2.1 The constitutional text: cultural/religious diversity and gender equality

South Africa's Constitution envisages a democratic nation that ‘belongs to all who live in it, united in our diversity’,Footnote ¹ and entrenches a series of fundamental values and rights to protect and nurture South Africa's rich cultural and religious diversity. The Bill of Rights recognises individual freedom of religion, belief and conscience,Footnote ² and of association,Footnote ³ as well as the rights of ‘persons belonging to cultural, religious and linguistic communities … to enjoy and practice their culture, religion and language and to participate in cultural, religious and linguistic associations’.Footnote ⁴ Freedom from unfair discrimination based on religion, conscience, culture, ethnic and social origin, language and belief is also entrenched.Footnote ⁵ Significantly, the Constitution recognises the right to be governed – in some areas of life – according to customary or religious law. Thus Section 15(3) provides for ‘legislation recognizing … marriages concluded under any tradition, or a system of religious, personal or family law’, as well as legislation recognising ‘systems of personal or family law under any tradition, or adhered to by persons professing a particular religion’.

Taken together, these provisions ‘positively enabl[e] individuals to join with other individuals of their community, and negatively enjoin … the state not to deny them the rights collectively to profess and practise their own religion (and enjoy their culture)’:Footnote ⁶

Importantly, this recognition of diversity is constrained by the Constitution. Cultural and religious rights may not be exercised ‘in a manner inconsistent with the Constitution’,Footnote ⁸ and the legislative recognition of customary and religious law ‘must be consistent with … the Constitution’.Footnote ⁹ These provisions are textual indicators of the supremacy of the Constitution over religious and cultural communities and their internal norms, rules and practices. As with the recognition of diversity, they must be understood in the context of South Africa's apartheid past and a commitment to overcoming exclusion and subordination. First, constitutional constraints on cultural and religious freedoms are there to prevent the continuation of apartheid-like practices of particular groups. As Justice Sachs suggested in Christian Education v. Minister of Education, the Constitution seeks to prevent the ‘privatisation’ of ‘constitutionally offensible group practices’, especially those ‘practices previously associated with the abuse of the notion of pluralism to achieve exclusivity, privilege and domination’.Footnote ¹⁰ Second, Justice Sachs notes the need to address ‘oppressive features of internal relationships primarily within the communities concerned’.Footnote ¹¹ Not only is the Constitution concerned with removing inter-group inequality and hierarchy, but also with remedying intra-group domination.

If overcoming the legacy of apartheid is paramount in the Constitution, so too is the need to overcome inequalities and subordination based on gender. The Constitution is particularly strong on gender equality. Section 1 describes South Africa as a sovereign, democratic state founded on the primary democratic values of ‘human dignity, the achievement of equality and the advancement of human rights and freedoms, [and] … non-racialism and non-sexism’. Section 9 encapsulates an equality guarantee that prohibits unfair discrimination on the basis of, inter alia, gender, sex, pregnancy and marital status, and all law and conduct is subject to this prohibition.Footnote ¹² This protection is repeated in the constitutionally mandated Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000, prohibiting discrimination in the public and private spheres.Footnote ¹³ This Act is universal in scope and jurisdiction in that it provides no automatic exemptions for religion or culture. All customary and religious rules and practices are subject to the Act;Footnote ¹⁴ it is only in the adjudication of what is fair or unfair discrimination that a line may be drawn around particular religious or cultural practices.Footnote ¹⁵

South Africa's commitment to equality envisages substantive equality as actual, lived equality in socioeconomic life, based on the idea that each person should be free to develop to his or her potential, and no person should be subject to disadvantage or marginalisation.Footnote ¹⁶ Importantly, this extends into the private sphere. The Constitutional Court has recognised the need for the law to take account of the disadvantageous impact of the sexual division of labour in the home,Footnote ¹⁷ the importance of defending women's bodily autonomy in the private sphere,Footnote ¹⁸ and the disadvantage that women have suffered under patriarchal forms of family law.Footnote ¹⁹

South Africa's Constitution mandates a cultural and religious diversity and pluralism that is limited or balanced by other constitutional rights and principles, including substantive gender equality. Although the Constitution recognises the importance of ‘the right to be different’ according to one's cultural and religious context, and not always to be subject to the general or dominant norm,Footnote ²⁰ this is not an untrammelled set of rights. By making cultural and religious rights ‘subject to the Constitution’, the Constitution creates room to affirm cultural or religious identity and to address cross-cutting and sometimes conflicting rights and values, such as gender equality.

2.2 Recognising customary/religious law and gender equality under a transformative Constitution

Achieving a balance between diversity and gender equality is a continuous (legal and jurisprudential) challenge, especially as the South African Constitution is also a self-consciously ‘transformative’ one that seeks to ‘[h]eal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights’, and to ‘[i]mprove the quality of life and free the potential of every person’.Footnote ²¹ The Constitution thus envisages a society based on equality and social justice, in which there is an emphasis on overcoming poverty and inequality, and turning away from exclusion and disadvantage (Albertyn and Goldblatt, Reference Albertyn and Goldblatt1998, p. 249). Perhaps the most fundamental fault lines of inequality and disadvantage in South African society are those of race, gender and class.

