South Africa is a secular, liberal, 26-year-old democracy with an estimated population of just under 59 million, of which Muslims constitute approximately one million. Islam came to South Africa in various phases. Slaves and political exiles were brought to the Cape in the middle of the 16th Century until the middle of the 19th century by the Dutch East India Company from their colonies in East and West Africa, South India, Ceylon, and the Malaysian Archipelago. The Cape Muslims comprise approximately 45 percent of the Muslim population in South Africa.
In a second phase in the mid-19th century, Indian Muslims were brought to South Africa by the British as indentured labourers and others as “passenger” Indians, who were mainly traders.
In the late 19th century several hundred slaves from East Africa were brought into South Africa as indentured laborers for the public works. The majority were Muslim, known as the “Zanzibaris”. In the early 20th century migrants from Malawi and Mozambique, many of whom were MuslimMaraisburg Muslim Jamaat webpage, 2010. “History of Muslims in South Africa” 23 October 2010. Accessed 12 January 2022, came to seek employment in the mines. Approximately 10-15 percent of Muslims are of mainly African origin. This number is currently increasing and not always documented, and due to an influx of economic migrants and refugees from East and West Africa.
Information About Muslim Family Laws And/or Practices In South Africa
Laws Governing Muslim Marriages
South Africa recognises civil, customary, and same – sex marriages. It does not recognise all religious marriages- including Muslim marriages, and so these happen alongside or independently of civil marriages.outh Africa State party report, U.N. Doc. CEDAW/C/ZAF/1 (1998), pp. 104-105, South Africa State party report, U.N. Doc. CEDAW/C/ZAF/3-4 (2010), para. 16.1, http://www.ohchr.org/en/hrbodies/cedaw/pages/cedawindex.aspx. Accessed 10 November 2021 The main codified laws that govern civil marriages are the MarriageMarriage Act (1961), http://www.gov.za/sites/www.gov.za/files/Act%2025%20of%201961.pdf and DivorceDivorce Act (1979), http://www.justice.gov.za/legislation/acts/1979-070.pdf Acts.
Based on Section 3 of the Marriage Act, Muslim couples who intend for their marriage to be a monogamous one may enter into a parallel civil marriage at the same time as they contract their marriage based on Muslim rites.Hoodah Abrahams-Fayker, “Affidavit”, Women’s Legal Center Trust v. President of the Republic of South Africa, paras. 77-78 Muslim Family Law is practiced in unofficial forums but not recognised or regulated by the state. Both Muslim spouses in South Africa may stipulate any legitimate condition in their Islamic marriage contract. Similarly, both Muslim spouses in South Africa may stipulate any legitimate condition in their civil marriage contract provided it is not contra bono mores.
Often, the full list of valid conditions as provided by fiqh is not presented by most male Muslim marriage officers to the couple, thereby limiting choice of stipulations. Religious scholars and Muslim judicial bodies dissuade couples from clauses that upset the relationship of male qiwama over female partners.
Equality in Marriage
The South African Marriages act treats men and women as equal partners, but in practice because Muslims only marry through nikah and do not enter in civil marriages due to first a lack of adequate legislation, second a lack of adequate knowledge about fiqh-based entry and exit options, and third, rigid ulama resistance to civil marriages, Muslim women have very little agency in entering and exiting nikahs.Ismail, Farhana. 2018. The MPL Network: Centering Women’s Experiences of Islamic Law. Daily Vox, 17 April. Available: https://www.thedailyvox.co.za/the-mpl-network-centering-womens-experiences-of-islamic-law-farhana-ismail/ .accessed 21 November 2021
Minimum Age of Marriage
Although the minimum legal age for marriage is 18 as per South African law,South Africa State party report, U.N. Doc. CEDAW/C/ZAF/3-4 (2010), para. 16.20, http://www.ohchr.org/en/hrbodies/cedaw/pages/cedawindex.aspx South African Muslim clerics may permit marriages of persons below 18. As Muslim marriages are not legally recognised, such under-aged Muslim marriages are not officially recorded.Information obtained from South African advocate, May 2017; Legal Resource Centre, “Submission made in respect of child, early and forced marriage”, Submission to the UN Office of the High Commissioner on Human Rights (OHCHR), 2013, pp. 7-8, http://www.ohchr.org/Documents/Issues/Women/WRGS/ForcedMarriage/NGO/LegalResourceCentre.pdf The Recognition of Customary Marriages Act allows for child marriage with the consent of parents and this could easily be extended to other customary/ religious marriages if the legislation exists.
