While the South African Constitution serves as the legitimate legal instrument on the enshrinement of the rights of individuals to be freely who they are, without fear or prejudice from others, it does little to ensure that these rights are enacted and protected across the landscape of social engagement. This is especially prevalent where a particular grouping is in a minority, and where the isolation of an apartheid way of life ensured that little was known or debated about within the community.

As just one minority group within South Africa, the Muslim community has the right to freely practise its religious and traditional practices, and to comfortably enjoy a certain freedom of expression which is not always found by other minority groups elsewhere in the world. But beneath the social surface of this community, more and more questions are emerging regarding the legal rights of the Muslim woman – not within her role as a South African citizen, but within her legal role as a wife: how this is constituted, exercised, and in the event of divorce or death of her spouse, what this means to her in terms of access to resources.

This article describes some of the strategic litigation attempts of the Women’s Legal Centre (WLC) in Cape Town in relation to legislation recognising Muslim marriages.

Using strategic litigation to advance the rights of Muslim women

The WLC identifies as a feminist organisation and argues that a contextual and intersectional approach forms part of any definition of feminism in South Africa which aims to use litigation to achieve women’s equality. The WLC uses the law to bring about change through strategic or impact litigation, a method used by attorneys, usually non profit organisations (NPO), to advance human rights and create broad social change through the court. The most common method is through the establishment of effective and enforceable law, i.e. creating precedents.

Over the years, the WLC has been approached for legal help by many Muslim women to challenge the discrimination caused by their marital status. The issue is that in South Africa, Muslim women cannot turn to the courts for protection on the dissolution of their marriages if they are married by religious rites only. Such marriages are not recognised by the state as legal and therefore do not have legal consequences. Many women are subsequently  deprived of fair access to resources, including their homes, on the dissolution of their marriages through death or divorce.

The failure of the state to recognise these marriages means that all women married by Muslim law do not enjoy the protections offered by civil marriages. The WLC argues that this amounts to discrimination and marginalisation. The first case that the organisation took up to challenge this discrimination was the groundbreaking case of Daniels v. Campell.

Zuleigha Daniels married Mogamat Amien Daniels in 1977 according to Muslim rites. In 1994 Mr Daniels died without leaving a will. The only real asset in his estate was a house which, according to the legislation relating to persons dying intestate, was to be inherited by the surviving spouse. The primary legal issue became whether Mrs Daniels could be deemed the surviving spouse of the deceased, given that their marriage was solemnised according to Muslim rites only.

Mrs Daniels approached the WLC for help to prevent her from losing her home which she had lived in for more than two decades and to which she had financially contributed to and maintained. The WLC made a successful application to the Cape High Court in 1999 to have her rights asserted as her late husband’s surviving spouse in terms of her constitutional right to freedom of religion, equality and dignity.

The WLC later intervened as an amicus curiae (friend of the court) in the watershed case, Hassam v Jacobs NO and Others (CCT83/08) [2009] ZACC 19, which gave recognition to polygamy in Muslim marriages for the purpose of inheritance, where the husband died intestate and having more than one wife to whom he was married according to Muslim rites.

There is no provision in South African law for polygynous Muslim marriages allowing more than one wife to inherit intestate and be maintained. However, the WLC’s position was that excluding surviving spouses from polygynous Muslim marriages would be inconsistent with the purpose of the constitution to provide human dignity, equality and freedom. Muslim men are permitted under the Qur’an to marry more than one woman. Not extending the concept of “spouse” and “survivor” to polygynous Muslim marriages therefore discriminates against such widows solely because of an aspect of their faith, violating their rights to equality based on marital status, religion and culture, as well as violating their right to dignity.

As a result of this case, Section 1(4)(f) of the Intestate Succession Act 81 of 1987 was declared inconsistent with the constitution, to the extent that it makes provision for only one spouse in a Muslim marriage to be an heir in the intestate estate of their deceased husband. The section was substituted with a statement that if more than one spouse survived a deceased person, the value of the estate would be divided by the number of children of the deceased who have either survived or predeceased such deceased person but are survived by their descendants, plus the number of spouses who have survived such deceased.

The Hassam judgment reflects the success of strategic or impact litigation to be able to change the interpretation of the law in the interests of women in the broader community where there is no legislative framework to afford the necessary protection.