This idea of transformation is complex, engaging issues of personal and collective identity, social and cultural norms, material conditions and economic justice. It raises particular legal challenges about how to manage cross-cutting inequalities and rights conflicts within the overall vision of the Constitution, to reconcile cultural claims that implicate gender, or gender claims that implicate religion and class.

Unlike the sharp divide between public rights and private culture and religion, or between the religious and the secular, that has characterised older, Western democracies, South Africa's Constitution seeks to affirm religious and cultural identity and rights in an egalitarian, non-hierarchical manner. Central to this is a (re)valuing of the norms and values of those whose religion and culture was denigrated in the past, subject to an overall set of democratic, constitutional values. The real challenge here is not to valorise civil law as the desired standard, as it is also both cultural and religious, encapsulating gendered and partial liberal and Christian norms.

At the same time, when the recognition of culture and religion intersects with women's social and economic vulnerability, the plight of those affected is not ignored by the Constitution. In South Africa, as elsewhere, women have been subject to gendered misrecognition within different cultural and religious conceptions of family (including the ‘Christian’ marriage of the common law), and have been constrained by traditional gender roles as wife and mother in the private sphere (Sinclair, Reference Sinclair and Heaton1996). This misrecognition is inescapably linked to gendered maldistribution,Footnote ²² skewing women's access to power, resources and benefits, and defining these through their relationships with men. Even more vulnerable are those women who find themselves in cohabiting relationships that enjoy little social recognition and no legal protection (Sinclair, Reference Sinclair and Heaton1996; Goldblatt, Reference Goldblatt2003). Law reform needs to be wary of shifting the burden of cultural misrecognition onto women, by failing to see the gender dimensions of both misrecognition and maldistribution.

A transformative approach to family law must recognise that different cultural and religious identities and ways of life are worthy of protection, but that, to the extent that they limit women's autonomy and equality, they are also subject to change. Here, the state has a role to play in prohibiting discriminatory rules and practices and setting minimum standards. At the same time, the limits of state law in the face of deeply held religious and cultural beliefs need to be recognised, and processes identified for democratic engagement over the nature and form of change. Thus an important theme underlying family or marital law reform in South Africa's plural society is the quest to affirm cultural and religious diversity and substantive equality. In its best sense, this ‘quest’ should not take place under a Constitution that is understood to enshrine a fixed set of ‘liberal’ values against which religious and cultural norms and rules are tested in the classic liberal, multicultural sense. Rather, these constitutional values are seen to be more contingent and contested, clearly establishing standards for law and conduct, but doing so with an understanding of the South African context and in dialogue with the norms and interpretations of its diverse communities (Albertyn, Reference Albertyn2009). In this sense, transformation under the Constitution is also a process of ‘becoming’, of dialogue (Botha, Reference Botha2002) and of a willingness to build a society based on sameness and difference.

While this is the best interpretation of the Constitution, the reality expressed through constitutional jurisprudence has been mixed. Some cases have articulated a powerful recognition of sameness and difference, especially where this is understood to entail equal concern and respect across group differences. This was forcefully articulated in Minister of Home Affairs v. Fourie Footnote ²³ in relation to the legal recognition of same-sex relationships against religious objections:

The Constitutional Court has also condemned the discrimination suffered by women within customary law, stating in Bhe v. Magistrate Khayalitsha, a case on customary inheritance, that primogeniture is ‘a form of discrimination that entrenches past patterns of disadvantage among a vulnerable group, exacerbated by old notions of patriarchy and male domination incompatible with the guarantee of equality under this constitutional order’.Footnote ²⁵

However, many scholars have pointed to the manner in which successful constitutional challenges to the misrecognition of same-sex couples and women's inequality within families have been limited to marriage-type relationships (De Vos, Reference De vos2004; Albertyn, Reference Albertyn2007; Meyerson, Reference Meyerson2010). This prioritisation of marriage as the preferred social institution has broadened the net of inclusion of accepted relationships, but has excluded others. In particular, it has left women in cohabiting relationships without legal protection.Footnote ²⁶ This is cause for concern as it signifies a limited recognition of gendered social and material disadvantage within relationships and questions the extent to which courts will interrogate the complexity of inequalities within relationships and protect gender equality in the face of ‘accepted’ norms. Put simply, despite progressive judgments that have placed constitutional limits on the reach of culture and religion, and have advanced equality based on sex/gender and sexual orientation, there are clear limits to the role of courts in addressing the complexity of the transformative project. Mindful of these limits, this article nevertheless argues for the ‘best’ interpretation of the Constitution and insists on a role for courts in transformation.

