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 womens 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 states 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 Womens 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.

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
o

o
o

o
o

Marriage by proxy for women.

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.
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.
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.
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.
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 wifes consent. On the contrary, a wife needs the ulemas
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 timeconsuming, difficult, expensive, and sometimes humiliating. Thus, Muslim
women may not be able to obtain divorces from their husbands or religious tribunals.
Women are expected to observe the iddah and the ulema do not recognize payment
of maintenance beyond the iddah.
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

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 husbands preference usually overpowers that of the wifes.
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 others
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 husbands 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
o
o
o
o

Marriage
Divorce
Spousal maintenance
Child maintenance
Guardianship, access and custody of minor children born of the civil marriage

o
o
o

Abolition of the marital rape exemption

Protection against domestic violence
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.
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 Shariah 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.

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 womens 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 womens 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 womens rights NGOs such as the Legal Resources Centre and the
Womens 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.

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 Quran
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 Quran 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 exhusband. 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
womens 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.

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, 302321.
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.

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 womens rights to equality - a South African case study of
Muslim marriages Human Rights Quarterly 28 (2006) 3 John Hopkins University Press 729754
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 Shafii school of thought.
The ex-wifes Islamic Law expert pointed out that Malaysia, which is a Muslim country and
also predominantly follows the Shafii 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 ulemas male-centred interpretation of a wifes
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 wifes
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 womens 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.