South Africa Report to Musawah 24 November 2008 Part A: Introduction South Africa is a secular society governed by a Constitution with a strong Bill of Rights. The latter entrenches among others, gender equality and freedom of religion. While freedom of religion is accommodated broadly within the South African legal context, there are strong arguments to suggest that it could be subordinated to women’s right to equality. Muslims in South Africa constitute the largest religious minority within its multicultural society. Although Muslim Family Law is practiced within the South African Muslim communities, it is not legally recognized and/or legally enforceable. Historically, the non recognition of Muslim Family Law was linked to the potentially polygynous nature of Muslim marriages, which ran counter to the apartheid state’s definition of marriage as monogamous. Thus, the state considers marriages that are entered into between Muslim couples by Muslim rites only as illegal and invalid. This has negative consequences for Muslim women, men and children, with women being far more adversely affected. The negative consequences of non recognition of Muslim marriages are widely recorded by several scholars in South Africa and abroad. For several years, progressive and conservative Muslims have been struggling for state recognition of Muslim marriages. While there have been a couple of law reform initiatives, no legislation has been enacted yet to afford legal recognition to Muslim marriages. These initiatives are described briefly in Part C2 of this report. As a result of state inaction, several role-players came together in June 2008 and formed the Recognition of Muslim Marriages Forum (‘Forum’). The Forum is facilitated by the Commission for Gender Equality (‘CGE’). The aim of the Forum is to campaign for the recognition of Muslim marriages and to ensure that the South African Parliament attends to this as soon as possible. The Forum consists of progressive Muslim organizations such as the Muslim Youth Movement (‘MYM’) and Shura Yabafazi (‘Consultation of Women’), secular organizations such as the Women’s Legal Centre and the CGE and community activists, human rights activists, academics, social workers, attorneys etc. The Forum has met regularly and has hosted a public hearing with the Muslim communities in the Western Cape. It has also been involved with regular radio presentations with call-ins from the Muslim communities throughout the country. This report is based on information that has come out of the Forum discussions, the public hearing, radio call-ins and workshops that Forum members have hosted in the Muslim communities over the past several years. The Forum is currently negotiating with the Department of Justice and Constitutional Development to host workshops with the Muslim communities. The aim of the workshops will be to provide information about the law reform process to recognize Muslim marriages and to elicit feedback from the participants about recognition of Muslim marriages. Furthermore, Forum members host ongoing discussions with women in the communities to provide them with information about ways that they can protect themselves within marriage while it is not legally recognized. Thus, the discussions in South Africa relating to reform in Muslim Family Law are taking place in the context of recognition of Muslim marriages. Part B: Equality and Justice in the family are Necessary 1. What are the realities in your country or context that make equality and justice in

the family necessary? How are women, men and children in your country affected by current family laws and practices? Where the main problem is the introduction of regressive amendments or laws, groups should report on these challenges and the strategic actions being taken to resist such moves.

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As a result of non recognition of Muslim marriages in South Africa, Muslim women are particularly affected on the following three levels: a) They are unable to legally enforce their Islamic Law rights and benefits such as mahr and

spousal maintenance. Although there have been instances where court challenges to these have been successful, the judicial outcomes do not apply automatically to everyone. Each time a Muslim woman wishes to enforce an Islamic Law right and benefit, she must seek recourse in the courts where there is no guarantee of success. This is not an option for many indigent Muslim women.

b) Muslim Family Law is interpreted and applied within the Muslim communities by the ‘ulema. Thus, numerous discriminatory rules and practices continue to pervade those communities. Decisions rendered by the ‘ulema are considered by Muslims within those communities to be morally binding. Due to the fact that Muslim marriages are not legally recognized, Muslim women are unable to challenge those discriminatory decisions in the secular judicial system. The following are examples of the discriminatory rules and practices that manifest within the South African Muslim communities:

o Marriage by proxy for women. o Payment of mahr carries an expectation that the wife must be sexually available to her

husband. Men often defer payment until the end of marriage but refuse to pay when the marriage is terminated.