The ‘best’ transformative interpretation of the Constitution envisages a complex tapestry where cultural and religious rules and norms do not operate in discrete communities, but are subject to other claims and rights, and to the development of common norms and processes that bind – norms that emanate from the Constitution. In Minister of Education, Kwazulu-Natal v. Pillay, a case dealing with cultural discrimination, Constitutional Court Justice Kate O'Regan argues that South Africa's notion of unity in diversity:

These views suggest that the resolution of conflicts between culture and religion, and constitutional rights, should take place within an ongoing process of engagement to reach ideas of shared identity and shared justice, to find sameness amongst multiple differences. It is through democratic engagement and institutionally enabled dialogue that ideas of shared identity and shared justice can be developed across religious and cultural difference (Addis, Reference Addis, Shapiro and Kymlicka1997). This is the best interpretation of the Constitution: a framework of inclusion and difference, of managing intersecting inequalities, of valuing cultural/religious diversity, and advancing substantive gender equality. To the extent that it envisages process and dialogue, and also contestation, it suggests that the best and most transformative solution might be one that has to be fought for, step by step, over time.

2.3 Legal pluralism and family law reform

This raises important questions about how to address the multiple inequalities of culture/religion and gender that have characterised South African family law. Shachar (Reference Shachar2001) makes a useful distinction between ‘religious particularism’ and ‘secular absolutism’. In the former, different religious (and cultural) communities enjoy legal power over the personal status of their members, and have authority to follow their own traditions in family law, including marriage and divorce. In the latter, as the concept implies, the state retains full authority over all family law matters, which are subject to a single, secular law. Secular absolutism takes different forms.Footnote ²⁸ A hard version denies any recognition to marriages celebrated according to religious or cultural rites, while a softer version would allow cultural and religious authorities some power to officiate under the overall authority of the state. Clearly, secular absolutism enables the state to legislate to address gender inequalities within marriage, while this is limited within a religious particularist model.

Prior to 1994, South Africa combined hard and soft versions, denying full recognition to religious and customary marriages and enabling officials of recognised religions to conclude legal marriage ceremonies.Footnote ²⁹ The authority of the secular model to address gender inequalities within marriages was limited to civil law and state recognised marriages. At the same time, the absence of any recognition for Muslim marriages meant that they effectively fell within a religious particularist model in which marriage was solely regulated by religious authorities. This fragmented and contradictory system of family (non-)regulation sets up considerable challenges for law reform.

An approach that affirms cultural/religious diversity and addresses substantive gender inequality falls somewhere between the two extremes of ‘religious particularism’ and ‘secular particularism’. Shachar advocates for a model of dual or shared responsibilities between the state and religious authorities. Part of her motivation for this is to avoid families living outside the law, or religious authorities overruling state authorities to the detriment of women. She argues that the better approach seeks to achieve consensus and encourage religious groups to reform from within.

Arguably, the ‘best interpretation’ of the South African Constitution requires law reform that sets minimum standards for gender equality, that recognises religious and cultural differences, that enables effective choice between different forms of relationships, and that engages all groups in dialogue over the best way to build solidarity through common and diverse norms and values. It has been argued that the best way to proceed with family law reform is to provide universal legal protection based on a functional definition of family, effectively privatising cultural and religious traditions whilst guaranteeing women minimum rights (Goldblatt, Reference Goldblatt2003; Bonthuys, Reference Bonthuys2010; Meyerson, Reference Meyerson2010). In theory, this approach seems to offer the best protection for women and affirms cultural/religious diversity. In practice, as the following discussion suggests, the politics of law reform mean that this is not axiomatic. In the light of South Africa's particular history and the complexity of transformative outcomes, the process and substance of reforming family law has been far more uncertain and contested.

4.1 From apartheid to democracy

Customary law in South Africa has a long history of codification by colonial and apartheid authorities. Within the system of indirect rule, customary law was permitted as a lesser system of law. In marriage this is epitomised by the term ‘customary union’, signifying inferiority to civil marriage, as customary marriages were potentially polygynous and against public policy and good morals. At the same time, with assistance from male customary elders, colonial and apartheid rulers entrenched a distorted and inflexible version of custom that deepened the inequality of women (Chanock, Reference Chanock1985). Women suffered lower status and limited access to resources and benefits. In marriage, women were legally, economically and socially subordinate to their husbands. By 1994, women were still minors in customary law, under the guardianship of their husbands or fathers. In marriage, they had few, if any, rights to property and over children. The legal entrenchment of the rule of male primogeniture meant women had no enforceable rights to inheritance (Robinson, Reference Robinson1995). Women also had little independent access to land (especially under communal tenure), and traditional power was almost exclusively the preserve of men (Walker, Reference Walker1994).