When married through nikah and in civil law, Muslim wives are able to obtain a civil divorce through the Divorce Act, but concurrently obtaining a talaq either from the husband or through the Muslim judicial bodies proves difficult. Whether married in both systems or just in the religious system, Muslim wives struggle to be free of their nikahs.Ismail, Farhana. 2018. The MPL Network: Centering Women’s Experiences of Islamic Law. Daily Vox, 17 April. Available: https://www.thedailyvox.co.za/the-mpl-network-centering-womens-experiences-of-islamic-law-farhana-ismail/ .accessed 21 November 2021
When couples enter into the parallel system of marriage, ulama who are registered marriage officers will not allow alternative property regimes thus diminishing women’s legal capacity in relation to marital property at divorce. The power afforded to religious judicial bodies by the State legitimises discriminatory religious marriage practices.Seedat, Fatima. 2019. ‘Intersections and Assemblages: South African’s Negotiating Privilege and Marginality through Freedom of Religion and Sexual Difference’ in Forster, Dion., Gerle, Elisabeth. and Gunner, Goran. ed. Freedom of Religion at Stake: Competing Claims among Faith Traditions, States, and Persons. Oregon: Pickwick Publishers. 199-220.
Muslim women are not treated equally to other South African women in civil divorce proceedings. If a Muslim woman is intent on the material benefits that ordinarily accrue through marriage (or access to the marital property which the couple had worked for collectively) she is first compelled to launch an application in the High Court for legal recognition of her Muslim marriage through nikah. This is a costly process and places severe hardships on Muslim women and children.MPL Network, South Africa, CEDAW Shadow Report, 18- 21 November 2021, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/SessionDetails1.aspx?SessionID=2489&Lang=en. Accessed 29 November 2021
Positive Feature(s) Under Muslim Family Law
Even in the absence of a civil law marriage, because children of unmarried parents have a right to maintenance from both parents, women in Muslim marriages can claim child maintenance from their children’s fathers. Spouses in Muslim marriages may approach the Courts to claim child maintenance and to action court orders for the same.
Because the South African Constitution establishes gender and sexual equality, a lack of codification can also work to the advantage of women. This can be seen in the work of the MPL Network which is focused on empowering women as wives, as they enter into nikah, attempt to exit or deal with the effects of having previously exited a nikah. The network has focused on negotiated, personalised nikah contracts and facilitated khula pronouncements when women choose to pronounce khula and exit a nikah.
Administration Of And Access To Justice On Marriage And Family Matters
The South African superior courts have a general jurisdiction over civil and criminal matters including divorce and family matters. At the lower court level there are designated divorce , maintenance and children’s courts.Catto, Amanda.“Family Law in South Africa: Overview.” https://uk.practicallaw.thomsonreuters.com/Document/I63cd7e63e68b11e398db8b09b4f043e0/View/FullText.html?contextData=(sc.Default)&transitionType=Default&firstPage=tr . Accessed 28 November 2021 South Africa has clear processes stipulated for divorce, mediation, proprietary consequences, maintenance and child custody.“South Africa: Family Laws and Regulations 2022.” ICLG.com, 25 August.2021 https://uk.practicallaw.thomsonreuters.com/Document/I63cd7e63e68b11e398db8b09b4f043e0/View/FullText.html?contextData=(sc.Default)&transitionType=Default&firstPage=tr
The challenges experienced by other South African women in the courts are also experienced by Muslim women. Court processes are too expensive, too intricate, formal and lengthy.Payne, Julien. “Family Conflict Management and Family Dispute Resolution on Marriage Breakdown and Divorce: Diverse Options.” Revue générale de droit 30.4 (1999): 663-687 Research in the maintenance courts point to a number of shortcomings which create severe hardships for women and children within the court systems.Singh, D., K. Naidoo, and L. Mokolobate. “Coming to court for child support-the policy, the practice and reality. A case study of black women in the maintenance system at the Johannesburg Family Court [2002-2004].” Acta Criminologica: African Journal of Criminology & Victimology 17.2 (2004): 143-154; Coutts, Tamazin L. A critical analysis of the implementation of the Maintenance Act 99 of 1998: difficulties experienced by the unrepresented public in the Maintenance Court as a result of the poor implementation of the Act. Diss. 2014.