o The husband is expected to maintain his wife and family and there is a concomitant obligation for the wife to be obedient to her husband. Even where the wife contributes monetarily to the household, the expectation of obedience still exists.

o Polygyny is practised in the communities. The consent of the first wife is not required. The extent to which polygyny is practised is unknown. Therefore, research is required to determine this.

o The matrimonial estates of the spouses are kept separate and any intangible contributions by the wives are not recognized by the ‘ulema or the secular courts.

o Triple talaq is commonly practised in South Africa. Women are often simply informed that their husbands have issued talaq against them and the ‘ulema tend to confirm the talaqs without consulting the wives. This is reinforcement of the traditional approach to Muslim divorces that regards talaq as the exclusive preserve of the husband, which does not require the wife’s consent. On the contrary, a wife needs the ‘ulema’s permission to obtain a faskh to release her from the marriage. While faskh is theoretically available to women, few apply for it because the process can be “time-consuming”, “difficult”, “expensive”, and sometimes “humiliating”. Thus, Muslim women may not be able to obtain divorces from their husbands or religious tribunals.

o Women are expected to observe the iddah and the ‘ulema do not recognize payment of maintenance beyond the iddah.

o Women are expected to observe hilala.

c) Muslim women are unable to access civil law benefits. Although two options exist for Muslim marriages to be treated as legal, neither is utilized within the Muslim communities due to historical, political and religious reasons. Firstly, a Muslim marriage officiator (for example, Imam) may apply to be designated as a marriage officer under the Marriage Act 25 of 1961. This will allow the Imam to officiate a nikah, which would automatically be subject to civil consequences for marriage. Those civil consequences provide for formal equality between the spouses but are also not beyond critique on a substantive equality basis. Imams in South Africa are either ignorant of their ability to be designated or choose not to be designated because this will prevent them from officiating polygynous marriages (one cannot legally enter into a polygynous civil marriage although polygyny is legally recognized in the context of African customary marriages). The second option for Muslims to enter into a legal marriage is to contract a civil marriage either before or after having a nikah. However, most South African Muslims do not exercise this option mainly

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because a culture of entering into civil marriages does not exist within the communities. For many, there is a stigma attached to being married ‘in court’. Another reason relates to the imbalanced power dynamics between Muslim couples whereby Muslim men insist on a nikah only. Many Muslim men usually prefer not to marry civilly because they are aware that this will strengthen their wives’ position in the marriage. Given the imbalance of power at the time of entering into the marriage, the husband’s preference usually overpowers that of the wife’s. The reality in South Africa is that most Muslim marriages are not legally recognized and women suffer the brunt of a “triple”-edged sword: they cannot access their Islamic Law rights and benefits; or challenge Islamic Law rules and practices that discriminate against them; or access civil law protections. 2. In many places, the theory or government/scholarly justifications behind the family

laws are very different from the reality. How do the realities of families in your context differ from the theoretical or legal construction of the Muslim family?

Civil laws in South Africa relating to marriage and divorce provide for formal equality between the spouses. For example, parties marrying civilly enter into a default ‘in community of property’ matrimonial regime, which provides for a joint matrimonial estate; unless they specifically choose to enter into an ante-nuptial contract to either retain separate matrimonial estates (‘out of community of property without accrual’) or share in the accrual of each other’s estates (‘out of community of property with accrual’). Each spouse also has a reciprocal duty of support toward each other and in respect of their children. Furthermore, they have the same rights to divorce and the same post-divorce maintenance obligations toward each other. Moreover, they have equal rights of guardianship, custody and access in respect of their minor children born of the marriage. However, South African civil law does not recognize the unpaid labour of women in the homes. Therefore, there still exists incongruence between paper law and reality, whereby many women (across the different religions) remain at home to take care of the family while making it possible for their husbands to work and earn the income. In those situations where women work both in and outside the home, there exists a culture whereby assets acquired by the spouses are usually registered in the husband’s name. Thus, upon dissolution of the marriage, many women usually find themselves destitute. This also applies in a ‘joint estate’ situation if the wife cannot prove that she has made tangible / patrimonial contributions to the joint estate. In those instances, the other spouse (usually the husband) is able to apply for a ‘forfeiture of benefits’ of the joint estate. For example, if during the marriage, the husband paid all or most of the mortgage bond on the house, the latter would be awarded to the husband despite the parties having been married ‘in community of property’. While a civil marriage provides more protection for Muslim women than being married by Muslim rites only, they also suffer the same shortfalls relating to civil marriages as do civil law and African customary law spouses. Part C: Equality and justice in the family are Possible 1. What has already been achieved to promote equality and justice in family laws and

