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Islamic marriages to be recognised under Constitution
by Richard Mantu
BuaNews (22.07.2003)/ HRWF Int. (06.08.2003) - Website http://www.hrwf.net - Email info@hrwf.net - Muslim women will soon enjoy the same rights in their marriages as those enjoyed by women in other religions.
This was recommended by the South African Law Reform Commission, which has approved a report containing recommendations and a proposed draft Bill recognising Islamic marriages and Related Matters be part of South African law.
According to the draft bill, Muslim women will have the right to divorce, have custody of children and claim for maintenance with better protection in those marriages in accordance with Islamic values and Constitutional tenets.
The report is one of the three that were handed to the Minister of Justice and Constitutional Development Penuell Maduna in Pretoria today.
The other bill to be amended into the Criminal Procedure Act provides for the use of modern audiovisual equipment and the establishment of 'videoconference courts' for the postponement of cases against accused persons who are awaiting trial.
The Law Reform Commission also recommended that a proposed draft Bill be approved for the Apportionment of Damages Act, where in case of accidents both the plaintiff and a defendant will be afforded fair and just payments based on whose was more at fault.
Judge Mohomed Navsa of the Supreme Court of Appeal said the draft Bill into Islamic marriages would create certainty with regard to Muslim marriages, where previously such marriages were not recognised under apartheid and post 1994.
'Islamic marriages were not recognised. With the advent of the new constitution all forms of culture and religion are given recognition and it is an obligation on the state to recognise such believes and value system provided they don't clash with the Constitution.
'In fact what we have in this is a comprehensive system in terms of which recognition is given to Islamic marriages to Islamic values to dealing with issues such as divorce, custody, maintenance and competing interest between different wives,' said Judge Navsa.
Minister Maduna hailed the Law Commission for its extensive research on the reports especially on Islamic marriages since 'it has been such a problematic and sensitive area for government'.
'I'm happy that at long last we are almost at a point where we shall give full legal recognition of marriages conducted and concluded under Islamic law and tradition,' said Mr Maduna.
'I'm very thrilled that this report has also been concluded where for instances prisoners awaiting trial will no longer have to be transported long distance to and from court just for formal remands or bail applications. These are now dealt with and disposed off electronically. This will help us tremendously,' said minister Maduna.
Claire Hartley Senior State Law Adviser at the Law Commission said the new draft bill on the Apportion of Damages Act advocated for a broader basis for apportionment of loss than fault as the old law determined fault as its only method to determine appropriate proportions.
She said the fact that fault was the sole criterion of apportionment under the Act had had an inhibiting effect on the application of the legislation.
'The draft bill requires the court to attribute the responsibility for the loss suffered in proportions that are just and equitable, taking into account all relevant factors and gives the court a wide discretion with regard to the method of determining appropriate proportion,' said Ms Hartley.
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Cult leader still missing
SAPA (27.06.2003)/ HRWF Int. (02.06.2003) - Website http://www.hrwf.net - Email info@hrwf.net - Police are still looking for a woman believed to be the head of an alleged cult responsible for the death of eight people.
The deceased were discovered after shallow graves were exhumed in a church compound this week.
Three people appeared in the Umtata District Court on Friday in connection with the case.
Three senior members of the church, Thompson Lingani, 77, Sabelo Simayile, 50, and Herbert Lingani, 45, were joined in court by 12 other members who were granted R300 bail each on Monday.
The senior members were granted bail of R500 each after magistrate Molden Hower said the state had a prima facie evidence against them because the eight bodies buried in the graves were found in their properties.
A large, placard-carrying crowd converged on the court uttering death threats against the members of the church - dubbed a cult - in the Mandela Park informal settlement in Umtata where the graves were found, according to a Sapa correspondent.
The protesters demanded that the 15 suspects be remanded in custody. Public order policing members were summoned to the court.
Leaving the court, the accused retreated when they saw the crowd and waited in a court waiting room until the group dwindled. No incidents were reported.
