1 00:00:01,360 --> 00:00:03,120 Speaker 1: Views and News with. 2 00:00:03,279 --> 00:00:06,440 Speaker 2: Sarah Jane Maguela King in for Clarence Ford. 3 00:00:06,720 --> 00:00:10,200 Speaker 1: We all have a voice, use yours call two. 4 00:00:10,160 --> 00:00:12,840 Speaker 2: One, four four, six oh five six seven. 5 00:00:13,039 --> 00:00:14,080 Speaker 1: Join the conversation. 6 00:00:14,440 --> 00:00:15,520 Speaker 3: I'm key talk. 7 00:00:16,239 --> 00:00:19,840 Speaker 2: A new High Court judgment is being described as a 8 00:00:19,880 --> 00:00:23,439 Speaker 2: turning point for Muslim woman navigating divorce in South Africa. 9 00:00:23,520 --> 00:00:26,840 Speaker 2: It clarifies quite decisively that religious divorce or talak does 10 00:00:26,880 --> 00:00:30,240 Speaker 2: not override a woman's right to a woman's rights to 11 00:00:30,360 --> 00:00:34,120 Speaker 2: civil protection under South African law. And to help us 12 00:00:34,520 --> 00:00:37,120 Speaker 2: unpack what this means in practice, I'm joined on the 13 00:00:37,159 --> 00:00:40,880 Speaker 2: line by Carmela Pulsa from The Daily Maverick. Carl Carmla, 14 00:00:40,960 --> 00:00:43,320 Speaker 2: good to have you with us this morning. Give us 15 00:00:43,360 --> 00:00:46,680 Speaker 2: the background, please help us understand the context. 16 00:00:47,440 --> 00:00:52,960 Speaker 1: Good morning, SJ and good morning to your listeners. I'mbsolutely 17 00:00:53,040 --> 00:00:57,560 Speaker 1: having a fangle moment because I've I've enjoyed listening to 18 00:00:57,640 --> 00:01:05,440 Speaker 1: you over the years very much so. Some history and 19 00:01:05,480 --> 00:01:12,080 Speaker 1: a little context before twenty eight. During twenty twenty two, 20 00:01:12,360 --> 00:01:16,800 Speaker 1: with men women in Muslim marriages legally helped the option 21 00:01:16,959 --> 00:01:20,960 Speaker 1: to register marriages, but chose not to. But that did 22 00:01:21,000 --> 00:01:24,520 Speaker 1: not mean that they did not deserve any less protection 23 00:01:25,000 --> 00:01:30,800 Speaker 1: than those women whose marriages are registered. Women often found 24 00:01:30,840 --> 00:01:35,960 Speaker 1: themselves in these situations because of limited agency to make 25 00:01:36,000 --> 00:01:40,000 Speaker 1: important decisions, and often women were forced by their husbands 26 00:01:40,000 --> 00:01:44,520 Speaker 1: and very often society norms, to abide by whatever decision 27 00:01:44,840 --> 00:01:48,360 Speaker 1: the husband made. This often led to disparity in the 28 00:01:48,440 --> 00:01:53,600 Speaker 1: bargaining powers in a marriage. The additional consequence of this 29 00:01:53,760 --> 00:01:57,800 Speaker 1: inequality is that assets were often acquired during the marriage 30 00:01:57,960 --> 00:02:02,360 Speaker 1: were always done or very often than in the husband's name. 31 00:02:02,920 --> 00:02:06,560 Speaker 1: So when I had a Muslim husband obtained a taluk, 32 00:02:06,800 --> 00:02:11,920 Speaker 1: which is a unilateral divorce, it resulted in women without 33 00:02:12,440 --> 00:02:18,040 Speaker 1: adequate safeguards regarding maintenance and marital property. So this changed 34 00:02:18,720 --> 00:02:22,080 Speaker 1: with the constitutional decision on the twenty eighth of June 35 00:02:22,080 --> 00:02:29,200 Speaker 1: twenty twenty two. The concord said that the Muslim sorry 36 00:02:29,200 --> 00:02:32,440 Speaker 1: that the Marriage Act and the Divorce Act was unconstitutional 37 00:02:33,520 --> 00:02:36,720 Speaker 1: and it recognized Muslim marriages, so this was a good thing. 