To avoid the discriminatory consequences of customary unions, women would move between customary and common law to seek the best protection (Mbatha, Reference Mbatha1997; Griffiths, Reference Griffiths1997). In this context civil marriage signified legal certainty and vested rights, especially as it trumped customary marriage before 1988. Women sought civil marriage as a form of protection against multiple marriages and to secure rights over property. When couples entered civil marriages it was common for their families to negotiate lobola (brideprice) to secure social recognition for the marriage (Mbatha, Reference Mbatha1997).

Apartheid rule had re-established and deepened the authority of traditional leaders over community members in respect of marriage, family and succession, the settlement of disputes, and the adjudication of criminal offences in traditional courts. Chiefs came to be viewed as the sole custodians of custom, often ruling by decree rather than following community-based practices and norms contained in a more flexible, living law (Claassens, Reference Claassens2011). This idea of ‘living law’ recognises that culture and custom are neither static nor monolithic and that practices vary across time and space. It differs from ‘the official body of law employed in the courts and by the administration (which … diverges most markedly from actual social practice) … [and] the law used by academics for teaching purposes’ (Bennett, Reference Bennett1991, p. vi). In 1994, customary marriage was formally part of this official body of law, with gender discrimination entrenched in the official form.

The opportunity to write a new Constitution in the early 1990s saw women mobilise to ensure inclusion in that democracy (Albertyn, Reference Albertyn and Murray1994). It was expected that this new Constitution would entrench the equal rights of women and men, and provide the legal means for challenging discrimination in customary and common law. Implicit within this was a deeper challenge to men's authority within the family and the community, as one of the key demands of progressive women was to overcome gender inequalities under the system of traditional leadership (where women were unable to participate in decision-making structures or hold positions of authority) and to secure constitutional protection against discriminatory cultural practices (Albertyn, Goldblatt, Hassim, Mbatha and Meintjes, Reference Albertyn, Goldblatt, Hassim, Mbatha and Meintjes1999, Chapter 1). The 1994 Charter of the Women's National Coalition, the major civil society alliance of women in the early 1990s (Albertyn, Reference Albertyn and Murray1994), stressed the need for legal change to customary law and stated that ‘[c]ulture, custom and religion, insofar as they impact upon the status of women in marriage, in law and in public life, shall be subject to the equality clause in the Bill of Rights’.Footnote ³² The importance of this objective is underlined by the fact that customary law applied to rural, African women, the most disadvantaged group in South Africa.

These ideas of women as equal rights-bearing citizens, able to challenge discrimination within the family and community, were not uncontested. Walker writes that the early 1990s witnessed an increase in the ‘politics of traditionalism’ (1994, p. 347) apparent, inter alia, in the mobilisation by traditional leaders to secure their authority in the new dispensation. This not only involved a claim for constitutional recognition of traditional leaders, but also extended to the demand that customary law be exempt from the Bill of Rights, especially the right to equality. Anxious to maintain power and authority under the new democracy (and thus a patriarchal and traditional status quo), traditional leaders argued that human rights were foreign, Western ideas that had no place in traditional communities. Underlying these arguments was the idea that women should retain their traditional position, under the ‘protection’ of customary law, subordinate to men and dependent upon them for resources and benefits (Albertyn, Reference Albertyn and Murray1994; Reference Albertyn2009).

African women opposed these claims, thus drawing a line in the sand between the idea of women as equal, rights-bearing citizens and as subjects of traditional power and paternalism. It is no surprise that the dominant discourse of inclusion, equality and democracy during the transition saw women's claims to full citizenship accepted in the Constitution (Albertyn, Reference Albertyn and Murray1994). The Constitution recognised customary law as an independent source of law, but subject to the supremacy of the Constitution, including the equality guarantee.Footnote ³³

4.2 A positive experience of law reform?

This particular ‘battle’ for inclusion and the entrenchment of gender equality and equal citizenship in the Constitution formed the context for customary marriage law reform in the mid 1990s. In 1996, the SALRC, an independent statutory body mandated to develop proposals for law reform, embarked on a consultative process to develop a draft law to recognise customary marriage in harmony with the new Bill of Rights (as part of a broader project to harmonise customary law with the Constitution). Women's organisations and traditional leaders were well represented in the consultation, and their views are captured in the final report (SALRC, 1998). This Report reached two important conclusions. First, it accorded full recognition to customary marriage and endorsed a separate marriage law to rectify the historic inequalities between civil marriages and customary unions (and thus between the dominant ‘White’ culture and African cultures).Footnote ³⁴ Although some women's organisations advocated a single marriage law that codified the essential requirements and basic rights pertaining to marriage, and left cultural and religious practices (such as lobolo or brideprice) to the private sphere (SALRC, 1998, s. 1.4.2); this approach was seen to be difficult to implement and politically untenable in the light of South Africa's past denigration of African culture (SALRC, 1998, ss. 2.1.17–2.1.28). Second, the SALRC entrenched equal rights for women in customary marriage, noting that the ‘Constitution has sent a clear message … that discrimination will no longer be tolerated and that women … can expect the law to be changed in their favour’ (SALRC, 1997, s. 2.1.1). The Customary Marriages Bill thus secured women's rights to status, property, decision-making and children within the family.

