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Category Archive: Constitution

Supreme Court of Appeal officially recognises Muslim marriages

Reprinted from iol.com, by Norman Cloete – 2020-12-19

Muslim marriages officially recognised
Picture Noor Slamdien/African News Agency

In what has been hailed a landmark victory for the recognition of Muslim marriages, the Supreme Court of Appeal (SCA) ruled that the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979, are inconsistent with the Constitution.

The SCA has given the president and the Cabinet, together with Parliament to remedy the “defects” by either amending existing legislation, or passing new legislation within 24 months, in order to ensure the recognition of Muslim marriages as valid marriages.

It was declared that Section 6 of the Divorce Act is also inconsistent with with the same sub-sections of the Constitution and that it fails to provide for mechanisms to protect the rights of minor or dependent children of Muslim marriages.

The court found that under the old marriage and divorce acts, children of a Muslim marriage are particularly prejudiced at the time of dissolution of the Muslim marriage.

The SCA ruled, children from Muslim marriages should be afforded the same rights and protection as children from other marriages.

In its judgement, the highest court in the land said: “It is declared that section 7(3) of the Divorce Act is inconsistent with sub-sections 9, 10, and 34 of the Constitution insofar as it fails to provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just. It is declared that section 9(1) of the Divorce Act is inconsistent with sub-sections 9, 10 and 34 of the Constitution insofar as it fails to make provision for the forfeiture of the patrimonial benefits of a Muslim marriage at the time of its dissolution in the same or similar terms as it does in respect of other marriages”.

The common law definition of marriage was also declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages. When the new laws come into effect, it will declare that a union, validly concluded as a marriage in terms of sharia law can also be dissolved under that same law.

Under the new law, Muslim marriages shall be treated as if they are out of community of property, except where there are agreements to the contrary, and all the provisions of the Divorce Act will apply.

The law will also apply in the case of a husband who is a spouse in more than one Muslim marriage, depending on the agreement entered into between the spouses. The Department of Home Affairs and the Department of Justice & Constitutional Development will, when the new laws come into effect, publish a summary of the orders in newspapers and on radio stations to announce the changes.

There currently are no policies and procedures in place to determine disputes arising from the validity of Muslim marriages and the validity of divorces granted by any person or association according to the tenets of sharia law.

The appeal against the Marriage and Divorce Acts were brought by several respondents who have been advocating for the recognition of shariah marriages and include the Muslim Judicial Council, The Commission for Gender Equality, the United Ulama Council of South Africa and The Women’s Legal Centre Trust.

Some links added by SD Law

Cape Town Family Lawyers can help

SD Law is a Cape Town law firm of experienced divorce attorneys, with offices in Johannesburg and Durban. What does a family lawyer do? If you need advice about legislation on Sharia marriages or divorce, our divorce lawyers can help. Call family lawyer Simon on 086 099 5146 or email  sdippenaar@sdlaw.co.za and we will look at your case in detail and advise you on the best way forward.

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Nuisance law – when an odour mushrooms out of control

How the stench from a neighbouring mushroom farm became a court case

Case law is the bane of every law student’s existence. Unlike statutory law, which is straightforward legislation and generally unambiguous, case law involves the analysis of previous legal decisions to analyse a new case and resolve ambiguities. The study of case law is important because interpretation of the law is not always clear-cut. If it were, there would be no need for lawyers; we would need only law enforcement and a judicial system.

Nuisance law Cape Town Lawyers

Case law can be tedious, hence it is a necessary but not always enjoyable part of a lawyer’s education. But occasionally it can be fascinating and serve to illuminate the role of the law in protecting very basic human rights, including the right to well-being. The case of the trustees of the Modderdrift Trust vs. Hylton Grange (Pty) Ltd, Christoffel Slabbert Van Wyk, Modderdrift Boerdery (Pty) Ltd and Pieter Jacques Beukes, involving nuisance and the law, is one such case, particularly relevant as it is Human Rights Month.

What constitutes nuisance?

The case that came before the Western Cape High Court in January this year was in fact the appeal that followed a judgement handed down in 2016, in which the original respondents were ordered to take remedial steps to limit the impact of noxious agricultural odours from their mushroom farming enterprise on nearby neighbours. Despite these actions, the odours persisted and the applicants sought an interdict against the Trust. The smell, though not continuous, was sufficiently offensive when it was present to make life unbearable for neighbours and to drive them indoors, where even shutting windows did not completely obliterate the stench. The case rests on what constitutes nuisance in law.

In bringing the appeal, the Trust argued that the making of compost (called “substrate”) in which to grow the mushrooms was in keeping with the zoning of the farm and the farm could potentially shut down, with the attendant loss of employment for farm workers, if they had to cease making the substrate.

Nuisance law – what did the judges consider?

In reaching their conclusion, the three judges cited numerous cases of nuisance law to establish legal principles, although none specifically dealt with mushroom farming. There are too many to mention in this summary, but you can read the case report here.

They then turned to statutory law. Section 24(a) of the Constitution gives everyone the right ‘to an environment that is not harmful to their health or well-being’. The judges agreed that an  environment that is repulsive to the senses of an ‘ordinary person’ is harmful to their well-being.

They then quoted Section 28(1) of the National Environmental Management Act 107 of 1998, which states that anyone causing ‘significant pollution or degradation of the environment’ must take reasonable measures to prevent such pollution or degradation. If it cannot be avoided, it must be ‘minimise[d] and remed[ied]’. ‘Pollution’ is defined as a change in the environment having ‘an adverse effect on human health or well-being’, caused by substances and by odours from an activity. 

Lastly, Section 35(2) of the National Environmental Management: Air Quality Act 39 of 2004 requires an occupier of any premises to ‘take all reasonable steps to prevent the emission of any offensive odour caused by any activity’ on their premises. ‘Offensive odour’ is defined as ‘any smell which is considered to be malodorous or a nuisance to a reasonable person’.

A sweet-smelling end to a foul story

The presiding judge concluded that ‘it is objectively reasonable to impose liability in this case, and that [the Trust’s] conduct is thus wrongful’. The other two judges concurred. So, although the mushroom farm was not deliberately committing an offence, and was simply carrying out processes involved in its core activity, it was liable for the emission of an intolerable stink that made life unbearable for the neighbours and farm workers on those neighbouring farms. The court ruled that such activities should either be carried out in a more remote location, in an enclosed space, or the substrate must be purchased rather than manufactured on the farm.

If your basic rights are infringed…

If you are subject to unpleasant smells or unsightly views from your property, you may not have to suffer in silence. As the neighbours in this case found, they had a legitimate grievance that was upheld by the court. 

SD Law is a firm of Cape Town attorneys, also in Johannesburg and Durban, who are passionate about the law and about upholding the Constitution and defending human rights. If you think your rights are being infringed, give Simon a call on 086 099 5146 or email simon@sdlaw.co.za for a confidential discussion about your case. 

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