38 00:02:37,720 --> 00:02:42,040 Speaker 1: Then in twenty twenty four, in May of twenty twenty four, 39 00:02:42,400 --> 00:02:46,720 Speaker 1: the Divorced Amendment that came into effect, and this changed 40 00:02:46,760 --> 00:02:50,359 Speaker 1: the definition of a spouse to ensure that women married 41 00:02:50,440 --> 00:02:55,120 Speaker 1: under Islamic law could could have the same access to 42 00:02:55,240 --> 00:02:59,840 Speaker 1: the same court ordered protection at divorce. So these were 43 00:02:59,840 --> 00:03:07,720 Speaker 1: all wonderful things. But then court cases evolved, and what 44 00:03:08,040 --> 00:03:14,440 Speaker 1: of the new court was the following Certain misfore men 45 00:03:17,480 --> 00:03:25,000 Speaker 1: opposed applications brought by their wives and said that because 46 00:03:25,200 --> 00:03:30,359 Speaker 1: a tulluk the unilateral divorce was pronounced, there was no 47 00:03:30,680 --> 00:03:35,960 Speaker 1: marriage and there was no and as a result, his 48 00:03:36,120 --> 00:03:41,720 Speaker 1: wife was no longer a spouse and could not receive 49 00:03:42,400 --> 00:03:48,440 Speaker 1: the interim protection. So the first couple of cases, the 50 00:03:48,560 --> 00:03:51,240 Speaker 1: court did not deal with the argument he had on. 51 00:03:52,600 --> 00:03:55,880 Speaker 1: What the courts did was they listened to their husband's objections, 52 00:03:55,880 --> 00:04:00,400 Speaker 1: they considered it. They did not refuse the request, but 53 00:04:00,600 --> 00:04:05,040 Speaker 1: deferred the question to the divorce court. So this still 54 00:04:05,200 --> 00:04:10,160 Speaker 1: left women in a very difficult division because you've now 55 00:04:10,520 --> 00:04:15,080 Speaker 1: issued divorced summons and you now have to wait for 56 00:04:15,200 --> 00:04:18,040 Speaker 1: however long it takes you to get to that divorce 57 00:04:18,160 --> 00:04:22,919 Speaker 1: court for the court to make a decision. This changed 58 00:04:23,040 --> 00:04:26,640 Speaker 1: in the recent case of es versus h said A, 59 00:04:27,120 --> 00:04:31,039 Speaker 1: because in this case the judge refused to grant the 60 00:04:31,080 --> 00:04:35,840 Speaker 1: wife's entrant relief. So this would differ from the earlier 61 00:04:35,920 --> 00:04:41,000 Speaker 1: cases where they deferred the decision right right, So what 62 00:04:41,120 --> 00:04:45,039 Speaker 1: then happened was it went on appeal before three judges 63 00:04:45,080 --> 00:04:49,440 Speaker 1: in the In the in the Hunting High Court, the 64 00:04:49,560 --> 00:04:57,560 Speaker 1: three judges delivered a unanimous appeal and dealt squarely with 65 00:04:57,680 --> 00:05:06,280 Speaker 1: the broader objections that would afferred in earlier cases. So typically, 66 00:05:07,560 --> 00:05:11,800 Speaker 1: our husband objecting to the jurisdiction of these amended civil. 67 00:05:11,560 --> 00:05:14,480 Speaker 3: Divorce laws would argue that he'd already issued at galak, 68 00:05:15,520 --> 00:05:18,760 Speaker 3: that is the traditional marriage, the traditional word spoken to 69 00:05:18,960 --> 00:05:22,160 Speaker 3: endamously marriage, and no marriage. 