SIGN THE PETITION TO
RESPECT ALL CUSTOMARY LAW MARRIAGES: https://awethu.amandla.mobi/petitions/respect-all-customary-law-marriages-in-south-africa
In a judgement handed down on Tuesday 2 August 2016, the Limpopo High Court ruled that women in polygynous marriages have equal rights and that the Customary Marriages Act discriminates against these women. The Court drew on the submissions made by the Women’s Legal Centre and appreciated the valuable contribution made by the centre in terms of the detail and research contained in its submission. The premise of the submission was for better protection for women in these marriages.
Are mehr and sindoor equal to lobola and wedding rings?
Shabnam Palesa Mohamed
The joyous celebration of Women’s Day this year rang somewhat hollow for me. In headlines over the last few weeks were cases involving Fatima Gabie Hassam of Cape Town and Soloshinie Govender of Durban . Both involve complex situations where their husbands died intestate. Because they were married according to customary law only, these women were not considered legal spouses and therefore could not claim from the estate, leaving them penniless and destitute.
Whilst Hassam was successful in her groundbreaking case, with Judge Dennis van Reenen ruling that to disallow her from benefitting from her late husband’s estate would amount to unfair discrimination; Govender’s case against her father in law, Narainsamy Ragavayah, is still to be decided in October this year.
Three burning issues concern me. How much of Govender’s father in law’s refusal to allow her to benefit is based on pure patriarchy, how successful have community leaders been in advancing the cause for the recognition of customary law marriages and why didn’t Judge van Reenen make the landmark recommendation that the Constitutional Court consider the Hassam ruling to apply retrospectively to women who did not have the benefit of Hassam’s legal battle?
Notwithstanding the fact that it was common understanding that the surviving spouse would inherit the estate, Ragavayah has been quoted as saying that he didn’t believe Govender should benefit from the estate because she was just “a housewife who ran a few errands”. Although already contradicting himself, Ragavayah refuses to recognise the marriage, even though the religious ceremony happened in his presence. Because Govender allegedly couldn’t bear children, Ragavayah offered to let her keep her wedding jewelry and household effects, “out of compassion and not any legal obligation”.
This callous rationalisation for depriving her of the estate which she helped build, amounts to the fact that Ragavayah considers the role of a housewife to be anything but substantial. Not only that, but because Govender couldn’t have children, in his mind, she was not worthy of benefitting from the estate. Preposterous and patriarchal arguments (sic).
Existing South African law does not recognize Muslim and Hindu marriages, leave alone those that are polygenous; as it does African traditional law marriages. While I agree with Hassam’s attorney Igshaan Higgins that it is imperative that Muslim law be codified (as Hindu law should be), I don’t believe that our South African Constitution (which speaks of the right not to be unfairly discriminated against based on marital status) righteously accommodates the needs of our diverse people.
Where should we attribute the blame for this outrageous stagnation? It is common cause that the heads of most communities are in fact male. Over the years, have they fought hard enough to ensure that customary law marriages are equally recognized? My opinion is a foregone conclusion but the question that remains is, why not? While many husbands who convince their wives not to be registered according to South African law cite ‘business reasons’; surely our leaders understand why it is imperative to advance the rights of women by engaging tirelessly with this issue? Currently, Hassam’s pro bono legal team has achieved far more for women’s right to dignity than leaders tasked with such an important responsibility. In my opinion, so too will Govender.
The Maintenance of Surviving Spouses Act and the Intestate Succession Act have both been referred to the Constitutional Court for the relevant amendments to be made by the legislature. However, bearing in mind that it took four years before a ruling was made on the Daniels case (where a monogamous Muslim marriage was recognised for succession purposes); who knows how long it will take for these critical changes to be made?
More importantly, what is the effect for the thousands of women who did not successfully challenge estate executors prior to the Hassam ruling? While they may be happy for Hassam and hopeful for Govender, the van Reenen ruling does nothing to relieve the plight brought upon directly by patriarchal practices, a nonchalant judiciary and complacent leaders.
While it is clear that the campaign to recognise religious personal law must be stepped up drastically, prospective litigants and society generally must now realize the importance of drawing up wills and marriage contracts. The dissolution of marriage is not a subject to be taken lightly, however, since it is in fact women and children who are most adversely affected in terms of property rights; government and community leaders need to give credibility to the many glorious speeches that they rolled out this Women’s Day.
Fatima Seedat and Dr K Goonam led a march of 20 000 fiery women activists to the Union Buildings to protest against those discriminatory pass laws. It is high time that Muslim and Hindu women, all women and all men in fact, marched. This time, it must be to protest against the injustice of a discriminatory South African legal system. Despite the rights enshrined in our Constitution, there can be no equality until there is both gender and religious equality.
Also Read: http://www.polity.org.za/article/official-customary-law-and-the-disruption-of-patriarchal-power-the-case-of-msinga-2013-09-26