The investigating officer, Detective Inspector Bongani Ntanjana, told the court the post-mortems had been completed but he was not in a position to say how the deceased died.
The case was postponed to September 1, and the accused were ordered not to go near the compound until the case had been finalised.
The court also ordered the accused to seek accommodation with relatives and not to return to the Mandela Park formal settlement.
On Thursday, a grader was used to remove topsoil at the compound to ascertain whether were there any other bodies.
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Residents raid cult buildings
The Daily Dispatch (27.06.2003)/ HRWF Int. (02.06.2003) - Website http://www.hrwf.net - Email info@hrwf.net -- Local police were shouldered aside as chanting Mandela Park residents broke locks and entered the controversial Ibandla lika Krestu church with a crowbar yesterday.
As anti-crime committee members entered, onlookers shouted vula vula, vula (open up!).
Inside the two residential houses used as church buildings, posters were found -- one depicting four human figures, another showing one figure, a third a "soul" and a fourth, with a black background, showed a bird in the heart of a person.
In the church hall more posters were found.
These said: Jesus Arrives, The Ark Is Leaving for Heaven, Preparations for Rapture, Revelations from God, and many more.
In cult leader Nokulunga Fiphaza's room were chairs, a small table, a sponge mattress and a Bible.
More sponge slabs, blankets, Bibles, hangers and clothes were found in the congregation's sleeping quarters.
Police refused residents' demands to demolish the houses and check the foundations for more bodies. Other residents suggested the houses be burnt.
"We do not want these cult members back here. This has tarnished the area," said community leader Chief Jongisizwe Ndzambule.
A mechanical digger, guided by police, had earlier dug up the ground at the cult headquarters in search of more bodies.
This follows the exhumation of eight bodies at the church compound on Tuesday.
Postmortems were conducted on Wednesday, the results of which will be forwarded to the magistrate's court and the investigating officer.
Fifteen cult members arrested on Sunday for concealing the deaths will appear in the magistrate's court here today.
Three of the detainees -- Pastor Thompson Lingani, 77, Sabelo Simayile, 55, and Herbert Lingani, 50 -- have indicated their intention to apply for bail.
The other 12 were granted R300 bail on Monday.
Cult leader Nokulunga Fiphaza is still missing, along with most of the congregation.
The cult has been chased away from King William's Town, East London, Port Elizabeth, Grahamstown, Matatiele, Tsolo and Paynes Farm in Umtata.
Commenting about the evictions earlier, Fiphaza said: "This is the pain we have to endure as the children of God."
Fiphaza, who denied she was the cult's leader, said they were waiting for the return of Jesus Christ.
According to Chief Ndzambule, the cult came to Mandela Park in 1997 and were initially community ignored the group. "But we discovered their strange beliefs a few years later. They did not allow their members to work, to mingle with other locals -- even their own relatives -- or attend family funerals.
"Children were not allowed to go to school or clinics and were without birth certificates," said Ndzambule.
The police raid last week followed allegations by the mother of a cult member that her daughter had died and been buried by the cult.
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Schools want right to religion
South African Press Association (29.04.2003)/ HRWF Int. (05.05.2003) - Website http://www.hrwf.net - Email info@hrwf.net - There is a strong feeling among Cape Town school principals that school governing bodies should be free to deal with the issue of religion at their schools, Western Cape Premier Marthinus van Schalkwyk said on Tuesday.
Speaking after meeting 22 principals at the provincial legislature, he said there was a unanimous viewpoint of principals that "we shouldn't try to fix what is not broken ... but trust governing bodies at the schools to deal with this".
The meeting focused on two issues relating to religion at schools, namely religious education and religious observance, particularly in view of the national education department's decision to review them, he said.
Earlier this month, Education Minister Kader Asmal said his department's draft policy on religion in education was expected to be finalised at the next council of education ministers (CEM) meeting in June.
A special committee was set up last year to advise Asmal on religion in education.