70 00:05:21,800 --> 00:05:25,880 Speaker 1: Exists, and therefore the civil courts can have no role 71 00:05:26,400 --> 00:05:31,400 Speaker 1: in terminating a marriage that is already non existent. So 72 00:05:31,880 --> 00:05:40,039 Speaker 1: if this case, if this argument were successful, it wouldn't 73 00:05:40,160 --> 00:05:44,760 Speaker 1: mean that their husbands found their way around the newly 74 00:05:44,800 --> 00:05:50,240 Speaker 1: amended divorced civil laws. So and it would also mean 75 00:05:51,400 --> 00:05:57,360 Speaker 1: that the intention of the constitutional court would be undone 76 00:05:58,080 --> 00:06:01,640 Speaker 1: and the women in these marriages were excluded from the 77 00:06:01,800 --> 00:06:04,200 Speaker 1: very help that the highest court said they should be 78 00:06:04,240 --> 00:06:11,640 Speaker 1: able to access. So the argument part of the husband 79 00:06:12,040 --> 00:06:17,000 Speaker 1: is that if he'd issued at talak and the three 80 00:06:17,040 --> 00:06:20,599 Speaker 1: months waiting period which is the period of it expired 81 00:06:21,279 --> 00:06:25,440 Speaker 1: the couple of divorced, the courts cannot intervene in a 82 00:06:25,440 --> 00:06:31,360 Speaker 1: already finalized divorced. The three judges stepped in and dealt 83 00:06:31,360 --> 00:06:35,680 Speaker 1: with the matter head on. What the court said was 84 00:06:36,760 --> 00:06:40,679 Speaker 1: the protection of a civil court applied regardless of weather 85 00:06:40,800 --> 00:06:45,360 Speaker 1: a wife began divorce proceedings in the civil court before 86 00:06:45,480 --> 00:06:49,039 Speaker 1: talak and the and a divorce under Islamic law, or 87 00:06:49,040 --> 00:06:54,479 Speaker 1: whether he pronounced the talakh first, it's irrelevant, She's still 88 00:06:54,880 --> 00:07:01,040 Speaker 1: the law was there to allow Musli winifit women sorrys 89 00:07:01,080 --> 00:07:04,760 Speaker 1: of the divorce of the Divorce Act, despite of any 90 00:07:05,000 --> 00:07:07,240 Speaker 1: face of a talah, not in the absence of a 91 00:07:07,320 --> 00:07:08,679 Speaker 1: dalak coming. 92 00:07:09,160 --> 00:07:13,320 Speaker 2: For what does this mean very practically for Muslim women 93 00:07:13,440 --> 00:07:16,360 Speaker 2: going through divorce now then well, the. 94 00:07:16,440 --> 00:07:21,160 Speaker 1: Three takeaways while are following mustly women whose husbands have 95 00:07:21,360 --> 00:07:25,760 Speaker 1: pronounced at tallah can still institute can can institute divorce 96 00:07:25,880 --> 00:07:30,360 Speaker 1: proceedings and claim rule forty three relief. Rule forty three 97 00:07:30,400 --> 00:07:36,760 Speaker 1: relief is interim relief. Very often when parties marriage died 98 00:07:37,360 --> 00:07:43,400 Speaker 1: breaks down, divorce proceedings are institutions instituted. Sorry, the taps 99 00:07:43,440 --> 00:07:49,680 Speaker 1: are oftenly turned off and women often find women, whether 100 00:07:49,920 --> 00:07:56,560 Speaker 1: in all different marriages, find themselves in a difficult position. 