Constitutional Provisions and National Legislation
- Article 9 of the Constitution states that:Article 9 of South Africa’s Constitution (1996), https://www.constituteproject.org/constitution/South_Africa_2012.pdf?lang=en everyone is equal before the law and has the right to equal protection and benefit of the law; The State and individuals cannot discriminate against anyone on several basis, including sex and marital status. The State is permitted to take legislative or other measures to protect persons or groups disadvantaged by unfair discrimination (the Constitution does not provide for a clear definition what is fair and unfair discrimination). The Constitution provides for equality between religion, sexes, nationality, ethnicity and other groups listed in section 9(1)(a).Section 9 of the Constitution provides for the right to equality The Constitutional Court has adopted a substantive interpretation of equality.The Constitutional Court discussed substantive equality in the matters of Bhe and Others v Khayelitsha Magistrate and Others 2005 (1) SA 580 (CC) at para 50 and Daniels v Campbell and Others 2004 (5) SA 331 (CC) at para 22
- Section 15 of the Bill of Rights guarantees freedom of religion, belief and opinion, and “does not prevent legislation recognising— (i) marriages concluded under any tradition, or a system of religious, personal or family law; or (ii) systems of personal and family law under any tradition or adhered to by persons professing a particular religion.” However, it is also clear that such recognition must be consistent with the provisions of the Constitution. This means that the Constitution both enables the recognition of Muslim marriages and also requires that this meets the Constitutional provisions for equality and freedom from discrimination before the law.
Other National Laws
- Article 12 of the ConstitutionArticle 12 of South Africa’s Constitution (1996), https://www.constituteproject.org/constitution/South_Africa_2012.pdf?lang=en guarantees freedom from: all forms of violence from either public or private sources; and torture as well as cruel, inhuman and degrading treatment or punishment in any way.
- The Domestic Violence Act makes provisions for the issuing of protection orders with regard to domestic violence. Section 1 of the Act defines domestic relationship in a manner that would include relationships within a Muslim marriage, legally recognised or not.Section 4 of the Domestic Violence Act (1998), http://www.justice.gov.za/legislation/acts/1998-116.pdf Section 1 also defines ‘domestic violence’ as:
- Physical abuse;
- Sexual abuse;
- Emotional, verbal and psychological abuse;
- Economic abuse;
- Damage to property;
- Entry into the complainant’s residence without consent, where the parties do not share the same residence; or
- Any other controlling or abusive behaviour towards a complainant.
- Marital rape is criminalised in South AfricaSection 5 of the Prevention of Family Violence Act (1993), http://www.justice.gov.za/legislation/acts/1993-133.pdf; South Africa State party report, U.N. Doc. CEDAW/C/ZAF/3-4 (2010), para. 16.13, http://www.ohchr.org/en/hrbodies/cedaw/pages/cedawindex.aspx; Anne Look, “In Africa, criminalising marital rape remains controversial”, VOA, 7 November 2013 http://www.voanews.com/a/in-africa-criminalizing-marital-rape-remains-controversial/1786061.html.