Taking on ‘the President’

As much as the piecemeal development of the law by the courts is making inroads towards recognising Muslim marriages in South Africa, legislation is necessary to help the broader Muslim community by having provisions to ensure that Muslim women’s rights are protected. This led to the WLC launching a class action in 2009, believing that as a strong advocate of women’s rights it had a duty to advocate for the passage of legislation for which there has in fact been a draft bill since 2003 – the Muslim Marriage Bill drafted by the South African Law Reform Commission after extensive research and public comment.

The WLC brought its application directly to the Constitutional Court. Our application was for an order declaring that the president in his capacity as the head of the National Executive had failed to fulfil the obligation imposed on him by the constitution to protect, promote and fulfil the rights of the constitution. We also asked the court to compel the president and parliament to pass legislation within eighteen months recognizing Muslim marriages and regulating their consequences.

The response to our application was overwhelming. Many Muslim organizations formally vied to enter the court arena, either wanting to be a party to the proceedings to oppose the WLC’s application or to be a friend of the court and make submissions in support of our position. Notably, the United Ulama Council of South Africa, the umbrella body of Muslim religious bodies in the country, voted in favour of supporting the implementation of Muslim Personal Law (MPL) in South Africa, with one constituent body dissenting. The majority of these bodies realized that a legislative framework would be necessary to protect Muslims’ interests, rather than relying on the courts on an ad hoc basis, which could be more threatening to the sanctity of their religion if the courts get involved in doctrinal issues.

Informally the WLC received a flurry of “objection mail” from a vociferous Muslim minority objecting to our interference in the religious affairs of Muslims and deeming our application  a “misguided effort which aims to be a threat to the Holy Quran.”

The Constitutional Court found that our application was a matter that would have benefit for other courts, and that a multistage litigation process would have the advantage of isolating and clarifying issues that may require the resolution of conflicting expert and other evidence. However, it was the considered opinion of the WLC that the delay in passing the bill relating to Muslim marriages constituted extraordinary circumstances in the interests of justice that warranted a direct application to the Constitutional Court. While the ruling was a setback, we did not consider that we had “lost” because our application caused the Minister and Department of Justice to publicly announce the prioritising of the Muslim Marriage Bill in the 2010 legislative timetable. The Muslim Marriages Bill was finally published in December 2011 and invited submissions from the public. Yet to date there have been no further developments in the passing of legislation to recognise Muslim marriages. In response to our queries regarding the status of the Bill, the WLC has been advised that due consideration is being given to the submissions received.

Equality and religious freedom

Although the courts have made significant progress towards the development of the recognition of MPL in South Africa, one cannot rely on them to provide relief to the majority of Muslim women who do not have the financial resources, education and/or time to turn to the courts. Piecemeal legislation is costly and time-consuming; the average Muslim woman cannot afford it.

It has been asked why there is need for MPL to be legislated at all when the problem of the status of women in Muslim marriages can be easily addressed by registering these marriages, which would allow women access to court when they need it. This is what many Muslims are already doing because the relevant legislation is taking so long to be implemented, and in April 2014 many Muslim clergy registered as marriage officers which makes it more accessible for Muslim couples to marry legally at the same time that they perform their religious ceremony . However, this does not solve the problem in that civil marriages in South Africa do not make allowance for polygynous marriages; and furthermore, as South Africans, many Muslims feel that their contribution to the liberation struggle gives them some entitlement to practice their religion freely in terms of the constitution.

Legislation is imperative to protect the Muslim woman’s right to turn to the courts for protection. The process of implementing such legislation would be through consultation with those whom it affects, which can help to ensure that religious principles will be respected.

The Muslim Marriage Bill is not without its flaws and remains contested. According to Waheeda Amien, formerly of the Law, Race and Gender Project at the University of Cape Town, even though the problems remain challenging, with the new legislative process South Africa stands at the forefront of countries with minority Muslim populations in moving to entrench religious rights within the framework of civil law.

This is an abridged version of an article first published in Feminist Africa. Read the full article here. Please use original source if citing.

This article is part of a collaboration between 50.50's Our Africa and Feminist Africa. Feminist Africa is a journal published by the African Gender Institute, University of Cape Town, that offers cutting-edge, informative and provocative African feminist scholarship. View all articles in the series