101 00:07:57,160 --> 00:08:00,320 Speaker 1: They can then approach a court and ask for intra 102 00:08:00,480 --> 00:08:07,200 Speaker 1: maintenance so that they still still receive the same financial 103 00:08:07,240 --> 00:08:11,880 Speaker 1: protection that they received during the marriage until the divorce 104 00:08:11,960 --> 00:08:18,160 Speaker 1: is finalized. So Muslim women whose husbands are pronounced the 105 00:08:18,240 --> 00:08:23,360 Speaker 1: color can still institute divorce proceedings and claim this form 106 00:08:23,440 --> 00:08:29,360 Speaker 1: of intra maintenance. Second takeaway, no agreement or delay will 107 00:08:29,520 --> 00:08:35,400 Speaker 1: forfeit these statutory rights support afforded to women. If the 108 00:08:35,520 --> 00:08:40,640 Speaker 1: court are obliged to entertain these applications for intra maintenance 109 00:08:41,080 --> 00:08:47,160 Speaker 1: and the jurisdictional refusal is appealable, that means that the 110 00:08:47,280 --> 00:08:53,240 Speaker 1: concourd Decision of twenty twenty two and the Divorce Amendment 111 00:08:53,400 --> 00:08:58,320 Speaker 1: Act applies to all marriages subsystem as a fifteen December 112 00:08:58,360 --> 00:08:59,040 Speaker 1: twenty fourteen. 113 00:09:00,120 --> 00:09:02,760 Speaker 2: Is there is there any realistic chance that this might 114 00:09:02,760 --> 00:09:05,079 Speaker 2: be overturned on appeal this judgment. 115 00:09:06,440 --> 00:09:12,679 Speaker 1: I think that people with enough funds will try, but 116 00:09:13,000 --> 00:09:16,240 Speaker 1: they will it will be very hard for them to 117 00:09:16,280 --> 00:09:21,079 Speaker 1: get around the law, especially using the same Tunack argument, 118 00:09:21,160 --> 00:09:26,839 Speaker 1: which has now heard that there's no constitutional master. I 119 00:09:28,000 --> 00:09:30,440 Speaker 1: don't think that it will stop people, but I think 120 00:09:30,440 --> 00:09:33,160 Speaker 1: it will do very hard for them to get around 121 00:09:33,360 --> 00:09:34,400 Speaker 1: this appeal decision. 122 00:09:34,600 --> 00:09:38,720 Speaker 2: And in terms of the broader message that this ruling 123 00:09:38,920 --> 00:09:42,520 Speaker 2: sends about the relationship between well, I was going to 124 00:09:42,559 --> 00:09:47,359 Speaker 2: say Muslim but religious law and civil law in sooth Africa. 125 00:09:48,200 --> 00:09:54,360 Speaker 1: I think the broader question is that women require these 126 00:09:54,400 --> 00:09:59,480 Speaker 1: protections and the courts are not going to entertain loopholes 127 00:09:59,800 --> 00:10:06,280 Speaker 1: to continuous situation that existed prior to the Constitutional Court decision. 128 00:10:07,400 --> 00:10:11,520 Speaker 2: M hm, Carmla, fascinating stuff. Appreciate you joining us. I'm 129 00:10:11,559 --> 00:10:13,360 Speaker 2: so sorry I introduced you as being from the Daily 130 00:10:13,400 --> 00:10:15,480 Speaker 2: Maverick when I introduced you early, which is of course 131 00:10:15,600 --> 00:10:18,200 Speaker 2: not the case. Your article is in the Daily Maverick. 132 00:10:18,240 --> 00:10:21,959 Speaker 2: You you are an attorney with with Herold sorry and 133 00:10:22,360 --> 00:10:27,200 Speaker 2: with Harold Harold Gurney with Harold g chief executive officer 134 00:10:27,720 --> 00:10:31,680 Speaker 2: of that legal firm as well. Carmla, what a pleasure 135 00:10:31,679 --> 00:10:33,520 Speaker 2: to have you this morning. Appreciate your time this morning, 136 00:10:33,559 --> 00:10:36,520 Speaker 2: Attorney Carmla Pulsa joining us this morning. And you can 137 00:10:36,559 --> 00:10:40,920 Speaker 2: find that article written in the Daily Maverick by Carmla 138 00:10:41,440 --> 00:10:43,120 Speaker 2: on Dailymaverick dot Cosey