THE KUFR NIKAH BILL (KNB) ISSUE
THE TRUTH UNVEILED AND GANIEF’S FALSEHOOD ASSAILED
Once and for all, assailing, nailing and obliterating the falsehood which Ganief Hendricks had attributed to The Majlis, and which Advocate M.S.Khan had peddled in the hope of pummelling us into humiliation with what he imagined to be the coup de grace of his coup de main response to The Majlis, Advocate Feroz Boda issued the following statement which negates and rejects the 100% false charge levelled by Hendricks against The Majlis. Advocate Khan had said: “I made reference to the so-called ‘Majlis Bill’ because Mr.Hendricks said to me, that he has a 100 percent recollection of his discussions with you in relation thereto.”
Throwing light on the murky issue and 100% falsehood proffered by Hendricks to obfuscate the truth, Advocate Feroz Boda states:
PERSONAL STATEMENT REGARDING DRAFT RECOGNITION OF RELIGIOUS MARRIAGES BILL
RESPONSE TO CLAIMS MADE BY THE AL JAMA-AH PARTY REGARDING THE PUBLICATION OF A DRAFT BILL
- Background
- Recent events have compelled me to respond to the draft Recognition of Religious Marriages Bill proposed by the Al Jama-ah Party[1].
- There have been certain posts on social media claiming that I either expressly stated or implied that I was responsible for drafting the above bill ,or a previous version of it, and that I did so on the instruction of Maulana AS Desai.
- It has been publicly claimed that I received a sum of R30 000 for my services.
- I deal with these claims herein.
- Context
- Many years ago[2] I received an instruction from attorney Zahir Omar to prepare a draft Recognition of the Religious Marriages bill on behalf of his client.
- Mr. Omar has confirmed to me only recently that his client was the Society for the Protection of the Constitution.
- I proceeded to prepare a draft bill on his instruction for which I received no remuneration.
- I assumed at the time that his client would then consult with the relevant Islamic scholars, and that the draft would be moderated as I am not an Islamic scholar. It was not meant for public consumption. This was an assumption I made based on standard Islamic courtesy and trust regarding any statements or bills drafted in connection with the shari’ah.
- The only alternative available at that time was another draft bill styled the Muslim Marriages Bill, presented by the South African Law Reform Commission.
- The Muslim Lawyers Association (MLA), of which I was and remain a member had publicly campaigned against the bill proposed by the South African Law Reform Commission[3].
- When I prepared the draft bill for Mr Omar, I drafted it in a manner which I thought would best protect the integrity and independence of Islamic law (shari’ah).
- The draft I prepared included an arbitration option with a limited right of review by the South African courts, which would only be to assess whether the Islamic arbitration had been procedurally fair.
- This would mean that the secular court would not be entitled to enter into the merits of the decision of the Islamic arbitration in cases of divorce. This was consistent with the view taken at the time by the Muslim Lawyers Association[4].
- I also assumed that Islam recognises the validity of marriages conducted by persons of other religious affiliations.
- However, as indicated, I am not an Islamic scholar, and I left the finer points of these issues to the necessary expertise of trusted Islamic scholars.
- After preparing the draft bill, I did not hear anything further from Mr Omar’s offices, and I assumed that the effort had simply died a natural death.
- I did not in any way campaign for or “personally support” the draft I had written.
- I did not express any views about whether or not it was “shariah-compliant” as I am not qualified to do so and – to emphasise – I assumed the draft I wrote would still undergo moderation by Islamic scholars with regard to the issue of its shariah compliance.
- I assumed at the time that this would be done before submitting the bill or making it public.
- The Current Situation
- A draft bill has recently surfaced on the Al Jama-ah Party website in the context of current debates around the Recognition of Religious Marriages Bill. I read the publicly available draft bill for the first time on 4 January 2023.
- I was astounded that the draft bill available on this website is a twin of the draft that I prepared many years ago for the Society for the Protection of the Constitution, Mr Omar’s client at the time.
- Furthermore, I have come to learn through social media posts that certain individuals have used my name in connection with the draft without notifying me or establishing the extent of my authorship and control over it.
