Towards Recognition of Diversity: Muslim Marriages in South Africa

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South Africa has a heterogeneous society which is governed by a western orientated legal system. Various cultural and religious groups live in accordance with normative rules and customs that are in conflict with the current legal system. The South African Bill of Rights promotes the values of dignity, equality and freedom in a multi-cultural society. The Recognition of Customary Marriages Act was promulgated to recognise diversity by affording recognition to indigenous marriages. A draft bill was compiled to recognise Islamic marriage. Strong opposition was received from predominantly male groups and was also condemned by feminist and human rights groups. On the one hand it was argued that Shari’a is divine law and cannot be altered by temporal law and on the other hand it was argued that Shari’a law is in direct conflict with the Bill of Rights. Both the customary (indigenous) law and Shari’a is predominantly paternalistic in nature. Customary (indigenous) law is recognised in South Africa although the same arguments that are now advanced against the recognition of Muslim marriage law was advanced against the recognition of indigenous law. The lecture will investigate how Muslim marriages can be recognised within a Constitutional dispensation.


Keywords: Muslim Marriage, Legal Pluralism, Cultural Rights, Religious Rights
Stream: Nations, Nationalism, Communities
Presentation Type: 30 minute Paper Presentation in English
Paper: Towards Recognition of Diversity


Prof. Pieter Bakker

Senior Lecturer, School of Law
Department of Private Law, University of South Africa

Pretoria, Gauteng, South Africa

I am a senior lecturer in family law in the Department of Private Law at the University of South Africa. My research interests lies in legal pluralism with specific focus on the recognition of family law systems within multi-cultural societies. I specialise in Indigenous and Muslim (Islamic) family law. Completed my doctoral degree in 2004 at the University of Pretoria on Marriage Pluralism in South Africa. My publications include the following: “The new un-official customary marriage: Application of section 7(6) of the Recognition of Customary Marriages Act 120 of 1998” 2007 THRHR 481-489; “Feasibility of bigamy as a crime in a cultural heterogeneous society” 2006 THRHR 64-78 (original in Afrikaans); “The future: Unification or pluralism in the South African law of marriage” 2004 THRHR 626-640 (original in Afrikaans); “Validity of section 31 of the Black Laws Amendment Act 76 of 1963 in the light of the Recognition of Customary Marriages Act 120 of 1998” 2004 THRHR 671-673 (original in Afrikaans).

Ref: D08P0105