Muslim women to enjoy greater rights in marital law

Muslim women married under shariah law edged closer to full enjoyment of the rights provided under South African marital law. On Wednesday the Constitutional Court ruled that Muslim women involved in polygamous marriages can now inherit a share of their deceased husband’s estate.

The Intestate Succession Act recognizes widows married in civil ceremonies, widows in monogamous Muslim marriages and widows in polygamous cultural marriages, but not women in polygamous Muslim marriages.

Fatima Gabie Hassam was one of two wives. When her husband died without a will, the executor of his estate refused her claim to a share of her husband’s estate. In 2004, she took her case to the Western Cape High Court, asking to be recognized as an heir to her husband’s estate.

The Western Cape High Court ruled in Hassam’s favor, and referred the case to the Constitutional Court for confirmation of constitutional invalidity. In her judgment, Concourt Judge Bess Nkabinde confirmed the high court’s ruling, saying the Act violated Hassam’s right to equality and that she had been discriminated against on grounds of religion, marital status and gender.

Nkabinde’s order means that the Intestate Succession Act will now refer to “spouse or spouses” as inheritors to include widows from polygamous Muslim marriages. The judgment did not “foreshadow any answer” on whether polygamous marriages are “consistent with the Constitution”, Nkabinde said.

She added that, while the question was still open, this should not preclude women in polygamous marriages from appropriate protection.

Jennifer Williams, director of the Women’s Legal Centre, which entered the case as a friend of the court, said that courts have previously argued in favor of Muslim women in polygamous marriages on specific issues regarding pensions, medical aid and the Road Accident Fund. But such a “piecemeal” approach is inadequate, she said.

Professor Pierre de Vos, a constitutional law expert from the University of Cape Town, said Muslim marriages are analogous to same sex unions before these were recognized in law. Courts “used to deal with them piecemeal, as in the case [with Muslim marriages] today. But in the end, they realized that those marriages had to be recognized in some way.

“One could argue that Muslim marriages might follow the same route here, though I think this issue is a bit more complicated because of the question of what would serve women best.”

The Women’s Legal Centre is currently awaiting judgment from the Constitutional Court in a case that aims to secure recognition of Muslim marriages. “What concerns us is that in the case of divorce, they [Muslim marriages] are not recognized,’ Williams said. “Obviously, the state is aware that this is unconstitutional. Hopefully [this case] will provide the impetus for them to speed up the process and finally legislate in terms of these marriages.”

Ahmed Mayet, senior impact ligitation attorney of Legal Aid South Africa, for the Muslim Youth Movement who were friends of the court, said there are instances where men take on a second wife, "sometimes without even the knowledge of the second wife, and then the second wife usually is younger and she gets all the benefits and the first wife is ignored, even though she has children".

# Meanwhile, the Constitutional Court ruled on Wednesday that minimum sentencing legislation could not be applied to 16- and 17-year olds as it infringes on their rights as children. Minimum sentencing for these ages had been made compulsory for certain serious crimes by a 2007 amendment to the Criminal Law (Sentencing) Act, and the University of Pretoria’s Centre for Child Law challenged the statute. A majority of the court found that the minimum sentencing regime directed judicial officers away from options other than incarceration and therefore limited children’s rights under the Constitution.