After further deliberation in Parliament, the RCMA was enacted. It provided that women in customary marriage enjoyed equal legal status and capacityFootnote ³⁵ (thus abolishing their former minority status), and stipulated the essential requirements for a valid marriage,Footnote ³⁶ but left the manner in which a particular customary marriage was celebrated undefined, leaving space for differences and evolution in cultural practice.Footnote ³⁷ Two important, but contested, provisions concerned the imposition of a default proprietary regime of ‘in community of property’ rather than the customary practice that resembled separate marital property;Footnote ³⁸ and the removal of divorce jurisdiction from traditional leaders' courts to state courts.Footnote ³⁹ Both of these were effected to enhance the protection of women (SALRC, 1998, s. 6.3.4). Both were opposed by some traditional leaders as ‘unAfrican’ (SALRC, 1998, ss. 1.4.3–4, 5.1.8), as was the idea of equality of women and men in marriage (Mbatha, Reference Mbatha2006).

Contrary to international gender norms, and despite an initial call by the Rural Women's Movement to outlaw the practice (Albertyn and Mbatha, Reference Albertyn, Mbatha, Valk, Cummings and van Dam2004), the Act permitted polygyny. Although contested, feminist lawyers and rural women justified its inclusion to provide rights to women and children in polygynous families (Albertyn et al., Reference Albertyn, Goldblatt, Hassim, Mbatha and Meintjes1999, p. 104). The Act failed to require the consent of the first wife to subsequent marriages, largely because this was thought to be unenforceable (SALRC, 1998, ss. 6.1.17–6.1.25). However, it did require men to apply to court for a division of property before entering into a subsequent customary marriage, thus seeking to protect the proprietary interests of the first wife.Footnote ⁴⁰

The Act was not perfect. It achieved significant rights for women, but left marriages entered into before the Act vulnerable to old discriminatory rules (Bronstein, Reference Bronstein2000, pp. 565–67, 572–73), it did not impose consent or notice requirements upon polygynous marriages (Mbatha, Reference Mbatha2006), nor did it provide sufficient protection against the possibility of dual (civil and customary) marriages and multiple marriages outside polygyny endorsed by the Act (Pieterse, Reference Pieterse2001, pp. 383–84). While some argued for more rights, others claimed the RCMA is unworkable as it imports common law concepts into a customary system (Himonga, Reference Himonga, Murray and O'Sullivan2005).Footnote ⁴¹ Himonga (Reference Himonga, Murray and O'Sullivan2005) and Mbatha (Reference Mbatha2006, Chapter 6) suggest that more effort could have been made to codify custom rather than use civil law norms. There is also disagreement over the dual system. Pieterse suggests that a common marital law, addressing both civil and customary marriage, would have been possible and preferable, and could have overcome the racialised hierarchy of common and customary law (2001, pp. 399–400). Mbatha (Reference Mbatha2006) disagrees, arguing that a real choice between customary and civil marriage is only possible in a dual, but equal, system, although she admits that further law reform is necessary to achieve this.

The final product is the result of struggle and compromise: the very recent memory of apartheid, the concessions made to traditional leaders, and the powerful gender struggles of the early 1990s. With all its faults, the RCMA was still a significant victory for women, achieving important rights in customary marriage, removing women from the sole power of fathers, husbands and traditional structures, and recognising them as equal partners within marriage. These provisions established new norms about gender, which became the basis for future claims. It was these aspects of the new Act that were most transformative and most contested. Much of the opposition by traditional leaders concerned these ideas about the place of women and the authority of traditional leaders over marriage. Traditional leaders objected to the idea of equality and ‘condemned endeavors to liberate African women from male domination as westernization’ (Mbatha, Reference Mbatha2006; SALRC, 1998, ss. 1.4.3, 1.4.4, 5.1.8). In their mind, customary law protected women as mothers and vulnerable members of the family and community (Holomisa, Reference Holomisa, Bentley and Brookes2005).

The RCMA has been subject to ongoing struggles for improvement as women turn to the courts to secure further rights. In Gumede v. President RSA, the Court extended the application of the Act, and equal proprietary rights, to women in monogamous customary marriages entered into before the commencement of the Act.Footnote ⁴² In addition, women have challenged men who fail to follow the statutory procedure for polygynous marriage, or who enter additional customary marriages without the required court application, disclosure or consent.Footnote ⁴³ Courts have also affirmed progressive developments in customary (living) law that reflect women's position in changing socio-economic circumstances. For example, in a context of single-headed households, women may now negotiate and receive lobola;Footnote ⁴⁴ and in a cash-based economy with declining jobs, agreement on, rather than payment of, lobola, might be sufficient to conclude a marriage. Most recently, Xitsonga customary law was developed to require the consent of the first wife to a second marriage.Footnote ⁴⁵