Regional or International Human Rights Principles
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
South Africa is a State Party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). South Africa signed the Convention in January 1993 and ratified the Convention on 15 December 1995, without entering any reservations.Department of International Relations and Cooperation South Africa. CEDAW convention. http://www.dirco.gov.za/foreign/Multilateral/inter/treaties/discrim.htm Accessed 13 November 2021
The previous CEDAW review was on 7 Jan – 4 Feb 2011.United Nations Treaty Body Database. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/SessionDetails1.aspx?SessionID=2489&Lang=en. Accessed !3 January 2021 The most recent CEDAW review took place in November 2021, after Covid and other related delays. A CEDAW shadow report on Muslim marriages was compiled by the MPL Network in collaboration with, and supported by Musawah.
The CEDAW Committee recommendations noted the ongoing process to harmonize legislation governing all marriages in a single marriage act.
The Committee demonstrated its concern that the Recognition of Customary Marriages Act allows for child marriage with the consent of the parents, recommended that “the State Party expeditiously adopt a single marriage bill to align customary laws and practices in the field of marriage, in conformity with the Convention, including in relation to succession and inheritance and the custody of children, and to ensure that its provisions are enforceable under the jurisdiction of civil courts”.
It further recommended that the State party adopt legislation to recognize Muslim and Hindu marriages and amend without “delay, the Recognition of Customary Marriages Act to raise the minimum age of marriage to 18 years for both girls and boys without exception, and that it enforce the prohibition of child or forced marriage, particularly in rural areas and within traditional communities”.
Link to CEDAW reports that refer to Muslim family laws and practices
Link to Concluding Observations That Refer to Reform of Muslim Family Laws and Practices
- The CEDAW Committee recommended that “the State Party expeditiously adopt a single marriage bill to align customary laws and practices in the field of marriage, in conformity with the Convention, including in relation to succession and inheritance and the custody of children, and to ensure that its provisions are enforceable under the jurisdiction of civil courts”. It further recommended that the State party adopt legislation to recognize Muslim marriages. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/SessionDetails1.aspx?SessionID=2489&Lang=en
Link to Musawah’s CEDAW reports on South Africa
- MPL Network Thematic Report on South Africa, in consultation with Musawah (2021)
Any other relevant regional or international treaty or convention signed by South Africa
- South Africa has acceded to several international treaties since its democratic status. It has signed the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1994 and ratified in 2015 and has ratified the CEDAW in 1995, the African Charter on Human and People’s Rights (African Charter) in 1996, and the International Covenant on Civil and Political Rights (ICCPR) in 1998. At a regional level, the African Charter on Human and Peoples’ Rights (African Charter) sets out a duty to all States to ensure equality and dignity for all persons. Stating all persons are equal before the law; it provides for the enjoyment of rights without any distinction of race, ethnicity, sex or religion, and it guarantees freedom of conscience, profession and free practice of religion. It further protects cultural life and traditional values, and seeks to eliminate all discrimination against women as stipulated in CEDAW and other international declarations and conventions.MPL Network Appendix A Shadow Report for CEDAW 2021. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCEDAW%2fNGO%2fZAF%2f46797&Lang=en Accessed November 2021.
- South Africa is one of fifteen nations that have ratified the Maputo Protocol, formally called the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. The Maputo Protocol was adopted by the African Union in July 2003 and came into force on 25 November 2005. The Protocol speaks to the protection of women in the context of religious marriages.Article 6 of the Protocol ensures equality in marriages and calls for the protection of all polygamous marriages. Article 7 states that “States Parties shall enact appropriate legislation to ensure that women and men enjoy the same rights in case of separation, divorce or annulment of marriage.” It further states that women should be consulted and involved in all matters regarding cultural policies.Article 17 of the Maputo Protocol. https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-rights-women-africa The Protocol is explicit that women are to be involved in matters concerning their marriages regardless of race, religion and ethnicity.