Part of its brief is to give him input on the conduct of school assemblies, and monitor the quality of religious education in schools.
The committee is chaired by an administrator in the Uniting Reformed Church, Dr Dan Maluleke.
Van Schalkwyk said the provincial government would strongly oppose any attempt to dilute the constitutional right to religious instruction at schools.
Western Cape provincial education MEC Andre Gaum said the matter of religion at schools had not been finalised yet because of pressures and concerns raised about its implementation.
Gaum said the whole matter was approached in the wrong manner and the national education department should not prescribe the rules in detail.
He said the South African Schools Act clearly stated that school governing bodies should deal with religion at schools.
Panaroma Primary School principal Carl Zimmermann said principals were not there to "fight for Christianity" but rather wanted to ensure all religions were represented at schools.
He said, and this viewpoint was echoed by other principals present, that in a bid to accommodate all religions for example, an imam or pastor could be called in to give specific religious instruction to those in the religious minority.
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Children have the right to choose their own faith
The Johannesburg Sunday Times (23.02.2003)/HRWF Int. (27.02.2003) - Website: www.hrwf.net - Email: info@hrwf.net - WHAT started as a routine divorce action has ended with a High Court judge making legal history by refusing to play the role of nanny to the soul of the child whose parents were splitting up.
The divorce was not opposed and the couple reached an agreement about their separation that they wanted made an order of court.
It was a legal action typical of those seen thousands of times a year in the courts, usually of interest only to the couple involved and their families.
But then the judge noticed this paragraph, and the case suddenly acquired significance for everybody in South Africa: "Both parties undertake to educate the minor child in the Apostolic Church and undertake that he will fully participate in all the religious activities of the Apostolic Church."
Acting Judge Hans Fabricius refused to incorporate this paragraph into the court order, saying he would explain why later. Now he has handed down his reasons, and they are strongly based on the constitutional right to freedom of religion, belief and conscience.
In terms of the contested paragraph, both parents and the child, then not yet three years old, would have duties.
The parents would have to educate the child in the beliefs and practices of their denomination, and ensure that he participates in the religious life of the church. The child, for his part, would have an undertaking made on his behalf - that he will "fully participate" in the religious activities of the Apostolic Church.
Judge Fabricius, giving his reasons for refusing to include this paragraph as part of the divorce order even though both parents had agreed to it, stresses that he would have had the same problem with the agreement whatever religious denomination or creed was involved.
In other words, his criticisms of the proposed settlement have nothing to do with the fact that the parents and child are members of the Apostolic Church.
The judge says the Constitution guarantees freedom of thought and of religion, and that if he were to make the paragraph an order of court, he would effectively be sanctioning the removal of the child's rights to freedom of thought. He also points out that the High Court is the upper guardian of all children and must make decisions about them based on what is in their best interests. No agreement between the parties could encroach on this authority of the court.
He speculates that someone might perhaps be able to agree to waive his or her right to freedom of religion. But no one could do so on behalf of someone else. The question of religious freedom has not often been examined in the courts since the passing of the Constitution.
But before religious zealots start complaining to the Judicial Service Commission about Judge Fabricius, they should remember that he did not prevent the parents from bringing up the boy as a member of their church.
He simply refused to make this an order of court. The difference is significant. What if the child, at say 14, decided to convert to another denomination, even another faith? The order originally proposed by the parents would effectively have meant that the court became a bar to the child being able to exercise his freedom of conscience by changing his belief. For as the agreement stood, the court was a guarantor that the boy would "fully participate" in the religious activities of a particular denomination and by implication could not join in those of any other.
Someone who wants to change religions often faces enormous pressure from family and community, in addition to guilt and confusion. It would surely be unconstitutional to add court pressure into the equation.
By refusing to lend High Court weight to the couple's choice of religion for their son, the judge has given a salutary reminder: children too have the right to exercise freedom of religion even if they opt out of their family's creed. And it is this right that the Constitution protects, rather than the right of parents to force children into following the "faith of their fathers". |