4.3 Ongoing processes of struggle

South African marriage law has been overwhelmingly Eurocentric. While the best legal form for recognising cultural difference remains contested, the current legislative choice is a plural system and the present law reflects what was possible in harmonising customary law and the Constitution. As time passes, and as problems in the law become apparent, women have turned to the courts to resolve these, and further law reform has been mooted by the SALRC (SALRC, 2011). If this happens, it is likely to generate further struggles over the meaning of custom and culture, and women's rights, as well as conflicts over the place of women and the prerogatives of men. Unlike the 1990s, these debates might well take place in a context where the balance of power between the women's rights lobby and traditional authorities has shifted (Claassens, Reference Claassens2011). While the Constitution might provide an ultimate guarantee, and precedent remains in favour of gender equality claims, contestation is likely around the power to define custom, as well as its content in law reform. Ensuring women's voice and participation will be critical to these future struggles.

5.1 A different context?

Customary law and religious law, in the form of Muslim personal law, demonstrate similarities and differences in South Africa. Marriage laws under both systems were against public policy under colonial and apartheid rule, as both marriages were potentially polygynous. However, unlike customary law, Muslim personal law operated completely beyond the bounds of the state, in the private sphere, subject to religious authorities. Islam arrived in South Africa in the seventeenth century, as Dutch and British colonialists brought slaves, political prisoners and convicts from Southern Asia, and later indentured labourers from India, to South Africa. These groups formed the basis of South Africa's diverse Muslim community and largest minority religion (Moosa, Reference Moosa1996, p. 131). Over time, the leaders of mosques began to establish their authority and settle matters related to marriage, divorce and succession. By the twentieth century, the Muslim clergy (the ulama) were organised into judicial and religious councils with exclusive control over privatised Muslim law (Moosa, Reference Moosa1996 pp. 132–34).

South Africa's Muslim community, while small at about 654,000 people or 1.2 per cent of the population,Footnote ⁴⁶ is nevertheless culturally, religiously and politically diverse (Moosa, Reference Moosa1996, pp. 130–31). Although the broader IndianFootnote ⁴⁷ community is relatively well off in socio-economic terms (and second to White South Africans), there are inequalities within this group, and Muslims within the coloured group, especially women, are particularly disadvantaged.Footnote ⁴⁸

While customary unions were legally, if unequally, recognised, Muslim marriages enjoyed no legal recognition.Footnote ⁴⁹ Married couples could only enjoy rights and recognition associated with marriage if they entered into common law marriages, which many did (Manjoo, Reference Manjoo2007, p. 23). The absence of recognition meant that fathers were not guardians of their children; children were stigmatised as illegitimate and parents as unmarried; and women were not able to secure common law benefits of maintenance and inheritance upon the dissolution of the marriage by death or divorce, nor were they able to enforce proprietary benefits recognised under Muslim family law (Amien, Reference Amien2010, p. 363). This, together with unregulated polygyny, meant that the non-recognition of Muslim marriage impacted disproportionately on women, often with material consequences.

As with customary law, Muslim personal law is a product of colonialism, as religious leaders developed interpretations of religious sources in areas of personal status tolerated by colonial rulers (divorce, marriage and inheritance). Also, like customary law, the nature of Muslim personal law is contested. On the one hand, scholars agree that different interpretations of Muslim personal law ‘reflect the ideology of society's dominant group as well as the existing power structure’Footnote ⁵⁰ and ultimately constitute a ‘flexible and dynamic law that meets social changes’ (Moosa, Reference Moosa1996, p. 140). In South Africa, this accommodates more progressive views that seek to foster gender equality and progressive social ideals within and outside Islam (p. 149). On the other hand, conservative religious leaders and traditionalists advocate a more inflexible and immutable system of religious law, separated from social life, and ‘primarily committed to preserving patriarchal structures of social organisation … articulated in the language of religious exclusivism’ (p. 140).

These divides are complex as they cut across different ideas of individual and group identity, especially between a closed-off notion of group identity versus a more fluid post-modern notion of intersecting identities where Islam is one aspect of identity. Moosa warns that group identity is complicated in post-apartheid South Africa:

In this context, Muslim personal law becomes a ‘bulwark of identity against the threat of cultural assimilation’ (Moosa, Reference Moosa1996, p. 147). The possibilities of progressive law reform, simultaneously preserving the identity of a minority (and sometimes defensive) group and addressing problems of gender equality, are thus politically constrained. Unlike the process of customary law reform, which represented a different balance of forces, sensitivities over ‘foreign’ values are inevitably deeper. Unlike the manner in which customary law reform became linked to national constitutional struggles over tradition and gender, Muslim law reform is more ‘closed off’, primarily linked to group claims for recognition, and, second, to internal struggles of interpretation. There is, accordingly, less space for participation by a broader women's movement.

