Sexual and Gender-Based Violence (SGBV) remains a deeply-rooted and unchanging public policy problem in South Africa. Various reports suggest that 40 to 50 percent of women in South Africa have been physically or sexually abused either by their intimate partners or by non-partners. Many of the SGBV cases go unreported because these crimes have become a largely normalised and embedded way of asserting and reasserting male dominance and masculinity in the homes and wider society.
As a result of the alarming prevalence of SGBV in the country, the government of South Africa has ratified numerous international legal frameworks in order to show commitment to eliminating such crimes. In 1995, South Africa ratified the Convention on the Elimination of all forms of Discrimination against Women. In 2004, South Africa ratified the Protocol on the Rights of Women in Africa – another instrument which seeks to protect women’s rights. In addition to this, the government of South Africa has enacted domestic legislation and implemented policies to deal with SGBV. Examples of such policy frameworks include: the national Constitution of 1996, Domestic Violence Act No. 116 of 1998, Recognition of Customary Marriage Act 120 of 1998 and the Sexual Offences and Related Matters Act No. 2 of 2012.
Notwithstanding these policy efforts toward eradicating SGBV practices, this article emphasises that SGBV is often caused by multiple interrelated factors, including economic, cultural, community, legal, religious and social considerations. For our purposes, in Muslim communities in South Africa, the interplay between Islamic law and South African law often causes complex difficulties, especially with regard to discrepancies in understandings of gender roles, SGBV, marriage and divorce. In cases of SGBV, Muslim women in South Africa are often confined to silence as a result of structural and cultural norms within the Islamic community which often prevent them from prosecuting and/or obtaining a divorce. Furthermore, many Muslim women are faced with the reality that their marriage is not formally-recognised in South Africa, and therefore their legal protections are limited- they often find themselves trapped in an abusive relationship with no ability to leave.
Thus, Muslim women in South Africa do not enjoy the same legal protection and privileges enjoyed by their counterparts in customary and civil unions. This is mainly because the government of South Africa has not been able to introduce legislation which recognises Muslim marriages, whether monogamous or polygamous. If such legislation were to be enacted, the legal instrument would ensure that Muslim women enjoy the full benefits and protections of the law, as they would be on an equal-footing to civil marriages.
This non-recognition of Muslim marriages has had far-reaching consequences for Muslim women. Many of the rights which are enjoyed by most women in South Africa are often not enjoyed by Muslim women. Such rights include the right to inherit property or to claim maintenance from a deceased husband’s estate. Additionally, they often cannot take their grievances to court. A number of cases have been submitted to the South African courts in an attempt to ensure the recognition of Muslim marriages and to also ensure that the challenges encountered by Muslim women are addressed. However, the courts have steadfastly refused to recognise such marriages. They continue to point out that Muslim marriages do not comply fully with the provisions of the Marriages Act No. 25 of 1961 which regulates and sets out the requirements for a valid marriage. Also, the Recognition of Customary Marriages Act 120 of 1998 was passed to govern African traditional marriages, yet spouses in Muslim marriages are still not formally-recognised. Ironically, the Constitution of South Africa of 1996 states that all South African citizens should enjoy equal protection from the law but this does not seem to apply to many Muslims. Muslim women thus remain on the margins of legal protection.
This failure to legislate Muslim marriages within the South African law further means that spouses who have entered marriage contracts under the provisions of Shari’ah law cannot approach a court of law for a decree of divorce in South Africa- even though they may have compelling reasons for doing so. Presently, the dissolution of marriages in Muslim communities is completed by religious priests or cultural tribunals. Notably, these settings are usually dominated and facilitated by men and may be open to bias. In theory, any refusal to recognise a Muslim woman’s marriage and thus her capacity to obtain a divorce is discrimination on the grounds of ‘religion’, in line with Section 9(3) of the 1996 South African Constitution.
The most pressing challenge and blind-spot is acknowledging that South Africa is a multicultural society with many religious and ethnic groups, including: Christian, Hindu, Jewish, African and Muslims. Each of these groups has their own legal code or customary rules/norms for their religious followers. Confronting multiculturalism in South Africa remains limited and courts often cannot handle disputes which arise between minority groups such as Muslims when they seek legal redress.
The only way in which the dilemma faced by Muslim women in South Africa could possibly be resolved is by enacting legislation which will ensure the recognition of Muslim marriages. Such recognition would ensure protection of the rights of Muslim women. In 1996, the South African Law Reform Commission (SALRC) pushed for the recognition of Muslim marriages. This was followed by the drafting of a Muslim Marriage Bill which outlined provisions which dealt with the requirements of a valid Muslim marriage such as, proprietary consequences, registration of the marriage, dissolution of the marriage, issues pertaining to custody and the relative status of the spouses. However, there have been setbacks with processing and pushing forward this legislation as some Muslims, especially the religious leaders, believe that the bill is un-Islamic.
In light of the above analysis, failure to recognise the vulnerability and marginalisation of Muslim women remains one of the largest criticisms of the current policy framework in South Africa. This paper highlights that, as citizens of South Africa, Muslim women should be able to access and enjoy their fundamental rights which are embedded in the Constitution of the Republic of South Africa (1996).
At this point, a way forward could be the facilitation of a process which would allow Muslim women who are affected by the existing legal limbo to act as active agents of change in their respective communities in order to advocate for legal reform. This would center on empowering local Muslim communities, especially women, to make informed and meaningful contributions to the process of either enacting the aforementioned Bill, lobbying the government of South Africa to develop a new legislative framework or to amend existing legislation in order to ensure that Muslim women are protected both within their marriages and upon dissolution.
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