practices and what strategies or arguments were used in these achievements?

As mentioned above, South African civil law provides for formal equality between the spouses in the following areas: o Marriage o Divorce o Spousal maintenance o Child maintenance o Guardianship, access and custody of minor children born of the civil marriage

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o Abolition of the marital rape exemption o Protection against domestic violence o Constitutional rights to: gender equality; human dignity; freedom from all forms of violence

from public or private sources; bodily and psychological integrity, which includes the right to make reproductive decisions and the right to security in and control over the body; freedom of expression; freedom of movement and residence; freedom of trade, occupation and profession; education.

o The Constitution includes an enabling provision, which allows for the legislative recognition of religious marriages or systems of religious personal law subject to the proviso that such legislation must be consistent with other constitutional provisions, including gender equality.

2. What new ideas, strategies and ways of thinking about the issues are being used in

your country that makes equality and justice in the family possible?

In 1999, the South African Law Reform Commission (SALRC) appointed a Project Committee (PC) to draft legislation to recognize Muslim marriages. The PC comprised mostly male progressive and conservative Muslims. It conducted a four year long consultative process during which it received numerous written and oral submissions from progressive Muslim organizations, secular human rights organizations, ‘ulema bodies and individuals from within the Muslim communities. As a result of this process, the PC drafted legislation entitled the Muslim Marriages Bill (‘MMB’), which was submitted by the SALRC to the Minister of Justice and Constitutional Development (‘Minister of Justice’) in July 2003. The MMB can be accessed at http://www.doj.gov.za/salrc/reports/r_prj59_2003jul.pdf. The MMB is drafted within an Islamic Law framework and proposes to recognize and regulate Muslim marriages in South Africa. It is considered to be a compromise between progressive and conservative expectations. For example, although conservative Muslims advocated for a minimum marriageable age of nine years for females, the MMB recommends a minimum marriageable age of 18 years for females and males. Secondly, conservative Muslims insisted that polygyny be recognised in an unregulated manner. Given that the accommodation of cultural diversity in South Africa resulted in the legal recognition of polygyny in African customary marriages, there is an expectation among conservative Muslims that polygyny within Muslim marriages should also be recognized. However, progressive Muslims argued that polygyny should be abolished or tightly regulated. The MMB adopts a middle path by recommending that polygyny be recognised in a regulated form. It follows the precedent that has been set for polygyny in African customary marriages whereby a husband is required to obtain court approval for a subsequent marriage and this sanction is dependent on him being able to financially provide for all his wives. Thirdly, as an alternative to the conservative suggestion for the implementation of Shari’ah courts, the MMB recommends that the interpretation of Islamic Law be undertaken by mostly Muslim judges from within the secular judiciary. In cases of opposed divorces, the MMB recommends that Muslim judges preside with Islamic Law experts as assessors. In 2005, the Commission for Gender Equality (CGE) drafted legislation entitled the Recognition of Religious Marriages Bill (‘RRMB’), which was submitted to the Minister of Home Affairs. The RRMB is a partly secular document, which purports to afford only recognition to religious marriages including Muslim marriages. It recommends that regulation of religious marriages should remain within the ambit of the respective religious communities but that divorce should follow civil consequences. The RRMB also recognizes polygyny in an unregulated form. The RRMB was drafted because the CGE was concerned that the MMB did not adequately address gender inequalities between Muslim women and men. Unlike the MMB, the CGE did not embark on a consultative process to inform the drafting of the RRMB. To our knowledge, the RRMB is not available online. A hard copy is available from the author of this report.