Although there were several calls by progressive academics for the recognition of Muslim marriages under the Constitution in the early 1990s (Cachalia, Reference Cachalia1993; Sachs, Reference Sachs1992), law reform only commenced in 1999 in the SALRC, culminating in a report and draft bill in 2003. Ten years later, in 2013, no law has been passed. In the absence of protection through law reform, women have turned to courts to secure civil rights to maintenance, property and inheritance that were absent, or unenforceable, under Muslim personal law.

5.2 Securing rights in courts

As noted above, the lack of legal recognition of Muslim marriages affected women particularly seriously. Denied recourse to law, many were left economically disadvantaged or destitute at the dissolution of their marriages by divorce or death. With the advent of the new constitutional dispensation, women approached the courts to secure and enforce rights based in Muslim personal law, common law, statute and the Constitution. These cases resulted in a limited recognition of Muslim marriages and the extension of certain statutory rights of inheritance to widows.

In Ryland v. Edros,Footnote ⁵¹ the Cape High Court overturned pre-democratic precedent to hold that contractual obligations arising from a de facto monogamous Muslim marriage, including the duty of a husband to maintain his wife, were enforceable in law. This was followed by Amod v. Multilateral Motor Vehicle Accident Fund (Commission for Gender Equality Intervening),Footnote ⁵² in which a widow of a Muslim marriage sought to make a dependent's claim after the death of her husband in a car accident. The Supreme Court of Appeal found that a Muslim marriage gave rise to a legal duty of support, and consequently developed the dependent's claim under common law to include a claim by a dependent spouse in a marriage concluded according to the tenets of a recognised faith.Footnote ⁵³ The finding was expressly limited to de facto monogamous marriages.Footnote ⁵⁴

Two cases in the Constitutional Court addressed women's lack of proprietary rights upon the death of their spouse. Daniels v. Campbell Footnote ⁵⁵ typified the plight of many women caught between two systems of law. At the heart of this dispute was a council house in which the applicant and her husband had resided, and which he had subsequently purchased while she contributed to the bond and maintenance. After her husband's death, Juleiga Daniels claimed inheritance and maintenance under the Intestate Succession Act 81 of 1987 and Maintenance of Surviving Spouses Act 27 of 1990. Her claims were rejected, as her religious marriage did not qualify her as a ‘surviving spouse’ for the purpose of the Acts. (Effectively, in the eyes of the state, her husband had died ‘unmarried’.) She was also excluded from claiming benefits under Muslim personal law, because such law was neither recognised nor enforceable in the courts. Unless Mrs Daniels could convince the Constitutional Court to recognise her claim, she would be evicted from her home and left destitute. The Court concluded that the purpose of the Acts was to protect widows from destitution and this should extend to widows of Muslim marriages.Footnote ⁵⁶ The word ‘spouse’ in both Acts should be interpreted broadly, in line with constitutional values of equality, tolerance and respect for diversity, to include persons married according to Muslim rites.Footnote ⁵⁷ Any other interpretation would result in a violation of widows' rights to equality in relation to marital status, religion and culture, and dignity.Footnote ⁵⁸

Daniels v. Campbell was expressly limited to de facto monogamous marriages. In Hassam v. Jacobs,Footnote ⁵⁹ the Constitutional Court faced a claim by a widow of a polygynous marriage.Footnote ⁶⁰ Mrs Hassam, the first of two wives of the deceased, challenged the Intestate Succession Act as discriminating unfairly on the basis of gender, marital status and religion insofar as it excluded widows in polygynous Muslim marriages from the protection of the Act.

The Court distanced itself from the question of the ‘constitutional validity of polygynous marriages entered into in accordance with Muslim rites’, noting that the ‘judgment does not purport to incorporate any aspect of Sharia law into South African law’.Footnote ⁶¹ However, it concluded that the exclusion of widows of a polygynous marriage was unfair discrimination, especially because it ‘cause[s] widows significant and material disadvantage’, ‘reinforces a pattern of stereotyping and patriarchal practices that relegates women in these marriages to being unworthy of protection’, and unjustly denigrates marriage according to religious rites.Footnote ⁶² Regardless of the constitutionality of polygynous marriages, ‘it could not result in refusing appropriate protection to those women who are parties to such marriages. Such a result would be to lose sight of a key message of our Constitution: each person is of equal worth and must be treated accordingly.’Footnote ⁶³

In each case the Court addresses the precarious situation of women unable to enforce rights to maintenance or property. But it refrains from engaging the content of religious law, and religious groups refrain from entering the cases, as amicus curiae, to raise questions of religious law. Unlike the interventions by traditional leaders and rural women's groups in customary law cases, participation by religious groups in cases concerning Muslim marriage is rare. This allows the Court to steer a course that focuses on:

Although the Court has avoided direct engagement with Muslim law, these judgments are relevant insofar as they set standards of legal protection that would be difficult to undermine, even if differently conceived, within Muslim personal law. While the Court clearly implies that any recognition of Muslim law would be subject to the Constitution, the question of the application of the Constitution to religious law – outside a recognition statute – remains untested and unknown.