Sustainable Development Goals
- South Africa is a signatory to the UN Development goals. Gender Equality, alleviation of poverty, good health and well being and peace, justice and strong institutions are amongst the 17 identified SDG’s in South Africa. The South African State and the UN recently finalised the United Nations Sustainable Development Cooperation Framework (UNSDCF) for the years 2020- 2025. This is the first generation Cooperation Framework developed under the new guidelines released in 2019 (UNSDCF). This arose out of consultations with the private sector, civil society, academia and research institutions, women, and youth. The following principles were emphasised: host government ownership and leadership; multi-stakeholder participation and; and alignment to national priorities.United Nations South Africa Website, https://southafrica.un.org/en/sdgs, Accessed 13 December 2021
Key Resources About Muslim Family Law
By local researchers, activists and civil society groups
- The Muslim Personal Law Network (MPL Network) is a national network of diverse Muslim women bringing together academics, researchers, legal practitioners and activism combined with the real lived experiences of MPL in SA. The MPL Network centres women’s lived lived experience of MFL in South Africa by providing innovative and creative ways to deal with entry and exit options of Muslim marriage outside of the traditional informal male-centred forums. New ways of negotiating nikah marriage contracts, pre-marital counselling and women-led khula practices are being navigated and provided for by the network.https://www.facebook.com/mplnetworkSA/
- The Women’s Legal Centre (WLC) is an “African feminist legal centre that advances womxn’s rights and equality using tools such as litigation, advocacy, education, advice, research and training”. They develop law, policy, and feminist jurisprudence based on an intersectional approach with substantive equality as its foundation.https://wlce.co.za/tag/muslim-marriages/
By government agencies/committees
- The South African State embarked on extensive community consultations from 1994 to 2003 when a first draft of the Muslim Marriages Bill (MMB) was developed by the department of Justice’s Law Reform Commission (SALRC) for community comment. In 2010, after extensive revisions and consultations, the Muslim Marriages Bill (2010) was submitted to Parliament, but never tabled for deliberations.
- More recently in 2018, the State instituted a process toward a single Marriage Act for South Africa to include the registration of all religious marriages. Two options were tabled by the Department of Justice’s Law Reform Commission (SALRC)https://www.justice.gov.za/salrc/ – a Single Marriage Statute or an Omnibus Statute. In 2020, the Green Paper on Single Marriages Policy by the Department of Home Affairs (DHA) was published for comment.https://www.gov.za/sites/default/files/gcis_document/202105/44529gon398.pdf These two unrelated processes suggest limited coordination between these two departments. Currently, the SALRC published issue paper 41 on the review of aspects of matrimonial property law for public comment due on 30 January 2022.
National Groups and Campaigns Working on Muslim Family Law
- National Campaigns
- MPL Networkhttps://www.facebook.com/mplnetworkSA/ – In addition to inputs into various government marriage law reform initiatives, and its latest CEDAW shadow report (facilitated by Musawah), at a grassroots level the MPL Network has continued with it’s work in pre marital counselling and negotiated Islamic marriage contracts. More recently the Network has begun to facilitate a process which provides women with autonomy in choosing to pronounce khula and exit a nikah. The network also continues to develop strategies for estate planning that enables wives to build and preserve assets within the nikah. They have also begun to advocate for open discussions on sexuality, desire, consent and rape in nikah.Seedat, Fatima. (2022), “Trajectories and Subjects of Muslim Family Law Reform in South Africa” Journal of Islamic Studies (forthcoming)
- WLC https://wlce.co.za/tag/muslim-marriages/ – In addition to it’s strategy of impact litigation to create case law with regard to Muslim Marriages in South Africa, the Women’s Legal Centre embarked on a legal campaign in 2009 to force government to enact legislation for the recognition and regulation of Muslim Marriages. This campaign had taken 11 years to reach the apex court and the Constitutional Court had handed their judgement in 2022.https://wlce.co.za/victory-for-muslim-women-as-constitutional-court-judgment-recognises-their-right-to-equal-protection-in-marriage/
The new South African Constitution is enacted. It provides for the right to equality, dignity, freedom of religion, and the right to own property
South Africa’s first democratic election.
