national endeavours, encouraging participation from all sectors of the country's once-divided society. This article has been excerpted from Special Report: Democratic Constitution Making, and numerous other academic articles by authors who were actively involved in the process.

DEVELOPING NATIONS

 Africa and elsewhere are experimenting with new structures and forms of participation in an attempt to develop an open process that places initiative in the hands of citizens and creates a constitutional conversation. In many cases, rather than working within the framework of an existing body of procedures and precedents, these nations are starting with a clean slate.

The South African Constitution of 1996, for example, is widely regarded as a model constitutional text. Likewise, the process by which it was made has been hailed as a key part of the successful transition from the oppression of apartheid to a democratic society.  

The conversion process hitherto described is firstly a movement from a minimalist to a maximalist position and approach. The second is a progression and conversion from modern constitutionalism to what may be coinned as neo-constitutionalism.

The transition, perils, and challenges as well as the, opportunities of neo constitutionalism of the the South African process and age required constitutional makers a freshness of thinking and a willingness to consider not only the economics and politics of globalisation but also the values and ethics "that shape our perception and conception of the global world

All of these developments, manifesting themselves in the space of a relatively short period, constitute a significant, interesting and reach tapestry of legal history.