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To date, neither the Minister of Justice nor the Minister of Home Affairs has submitted the draft legislation for consideration in the parliamentary process. If either bill is passed, it will alleviate the problem of recognition of Muslim marriages. However, both bills present gender equality challenges. After considerable analysis of the two draft legislation, the Forum decided to place its support behind the MMB for recognition and regulation of Muslim marriages because it promises to provide more protection for women’s right to equality and has more support within the Muslim communities than the RRMB. The Forum also recognizes that there will be another opportunity to make submissions during the parliamentary process to advocate for the MMB to be more gender sensitive. Since both bills will constitute legislation, both will be subject to constitutional scrutiny if enacted. In addition, both bills can be used to strike down discriminatory MPL rules and practices that relate to Muslim marriage and divorce. However, unlike the RRMB, the MMB additionally offers the potential for reform of MPL rules and practices that relate to Muslim marriage and divorce. Feminist activists argue that feminist interpretations of Islamic Law can be used by a secular judiciary to render gender sensitive decisions that are also religiously justifiable. Nevertheless, the CGE has not withdrawn the RRMB because recognition of other religious marriages is still considered to be a priority. During the course of the law reform process to recognize Muslim marriages, it became clear that there is a commonly held Muslim perception that Islamic Law in its ‘pristine’ form is enabling of women’s rights. However, conservative interpretations and practices of Islamic Law by uninformed ‘ulema or scholars are problematic because they are unaware of and unresponsive to the gender specific issues that women face. With this view in mind, three viewpoints appear to have evolved as potential for legal recognition of Muslim marriage and divorce. The first argues that legal recognition and regulation of Muslim marriages for example through the MMB, will make MPL rules and practices accountable to the Constitution and the state; the second view is to an extent encapsulated in the RRMB, which expects Muslim marriages to be governed by specific Muslim marriage laws while simultaneously falling under the ambit of civil law. The third view is postulated by ultra conservative members of the ‘ulema who contend that any form of compromise with the state will not result in a ‘purely’ Islamic system of marriage and divorce and therefore recognition by the state will not be effective for Muslims. 3. What kind of collective or individual initiatives have people used in order to get

around the negative impacts of the family law? What people or institutions have provided women with support in this process?

Secular human rights and women’s rights NGOs such as the Legal Resources Centre and the Women’s Legal Centre have instituted legal action on behalf of Muslim women and have successfully obtained enforcement of certain Islamic Law rights and benefits. However, these organizations only have a mandate to represent parties in precedent setting cases. They are therefore unable to assist indigent women to access rights and benefits that have already been recognized by the courts. Due to non recognition of Muslim marriages, even those Islamic Law rights and benefits that have been recognized by the courts are not automatically available to Muslim parties. The latter have to access the judicial process each time they want an Islamic Law right and benefit recognized. Furthermore, these types of actions have to be instituted in the High courts. Since Legal Aid Clinics do not always have the funding to institute actions in the High Court, many indigent Muslim women are denied access to justice.

In addition, progressive organizations such as the MYM and Shura Yabafazi, which aim to promote equality for Muslim women in the context of Muslim Family Law, engage in empowerment programmes to educate Muslim women about their secular and Islamic Law rights. Attorneys and advocates that are involved with these organizations also provide assistance to Muslim women on a pro bono basis where possible.

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As mentioned previously, the above organizations and other organizations and individuals are members of the Recognition of Muslim Marriages Forum, which is campaigning for the legal recognition of Muslim marriages and engage awareness raising efforts regarding secular and Islamic Law rights. 4. What kinds of arguments (religious, legal, social, cultural) have been used against

those who are fighting for equality and justice within the family? How have you successfully fought back against these arguments?

