PER: 1999 Volume 2 No 2http://hdl.handle.net/10394/19902024-03-28T22:19:37Z2024-03-28T22:19:37ZMuslim personal law and the meaning of "law" in the South African and Indian constitutionsRautenbach, Christahttp://hdl.handle.net/10394/19932019-06-24T09:25:37Z1999-01-01T00:00:00ZMuslim personal law and the meaning of "law" in the South African and Indian constitutions
Rautenbach, Christa
The Muslim population of South Africa follows a practice which may be referred to as Muslim personal law. Although section 15 of the Constitution of the Republic of South Africa 108 of 1996 recognises religious freedom and makes provision for the future recognition of other personal law systems, Muslim personal law is, at this stage, not formally recognised in terms of South African law. Since Muslim personal law receives no constitutional recognition the question may be asked whether the 1996 Constitution, and in particular the Bill of Rights as contained in chapter 2 of the 1996 Constitution, is applicable to "non-recognised" Muslim personal law. The answer to this question depends to a large extent on the meaning of "law" as contained in the 1996 Constitution.
When the viewpoint of academic writers and the courts are evaluated it seems as if the meaning of law in South Africa is restricted to the common law, customary law and legislation. If such a viewpoint is to be followed, Muslim personal law is excluded from the scrutiny of the Bill of Rights. It is, however, inconceivable that there might be certain areas of "law" that are not subject to the scrutiny of the Bill of Rights. In this note it will be argued that Muslim personal law should be regarded as law in terms of the 1996 Constitution, or in the alternative, that Muslim personal law (or at least Muslim marriages) should be recognised in terms of section 15 of the 1996 Constitution.
Due to the historical resemblance between South Africa and India the meaning of "law" as contained in the 1996 Constitution will be compared with the meaning of "law" as contained in the Constitution of India. Although the Constitution of India indirectly gives recognition to various personal laws in India, these personal laws are not subject to the provisions of the Constitution of India. Therefore, it would be argued that one should approach the Constitution of India with caution when its provisions are compared to those of the 1996 Constitution of South Africa.
1999-01-01T00:00:00ZDe Nederlanse casus: Een politiek gevecht om de grondwetsherzieningPelle, Jhttp://hdl.handle.net/10394/19922016-04-28T21:27:07Z1999-01-01T00:00:00ZDe Nederlanse casus: Een politiek gevecht om de grondwetsherziening
Pelle, J
The political struggle leading up to the Dutch Constitution of 19831 is an empirical theoretical relevant case. A particular theoretical point of view (called the theoretical perspective of scientific legal intervention) appears to be important with respect to knowledge about contitution building. A preponderating identical habitus of constitutional law intervention was characteristic for all political actors involved on the Dutch national level. In revising the Dutch Constitution of 1983 these actors have been influenced by the international context. However, 'the' international context does not exist. Instead there have been four international politically relevant contexts in the case of the Netherlands between 1945 and 1983. These contexts provoked national political issues and could have a strong political impact.
1 Hfdst 1 Nederlandse Grondwet van 1983 (Grondrechten).
1999-01-01T00:00:00ZDie reg van die homoseksuele ouer om beheer en toesig oor 'n kind te verkry in die lig van die bepalings van die GrondwetKotze, Ahttp://hdl.handle.net/10394/19912019-06-24T09:20:17Z1999-01-01T00:00:00ZDie reg van die homoseksuele ouer om beheer en toesig oor 'n kind te verkry in die lig van die bepalings van die Grondwet
Kotze, A
The problematic nature of the right of a homosexual parent to vest custody over a child is biarticulated: the nature and extent of custody disputes as well as the issues of discrimination based on sexual orientation are relevant. Homosexual orientation is emotional and controversial, all the more when it is accompanied by custody disputes. In this context the constitutional protection given to human rights and the constitutional provisions containing constitutional values are of paramount importance. The contents of these provisions have direct consequences for custody disputes and homosexual parenthood. In the pre-constitutional dispensation, the court gave judgement in Van Rooyen v Van Rooyen 1994 2 SA 325 (W) on the awarding of access rights to a homosexual parent. With regard to the provisions of the Constitution of the Republic of South Africa 108 of 1996 and trends in relevant foreign law, the decision in the Van Rooyen case is subjected to criticism. Since the commencement of the Constitution of the Republic of South Africa 200 of 1993, no South African court has given judgement on this issue. The aim of this contribution is to set out an autochthonous frame of reference considering the provisions of the Constitution, case law and comparative foreign law in an attempt to resolve the issue under discussion.
1999-01-01T00:00:00Z