Arendse v Arendse and Others and Isaacs v Isaacs and Another

• Jurisdiction: South Africa
• Date: 24 May 2019
• Citation: (2015) 2(1) Journal of Comparative Law in Africa 118
• Pages: 118-126
• Published date: 24 May 2019
• Author: Waheeda Amien

ARENDSE v ARENDSE AND OTHERS AND

ISAACS v ISAACS AND ANOTHER

WAHEEDAAMIEN*

Associate Professor, Department of Public Law, University of Cape Town,

Attorney of the High Court of South Africa.

Abbreviations: PIE Prevention of Illegal Eviction from and Unlawful

Occupation of Land Act 19 of 1998

I Introduction

Over the past 20 years since the advent of democracy in South Africa and the

introduction of constitutional and human rights principles that, among

others, protect the individual and collective rights to religious freedom, the

judiciary has adopted an approach that is appreciative and celebratory of

religious diversity.

Respect for, and promotion of, religious diversity is also apparent in the

Constitution of South Africa 1996. In the individual right to freedom of

religion, which is contained in s 15(3)(a) of the South African Constitution,

the legislature is given the ability to enact legislation to recognise, among

other things, religious marriages. In accordance with s 15(3)(a), a Muslim

Marriages Bill was drafted in 2003 to recognise and regulate Muslim

marriages in South Africa. However, this Bill has not yet been enacted,

which means that Muslim marriages remain without legal recognition.

Muslim women have been mainly affected by the non-recognition of

Muslim marriages. In particular, they are unable to enforce all their

Islamically recognised rights that emanate from a Muslim marriage, and they

cannot challenge Islamic law rules, practices and customs that unfairly

discriminate against them.

1

The only arm of the state that has come to their

aid thus far is the judiciary.

Through numerous cases since 1994 the South African judiciary has,

wherever possible, provided relief to women who are negatively affected by

the non-recognition of Muslim marriages.

2

The most recent case that

demonstrates judicial activism in the context of Muslim marriages is Isaacs v

Isaacs and Another,

3

in which judgment was delivered by the Goodwood

Magistrate’s Court on 28 August 2014. However, the Isaacs case cannot be

* BA LLB (Cape Town) LLM (Western Cape) PhD (Ghent). Email: waheeda.

amien@uct.ac.za

1

Amien, Waheeda (2010) ‘ASouth African Case Study for the Recognition and

Regulation of Muslim Family Law in a Minority Muslim Secular Context’ 24(3)

International Journal of Law,Policy and the Family 361 396 at 363.

2

Ryland v Edros 1997 (2) SA 690 (C) (hereinafter ‘Ryland’); Amod v Multilateral

Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA

1319 (SCA); Daniels v Campbell NO and Others 2004 (5) SA 331 (CC); Khan v Khan

2005 (2) SA 272 (T); Cassim v Cassim and Others Case No 3954/06 (TPD); Mahomed v

Mahomed Case No 2154/08 (ECP). Also cited as AM v RAM;Hassam v Jacobs NO and

Others 2009 (5) SA 572 (CC); Hoosain v Dangor Case No 18141/09 (WCC).

3

Case No 2807/14 (hereinafter ‘Isaacs’).

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(2015) 2(1) Journal of Comparative Law in Africa 118

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