The ‘ulema argue that Islam places men on a superior level to women and that the Qu’ran simply requires equity (not equality) between men and women. In their most liberal forms, they argue for gender rights in terms of a paradigm of gender complementarity and gendered divisions of labour. They maintain very strict limits to the extent to which they are willing to accommodate legal change. While they may at times be open to drawing on other schools of law for more facilitative interpretations, they remain committed to maintaining strict adherence to individual schools. Traditional gender norms are given priority in spite of changes in contemporary Muslim communities in South Africa. Organizations such as the MYM and Shura Yabafazi counter these arguments by contending that a feminist interpretation of the Qur’an places men and women on an equal level to each other and in fact promotes equality between the sexes. These progressive organizations recognize the need to challenge the assumption that Fiqh is divine and that education on this issue is required within the Muslim communities. For strategic reasons, the process of raising the challenge within the communities is a slow one, which the organizations have begun to undertake through awareness raising programmes and public debates. Furthermore, the MYM and Shura Yabafazi regard conservative and andocentric interpretations of Islamic Law as narrow and unreflective of the ability of the law to accommodate changing contexts. Those interpretations also reflect patriarchal attempts at maintaining a monopoly on legal knowledge, which is unresponsive to the needs of contemporary Muslim communities in South Africa. For example, when a Muslim marriage ends, the ‘ulema does not recognize a right of maintenance for the ex-wife beyond her iddah period. If the woman has been financially dependent on her husband during the marriage, does not have any assets at the date of termination of the marriage, has not developed any skills to be considered employable in the job market and cannot rely on her family for financial support, she will be left destitute in the absence of maintenance contributions by her ex-husband. Moreover, since their Muslim marriage is not legally recognized, she cannot rely on being awarded maintenance by a secular court. Therefore, the MYM and Shura Yabafazi argue that Islamic Law needs to be cognizant of the socio-economic realities of Muslim people by being interpreted in a way that is responsive to the needs of all sectors of the Muslim communities. Resources Selected papers: Amien, Waheeda ‘Overcoming the conflict between the right to religious freedom and women’s rights to equality - a South African case study of Muslim marriages’ Human Rights Quarterly 28 (2006) 3 John Hopkins University Press 729-754. Bangstad, Sindre ‘When Muslims Marry Non-Muslims: Marriage as Incorporation in a Cape Muslim Community’ Islam and Christian-Muslim Relations 15 (2004) 3, 349-364. Bonthuys, Elsje; du Plessis, Lourens ‘Saakbesprekings/Case Notes. Whither the validity of marriages concluded under a system of religious law under the transitional Constitution? Kalla v The Master 1994 4 BCLR 79 [T]’ SAPR/PL, 1995, 10, 200-210.

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Cachalia, Firoz ‘Citizenship, Muslim family law and a future South African constitution: a preliminary enquiry’ THRHR, 1993, 56, 392-413. Church, Joan ‘The dichotomy of marriage revisited: A note on Ryland v Edros’ THRHR, 1997, 60, 292-295. Clark, Brigitte; Kerr, A.J. ‘Dependant's action for loss of support: Are women married by Islamic rites victims of unfair discrimination?’ SALJ, 1999, 116, 1, 20-27. Esplugues, Carlos A. ‘Legal recognition of polygamous marriages’ CILSA, 1984, XVII, 302-321. Freedman, Warren ‘Islamic marriages, the duty of support and the application of the bill of rights. Amod v Multilateral Motor Vehicle Accident Fund 1997 12 BCLR 1716 (D)’ THRHR, 1998, 61, 532-538. Gabru, N. ‘Dilemma of Muslim women regarding divorce in South Africa’ Potchefstroom Electronic Law Journal, 2004, 2, 1-15. Jeenah, Na'eem ‘The MPL Battle in South Africa. Gender Equality vs. "Shari'ah"’ July 2004, Presented at an international workshop entitled "Shari'ah Debates and its Perceptions by Muslims and Christians in Selected African Countries". Organized by the German Institute for Middle Eastern Studies, University of Bayreuth, Germany. Held in Limura, Kenya. Kaganas, F.; Murray, C. ‘Law, Women and the Family: the Question of Polygyny in a new South Africa’ Acta Juridica, 1991, 116 Moosa, Najma ‘The interim and final constitutions and Muslim Personal Law: Implications for South African Muslim Women’ Stell. L.R., 1998, 9, 2, 196-206. Moosa, Ebrahim ‘Prospects for Muslim Law in South Africa: A History and Recent Developments’ Y.B. Islamic and Middle Eastern Law, 1996, 3, 130-155 Pienaar, J.M. ‘Duty to support and the dependant's claim: The struggle of women married in terms of customary and Muslim law’ Stell. L.R., 2006, 2, 314-332. Rautenbach, C. ‘Some comments on the current (and future) status of Muslim Personal Law in South Africa’ PER, 2004, 2, 1-34. Roodt, Christa ‘Marriages under Islamic law: patrimonial consequences and financial relief’ Codicillus, 1995, 36, 2, 50-58. Seedat, Fatima ‘Determining the Application of a system of Muslim Personal Law in South Africa’ ARISA (University of Cape Town, June 2000). Tayob, Abdulkader ‘The Struggle over Muslim Personal Law in a Rights-Based Constitution: A South African Case Study’ Recht Van De Islam, 2005, 22.