Recognition of Muslim Marriages Law Reform committee set up by Ministry of Justice
South African Legal Reform Commission (SALRC) forms a project Committee to investigate the possible recognition of Muslim marriages
Issue paper published on Muslim marriage recognition by the SALRC and submitted for public comment
Muslim Marriages Bill 2003 (MMB) enacted after the Draft Discussion Paper on Muslim Marriages
Recognition of Religious Marriages Bill 2005 (RRMB) drafted by the office of the South African Commission for Gender Equality.
Intended to apply to all religious marriages and was of general application.
Women’s Legal Centre (WLC) application for direct access to the Constitutional Court on the continued non-recognition of Muslim Marriages
The High Court is tasked with adjudicating the matter
MMB 2010 approved for public comment by cabinet
MMB 2010 intended to be tabled at Parliament
Bill is not tabled and appears to be shelved. A group of 28 ulama representing as many religious institutions writes to the President declaring the Bill unacceptable and the processes to recognize and regulate marriage through nikah as ‘against the shariah’.The letter is available as a booklet online, published under the name of the United Ulama council, which name is disputed between an original group of Ulama that came together under this name early in the legislation making process in 1994, and a new group that contests the first groups legitimacy, and uses the name also. The distinction between the groups is discernible in the address used by the second group located in Meyerton. https://www.asic-sa.co.za/images/books/MMBUlama%20Objection%20Letter._pdf.pdf
WLC public interest application to the High Court for the failure of the government to provide legislation recognising Muslim Marriages as valid in terms of South African law
Judgement by Western Cape (WC) High Court in the WLC matter
That the state failed in its duty to recognise Muslim Marriages. The state is ordered to enact legislation within two years, failing which provisions of the Divorce Act would apply to Muslim marriages.
The State appeals the WC High Court judgement in the Superior Court of Appeal (SCA)
Issue Paper on the Single Marriage Statute released
The SALRC Issue Paper on the Single Marriage Statute is released by the Department of Justice for public comment. The issue paper offers two possible scenarios for a Single Marriage Statute, either an omnibus statute consisting of different chapters for different marriage options or the inclusion of Muslim marriages into a single marriages act
Development of New Marriage Policy
In a separate but parallel process the Department of Home Affairs (DHA) announces the development of a new marriage policy and embarks on dialogues with various community stakeholders.
Both Marriage and Divorce Acts found unconstitutional
In the WLC matter the SCA ruled that the State had infringed its constitutional obligations and that both the Marriages Act and Divorce Act are unconstitutional for failing to include Muslim marriages. The matter is referred to the Constitutional Court
The Green Paper on Single Marriages Policy by the Department of Home Affairs) is published for public comment
The Constitutional Court hears the WLC matter
The State concedes that they are in breach of their constitutional obligations to recognize Muslim marriages but argue that they have no constitutional obligation to legislate the regulation of Muslim marriage. Judgment has been reserved in this matter.
The SALRC publishes Issue Paper 41 on the review of aspects of matrimonial property law for public comment
This raises debate about the compliance of Islamic law with shared marital property regimes. The deadline for public comment was extended to January 2022.
Constitutional Court's judgement on the WLC matter
The Court has found thathttps://wlce.co.za/victory-for-muslim-women-as-constitutional-court-judgment-recognises-their-right-to-equal-protection-in-marriage/:-
(a) The Marriages Act is inconsistent with the Constitution in as far as it fails to recognise Muslim marriages.
(b) The Divorce Act is inconsistent with the Constitution in as far as it fails to recognise Muslim marriages.
(c) The common law definition is inconsistent with the Constitution in that it fails to recognise Muslim marriages.
(d) The declaration of invalidity is suspended for 24 months to allow the state to remedy the breach by either enacting new legislation or amending existing legislation.
This country page was prepared by Farhana Ismail (MPL Network) reflecting on the work of the Muslim Personal Law Network as a collaboration under the Campaign for Justice in Muslim Family Laws.
Acknowledgements: Dr Fatima Seedat on her inputs regarding the work of the MPL network.