5.3 Law reform

Law reform on Muslim marriage started in the SALRC, which engaged in an extensive consultation process that included written submissions and meetings with organisations representing different sections of the Muslim community. The process was steered by a project committee of Muslim academics, judges and clergy (SALRC, 1999; 2003). The final report was published in July 2003, together with a draft bill for a ‘Muslim Marriages Act’. Unlike the process on customary law reform, the SALRC initially prioritised consultation with male religious leaders, or ulama (as sole interpreters of religious texts), over community and women's organisations. It was only after concerted advocacy by Muslim women's groups that women's views were actively included (Amien, Reference Amien2010, p. 374), although by that stage the trend towards codification of Muslim personal law had been set (Manjoo, Reference Manjoo2007, p. 21). The SALRC Bill, as amended by the Department of Justice, was published as the Muslim Marriage Bill for public comment in 2011.Footnote ⁶⁵

The Bill recognises Muslim marriage and regulates its consequences. It provides legal certainty and rights to partners in Muslim marriages, with due regard for Islamic law and constitutional rights and principles. The Bill addresses the requirements for, and registration and dissolution of, marriage, as well as proprietary arrangements, spousal and child maintenance, and custody of and access to children. Unlike the RCMA, which was criticised for an overreliance on common law concepts, the Muslim Marriages Bill includes Muslim practices and Sharia requirements.

For example, in relation to equal capacity and status of spouses, Clause 3 provides that a ‘husband and wife are equal in human dignity and both have, on a basis of equality, full status, capacity and financial independence’. The inclusion of ‘dignity’ shifts the meaning of the spousal relationship away from an emphasis in equality (seen to be a Eurocentric concept) (SALRC, 2003). In setting out the requirements for a valid Muslim marriage, Clause 5 requires consent of both parties (thus dispensing with marriage by proxy where consent was not required),Footnote ⁶⁶ sets the minimum marriage age at eighteen (against the submissions of some ulama that it be set at age of ‘maturity’),Footnote ⁶⁷ and requires witnesses and marriage formulae in accordance with Islamic law. The Bill provides for divorce ‘on any ground or basis permitted by Islamic law’. Both women and men may initiate divorce. The inclusion of the ground of marital discord, or shiqaq, similar to the civil law requirement of ‘irretrievable breakdown of marriage’, secured the agreement of women's groups to this clause.Footnote ⁶⁸ The Bill retains the husband's right to unilateral divorce in the talaq, but seeks to prevent abuse by requiring an irrevocable talaq to be subject to registration with a marriage officer and proceedings in court for a legal dissolution.Footnote ⁶⁹ Spousal maintenance during the marriage is provided for in terms of defined Islamic principles, to be enforced through the ordinary Maintenance Courts.Footnote ⁷⁰ These include general rules of maintaining a wife during the marriage and children until majority or self-supporting. Upon divorce, the Act does not specify what happens after the three-month customary waiting period, or iddah, of obligatory maintenance, a significant problem for women.Footnote ⁷¹ Polygyny is permitted subject to similar requirements to those in the RCMA: a husband must apply to court for approval of the marriage and a written contract regulating the future matrimonial property regime. The court is required to grant approval if the husband is able ‘to maintain equality between his spouses as is prescribed in the Holy Qur'an’.Footnote ⁷² There is no consent requirement, but both existing and prospective spouses must be joined in the proceedings.Footnote ⁷³

The Bill seeks to improve the situation of women in Muslim marriages, especially in relation to consent and the minimum marriageable age; the ability to initiate divorce on a range of grounds and to have this enforced in courts; the regulation of polygyny; and provisions for the maintenance of wives and children. In each instance, principles of Islamic law that are supportive of the equality and protection of women are incorporated into the legislation, although these are not necessarily supported by all schools of Islam in South Africa.

The Bill brings Muslim marriages under state, rather than private, regulation. It is anticipated that ulama will be appointed as marriage officers,Footnote ⁷⁴ responsible for the registration of marriages and talaq. The Minister may delegate the power to consent to marriages of minors to ‘any Muslim person or Muslim body’.Footnote ⁷⁵ However, divorce, the regulation of polygyny, maintenance issues, and custody of, and access to, children are all subject to the courts, that will apply the incorporated principles of Muslim personal law together with more general legal principles. The power to interpret religious law has been a cause of great concern. Thus, previous versions of the Bill had made provision for judges of Muslim faith to preside over such cases, assisted by assessors schooled in Muslim theology. However, these provisions have been removed from the Bill, meaning that the ordinary courts will be responsible for interpreting and applying the Act. Muslim family law experts can be used as assessors under existing law.Footnote ⁷⁶

Perhaps the most controversial aspect of the Bill is that its application is made subject to the choice of parties to the marriage. This compromise, between a majority which supported the codification approach of the SALRC and a minority which opposed it, is discussed in the next section.

5.4 Compromise in a contested process