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Two examples as to why equality and justice in the family are necessary: The following have been extracted from Amien, Waheeda ‘Overcoming the conflict between the right to religious freedom and women’s rights to equality - a South African case study of Muslim marriages’ Human Rights Quarterly 28 (2006) 3 John Hopkins University Press 729-754 Example 1: Triple talaq is commonly practiced in South Africa. Ordinarily, members of the ‘ulema confirm the talaqs by issuing a certificate to the men (although this is not required for the talaq to be considered valid; the certificate merely has evidentiary value to indicate that a talaq has taken place). In many instances, talaq is given without the wives’ knowledge or consent and they could simply be informed by the husband or ‘ulema that talaq has been issued against them. Although faskh is theoretically available to women, few apply for it because the process is not made easily available to them and usually the judgments are not rendered in their favour. To reverse the above type situation, divorce in Islam should be interpreted in a way that affords men and women equal rights to divorce. Neither should have a unilateral right to repudiate the other. Instead, each should be required to provide the same grounds for a divorce action, which should be adjudicated. Example 2: In the case of Ryland v Edros 1997 (1) BCLR 77 (C); 1997 (2) SA 690, the Cape High Court accepted the Muslim marriage as a contract that could be enforced provided the terms of the contract could be proven. Among others, the ex-wife claimed compensation for her intangible contributions during the subsistence of the Muslim marriage. She and her ex-husband had lived in the Western Cape province, which predominantly follows the Shafi’i school of thought. The ex-wife’s Islamic Law expert pointed out that Malaysia, which is a Muslim country and also predominantly follows the Shafi’i school of thought recognizes those contributions as part of their law. Therefore, she contended that compensation for her contributions implicitly formed part of their Muslim marriage contract. However, since recognition of intangible contributions in the marriage is not an acceptable mainstream practice within the Western Cape Muslim communities, the Court decided not to find in favour of the ex-wife on this point. Thus, the Court gave effect to the ‘ulema’s male-centred interpretation of a wife’s contributions within the marriage. To prevent the above type situation from recurring, two things need to happen: Firstly, the Muslim communities need to be made aware that alternative interpretations relating to a wife’s intangible contributions in the marriage do exist and that they are religiously justifiable. If sufficient Muslims start adopting those interpretations in their daily practices, it is possible that the ‘ulema may accept them too. Secondly, the judiciary needs to be sensitized to the fact that there are equally valid and religiously justifiable interpretations of Islamic Law that can be adopted, which are compatible with gender equality. This report was written by Waheeda Amien, a legal academic in consultation with Fatima Seedat, a gender consultant (both of whom are women’s rights activists involved in Muslim family law reform processes) as well as two progressive Muslim organizations namely, the Muslim Youth Movement (per Mohammad Groenewald) and Shura Yabafazi.

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