- They have also:
23.1. alleged that criticisms against the Registration of Muslim Marriages draft bill levelled by Maulana AS Desai were unwarranted and hypocritical since Ml. Desai had been the one who had instructed Mr. Omar to instruct me to prepare the bill aforementioned; and
23.2. claimed that Ml. Desai paid me R30 000 to prepare the draft.
- In effect, this is tantamomisusing my name to discredit Ml. Desai.
- Clarifications
- The above claims in point 23 are false:
27.1. I did not receive any payment for preparing the draft of the bill; and
27.2. The client who requested the draft be prepared was the Society for the Protection of the Constitution and not Ml. AS Desai.
- The draft bill in its form was drafted on the understanding that it would undergo moderation by Islamic scholarship prior to being submitted or made public.
- It is therefore in my view not ready for submission or public consumption in its current form.
- Final Statements on the Matter
- Neither I nor the organisations to which I belong support the bill that is being proposed by Al Jama-ah Party.
- This is because, on reflection and consultation – and years after I authored the original draft – the proposed bill on the Al Jama-ah Party website presents the following risks:
27.1. While it endeavours to promote arbitration to avoid the possibility that the South African courts could interfere with substantive Islamic law and thus dilute it with principles that oppose the shari’ah, I am not certain that this can be avoided;
27.2. The reason for this is that I am aware of the jurisprudence emanating from the Constitutional Court, and I am aware of the legal reach of the Constitution;
27.3. Hence, there is a real risk that even with an Islamic arbitration in the case of divorce, a decision by an Islamic adjudicator may be reviewed as being unconstitutional;
27.4. This would then open the door for a court of law to hold that the shari’ah be modified, as has happened with customary law.
- I cannot support any endeavour where there is even a remote risk that the shari’ah would be modified, ignored, or diluted.
- Secondly, the proposed bill has an opt out or opt in option. This would create two streams of regulation within the Muslim community, which I understand has no basis in Islamic law.
- I would also not endorse any bill without the support of the two organisations of which I am currently a member, namely AMPSA [5]and the MLA, as well as the Islamic scholars that these organisations rely upon for guidance in terms of living within the shari’ah.
- To my knowledge, neither of these organisations nor the scholars with whom they work, support the draft bill presented on the Al Jama-ah Party website.
- I therefore cannot support this draft bill or advocate for it.
- I trust that this clarifies my position.
Feroze Ahmed Boda
5 January 2023
(End of Advocate Boda’s 100% Clarification)
While every statement made by Advocate Feroz Boda is relevant to the current cocktail context of baatil created by the Al Jahannam party, the following are some salient facts which emphasizes the despicable falsehood attributed to The Majlis:
(1) “The above claims (made in clause No.23) are false.”
(2) “I did not receive any payment for preparing the draft of the bill” (which he had prepared for the body, The Society for the Protection of the Constitution, with which The Majlis has absolutely no relationship.)
(3) “The client who requested the draft be prepared was the Society for the Protection of the Constitution and not Ml. A.S.Desai” (as falsely alleged by Ganief Hendricks and so irresponsibly peddled by Advocate M.S.Khan).
(4) “Neither I nor the organisations to which I belong support the bill that is being proposed by Al Jama-ah Party.”
(5) “I therefore cannot support this draft bill or advocate for it.”
THE ONLY OPTION FOR MR.GANIEF HENDRICKS IS TO WITHDRAW AND SCRAP HIS KNB (KUFR NIKAH BILL)
[1] A copy of the proposed bill can be found in the website https://www.aljama.co.za/muslim-marriage-bill/the-recognition-of-religious-marriages-bill/
[2] I cannot recall the exact date, but it was to the best of my recollection during the Zuma presidency.
[3] The MLA paper stating their opposition to the Law Commission draft is available on request.
[4] See Lufano Mphaphuli & Associates (Pty) Ltd v Andrews & Another 2009 (6) BCLR 527 (CC)
[5] I prepared the draft bill before this organisation was formed.
14 Jamaadith Thaani 1444 – 7 January 2023