The Limpopo High Court in Thohoyandou recently declared invalid, a section of the Recognition of Customary Marriages Act (Customary Marriages Act) regulating the proprietary consequences of polygamous marriages concluded before the Customary Marriages Act came into effect on 15 November 2000. The section in question precluded women in customary marriages from both owning and controlling property on an equal basis with their spouses. Essentially, the provision meant that such customary marriages were regulated out of community of property, while marriages concluded after the Customary Marriages Act came into effect are in community of property. The same Court noted that the individuals most likely to be negatively affected by the impugned provision were likely to be older women. Without secure property rights this class of women would be subject to immense suffering. As such, the law infringed upon their rights to equality and dignity and discriminated unfairly against women in polygamous marriages.
Another troubling incident involved news reports about the uThukela Municipality’s establishment of “Maiden Bursaries”. It took the Commission on Gender Equality (CGE) to declare the bursary scheme, awarded to 16 young women, conditioned upon their remaining as virgins for the duration of their studies, unconstitutional. The CGE further added that “[a]ny funding by an organ of state based on a woman’s sexuality perpetuates patriarchy and inequality in South Africa.” Perhaps the real concern is the fact that virginity testing, an ancient practice rooted in many customary traditions, continues to be practiced across many societies, particularly in KwaZulu-Natal. Arguably, regardless of the purported reasons for its merit, the wholesale disregard for bodily autonomy of young women should not have a place within a constitutional democracy.
It is also of concern that marriages concluded under Islamic laws do not enjoy formal recognition by the law. This means that individuals in such unions do not enjoy the rights afforded to other spouses married according to the country’s civil laws. While both the courts and the State have taken meaningful steps in terms of recognising such marriages, the reality is that couples who elect to marry in accordance with Islamic law can only be afforded the full protection of the law with regard to spouses if they, in addition to the Islamic law marriage, register a civil marriage. This reflects a dissonance between the right to religious and cultural rights on the one hand and the right to equality on the other hand. It is high time that the Muslim Marriages Bill was passed by Parliament in order to afford spouses married under Islamic law, the same rights enjoyed by those married under civil laws.
Since the South African Law Reform Commission’s 1999 discussion paper on traditional courts and the judicial function of traditional leaders, the idea of legislation regulating traditional courts has remained topical. There have been two attempts, one in 2008 and another in 2012, to introduce a Traditional Courts Bill. On both occasions, the Bill was allowed to lapse in Parliament following charges that some of its provisions were unconstitutional. In particular, as women’s rights groups and other organisations pointed out, women in traditional courts were not allowed to speak or represent themselves but had to rely on male relatives to represent them. This puts women at a serious disadvantage particularly in cases arising from disputes with male relatives or where they have no adult male relatives available to represent them. Linked to this was the fact that presiding officers would be drawn from those of royal blood, and yet in most communities, traditional leaders are men. The Minister of Justice and Correctional Services is on record as stating that a reworked version will be introduced to Parliament in the course of the year and it remains to be seen how it will further the rights and interests of women living under the jurisdiction of traditional leaders.
Ultimately, the question remains – how can cultural and religious practices be best aligned to the Constitution without placing too heavy a burden on individuals and communities conducting such practices? It is true that there have been, since 1994, advancements made in the achievement of women’s rights but it is also true that these advancements are conditioned on factors such as geographical location, socio-economic circumstances, race as well as culture and religion. This places urban South African women at a distinct advantage over their rural counterparts when it comes to enjoying human rights. This polarity needs to be addressed through enacting laws which properly balance the rights to equality, dignity, culture and religion.
By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights