Hostname: page-component-586b7cd67f-t8hqh Total loading time: 0 Render date: 2024-11-25T18:57:32.438Z Has data issue: false hasContentIssue false
  • English
  • Français

Religion, custom and gender: marital law reform in South Africa

Published online by Cambridge University Press:  08 October 2013

Catherine Albertyn
Catherine Albertyn*
Affiliation:
School of Law, University of the Witwatersrand
*
[email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

This article analyses the legal processes of recognising customary and religious (Muslim) marriages in South Africa's constitutional democracy. It argues that the best interpretation of the Constitution requires laws that address cross-cutting issues of recognition and redistribution relating to religion/culture and gender, and that the best way to achieve this is through a ‘pluralistic solidarity’ that enables dialogue on how to secure cultural and religious recognition without undermining the rights of women. It examines how the different processes of cultural/religious law reform in South Africa have become sites of struggle over the meaning of collective and individual identity, public/private power, citizenship and rights, and gender and democracy, and how particular sociopolitical conditions, ideological struggles and overarching conflicts and interests have shaped each process of law reform. Thus it distinguishes between the ideal and the possible, the normative and the strategic, in law reform. It notes the conditions under which the incomplete process of recognition of Muslim marriage law has seen a greater deference to religious norms and private regulation than customary law reform, which saw a greater institutionalisation of gender equality norms. The article concludes by emphasising the open-ended nature of legal processes, the possibilities of using courts to challenge ongoing inequalities in religion and custom, and the ever-present role of politics in legal outcomes.

Type
Articles
Information
International Journal of Law in Context , Volume 9 , Special Issue 3: Complex transformations – gender, religious subjectivities and the new politics of belonging , September 2013 , pp. 386 - 410
Copyright
Copyright © Cambridge University Press 2013 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Addis, Adeno (1997) ‘On Human Diversity and the Limits of Toleration’, in Shapiro, Ian and Kymlicka, Wym (eds), Nomos XXXIX: Ethnicity and Group Rights. New York: New York Press, 112–53.Google Scholar
Albertyn, Catherine (1994) ‘Women and the Transition to Democracy in South Africa’, in Murray, Christina (ed.), Gender and the New South African Legal Order. Cape Town: Juta and Co, 39–63.Google Scholar
Albertyn, Catherine (2007) ‘Substantive Equality and Transformation in South Africa’, South African Journal on Human Rights 23: 253–76.Google Scholar
Albertyn, Catherine (2009) ‘“The Stubborn Persistence of Patriarchy”: Gender Equality and Cultural Diversity in South Africa’, Constitutional Court Review 2: 165–208.Google Scholar
Albertyn, Catherine and Goldblatt, Beth (1998) ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’, South African Journal On Human Rights 14: 248–76.Google Scholar
Albertyn, Catherine, Goldblatt, Beth, Hassim, Shireen, Mbatha, Likhapha and Meintjes, Sheila (1999) Engendering the Political Agenda: A South African Case Study. Johannesburg: Centre for Applied Legal Studies.Google Scholar
Albertyn, Catherine and Mbatha, Likhapha (2004) ‘Customary Law Reform in the New South Africa’, in Valk, Minke, Cummings, Sarah and van Dam, Henk (eds), Gender, Citizenship and Governance: A Global Source Book. Oxford: Oxfam Publishing, 51–60.Google Scholar
Amien, Waheeda (2010) ‘A South African Case Study for the Recognition and Regulation of Muslim Family Law in a Minority Muslim Secular Context’, International Journal of Law, Policy and the Family 24(3): 361–96.Google Scholar
Bennett, Thomas (1991) A Sourcebook of African Customary Law for Southern Africa. Cape Town: Juta & Co.Google Scholar
Bonthuys, Elsje (2010) ‘Reasonable Accommodation as a Mechanism to Balance Equality Rights and Rights to Religion in Family Law’, South African Public Law 25: 666–81.Google Scholar
Botha, Henk (2002) ‘Metaphoric Reasoning and Transformative Constitutionalism’, Tydskrif vir Suid-Afrikaanse Reg, 612–27.Google Scholar
Bozzoli, Belinda (assisted by Nkotsoe, Mmantho) (1991) Women of Phokeng: Consciousness, Life, Strategy and Migrancy in South Africa 1900–1983. London: James Curry.Google Scholar
Bronstein, Victoria (1998) ‘Reconceptualising the Customary Law Debate in South Africa’, South African Journal On Human Rights 14: 388–410.Google Scholar
Bronstein, Victoria (2000) ‘Confronting Custom in the new South African State: An Analysis of the Recognition of Customary Marriages Act, 120 of 1998’, South African Journal On Human Rights 16: 558–75.Google Scholar
Cachalia, Firoz (1993) ‘Citizenship, Muslim Family Law and a Future South African Constitution: A Preliminary Enquiry’ Tydskrif vir Hedendaagse Romeins-Hollandse Reg 56: 392–413.Google Scholar
Cassim, Fawzia (1999) ‘Understanding Women's Rights in Islam’, Codicillus 2: 169–74.Google Scholar
Chanock, Martin (1985) Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia. Cambridge: Cambridge University Press.Google Scholar
Chanock, Martin (2002) ‘Human Rights and Cultural Branding. Who Speaks and How?’, in An-Na'im, Abdullahi Ahmed (ed.), Cultural Transformation and Human Rights In Africa. London: Zed Books, 38–67.Google Scholar
Claassens, Aninka (2011) ‘The Resurgence Of Tribal Taxes in the Context of Recent Traditional Leadership Laws in South Africa’, South African Journal On Human Rights 27: 522–45.Google Scholar
De vos, Pierre (2004) ‘Same-Sex Sexual Desire and the Re-imagining of the South African Family’, South African Journal On Human Rights 20: 179–206.Google Scholar
Domingo, Wesahl (2005) ‘Marriage and Divorce: Opportunities and Challenges Facing South African Muslim Women with the Recognition of Muslim Personal Law’, Agenda 68–76.Google Scholar
Goldblatt, Beth (2003) ‘Regulating Domestic Partnerships – A Necessary Step in the Development of South African Family Law’, South African Law Journal 120(3): 610–29.Google Scholar
Goolam, Nazeem (2001) ‘Gender Equality in Islamic Family Law: Dispelling Common Misconceptions and Misunderstandings’, Stellenbosch Law Review 12: 199–214.Google Scholar
Griffiths, Anne (1997) In the Shadow of Marriage: Gender and Justice in an African Community. Chicago: University of Chicago Press.Google Scholar
Heaton, Jacqueline (2005) ‘Striving for Substantive Gender Equality in Family Law: Selection Issues’, South African Journal On Human Rights 21: 547–74.Google Scholar
Himonga, Chuma (2005) ‘The Advancement of Women's Rights in the First Decade of Democracy in South Africa: The Reform of the Customary Law of Marriage and Succession’, in Murray, Christina and O'Sullivan, Michelle (eds), Advancing Women's Rights. Cape Town: Juta and Co, 82–107.Google Scholar
Holomisa, Patekile (2005) ‘A Traditional Leadership Perspective of Gender, Rights, Culture and the Law’, in Bentley, K. and Brookes, H. (eds), Agenda Special Focus, 48–49.Google Scholar
Honarvar, Nayar (1988) ‘“Behind the Veil”. Women's Rights in Islamic Societies’, Journal of Law and Religion 6: 355–87.Google Scholar
Manjoo, Rashida (2007) The Recognition of Muslim Personal Laws in South Africa: Implications for Women's Human Rights. Human Rights Program at Harvard Law School Working Paper.Google Scholar
Mbatha, Likhapha (1997) Marriage Practices of Black South Africans. Johannesburg: University of the Witwatersrand, Centre for Applied Legal Studies.Google Scholar
Mbatha, Likhapha (2006) ‘The Content and Implementation of the Recognition of Customary Marriages Act 120, 1998: A Social and Legal Analysis.’ Unpublished LLM thesis, University of the Witwatersrand.Google Scholar
Mbatha, Likhapha, Moosa, Najma and Bonthuys, Elsje (2007) ‘Culture and Religion’, in Bonthuys, Elsje and Albertyn, Cathi (eds), Gender, Law and Justice. Cape Town: Juta and Co, 158–94.Google Scholar
Meyerson, Denise (2010) ‘Who's In and Who's Out? Inclusion and Exclusion in the Family Law Jurisprudence of the Constitutional Court of South Africa’, Constitutional Court Review 3: 295–316.Google Scholar
Moosa, Ebrahim (1996) ‘Prospects for Muslim law in South Africa: A History and Recent Developments’, Yearbook of Islamic and Middle Eastern Law 3: 130–55.Google Scholar
Moosa, Najima (1998) ‘Human Rights in Islam’, South African Journal On Human Rights 14: 508–24.Google Scholar
Moosa, Najma (2011) Unveiling the Mind, 2nd edn.Cape Town: Juta and Co.Google Scholar
Phillips, Anne (2003) ‘When Culture Means Gender: Issues of Cultural Defence in the English Courts’, Modern Law Review 66(4): 510–31.Google Scholar
Pieterse, Marius (2001) ‘“It's a Black Thing”: Upholding Culture and Customary Law in a Society Founded on Non-Racialism’, South African Journal on Human Rights 17: 364–403.Google Scholar
Robinson, Kim (1995) ‘The Minority and Subordinate Status of African Women under Customary Law’, South African Journal on Human Rights 11: 457–76.Google Scholar
Sachs, Albie (1992) ‘The Future of Muslim Family Law in South Africa’, in Advancing Human Rights in South Africa. Cape Town: Oxford University Press, 83–90.Google Scholar
Salrc (1997) Discussion Paper 74 Customary Marriages [Project 90 The Harmonisation of the Common Law and the Indigenous Law]. Pretoria: SALRC.Google Scholar
Salrc (1998) Report on Customary Marriages [Project 90 The Harmonisation of the Common Law and the Indigenous Law]. Pretoria: SALRC.Google Scholar
Salrc (1999) Issue Paper 15 Islamic Marriages and Related Matters [Project 59 Islamic Marriages and Related Matters]. Pretoria: SALRC.Google Scholar
Salrc (2011) Discussion Paper 130 Legislation Administered by the Department of Justice and Constitutional Development (Family Law And Marriage) [Project 25 Statutory Law Revision]. Pretoria: SALRC.Google Scholar
Shachar, Ayelet (2001) Multi-cultural Jurisdictions. Cultural Differences and Women's Rights. Cambridge: Cambridge University Press.Google Scholar
Shaheed, Farida (1994) ‘Controlled or Autonomous. Identity and the Experience of the Network: Women Living under Islamic Laws’ Signs 19: 997–1019.Google Scholar
Sinclair, June (assisted by Heaton, Jacqueline) (1996) The Law of Marriage: Based on H. R. Hahlo: The South African Law of Husband and Wife. Kenwyn: Juta and Co.Google Scholar
Tayob, Abdulkader (2011) ‘Muslim Marriages: From Constitution to Legislation?’ in Tayob, Abdulkader (ed.), Muslim Marriages in South Africa: From Constitution to Legislation: Papers Presented at Muslim Marriages Workshop, Saturday 22 May 2010, Capetonian Hotel. Cape Town: Centre for Contemporary Islam, UCT.Google Scholar
Walker, Cherryl (1994) ‘Women, “Tradition” and Reconstruction’, Review of African Political Economy 21(61): 347–58.Google Scholar
Walzer, Michael (2004) Politics and Passion: Towards a more Egalitarian Liberalism. New Haven and London: Yale University Press.Google Scholar
Women's legal centre (2011) Submissions on the Muslim Marriages Draft Bill. Cape Town: WLC.Google Scholar
Women's national coalition (1994) Women's Charter for Effective Equality.Google Scholar
Yuval-Davis, N. (1997) Gender & Nation. London: Sage Publications.Google Scholar