Why South Africa needs to recognise Muslim Sharia marriages

Muslim women and people of other faiths break their fast on the 27th day of the holy fasting month of Ramadan at the Kingsmead Cricket grounds in Durban at a mass interfaith iftar, the evening meal traditionally taken by Muslims after sunset during Ramadan on June 2, 2019 [Getty Images]
5 min read
17 September, 2021
Despite South Africa's constitutional progress post-Apartheid, regressive forces relating to Sharia law remain. With the South African Muslim community feeling increasingly marginalised by the judicial system, their hopes for Sharia persist.

Hundreds of women in South Africa have been suing their government demanding that the country recognises Muslim marriages in terms of Sharia law.

On August 5, South Africa's constitutional court – its highest – declared the common law definition of marriage should be maintained on the basis that it excludes Muslim marriages.

With origins in 100 years of Euro-centric-Christian colonialism, upon which the modern South Africa state was founded, the non-recognition of marriages in terms of Sharia law has since had far-reaching implications for women and children.

Muslims make up between 1.3-3 percent of South Africa's 60 million population, thus placing them among the country's strongest minority identities. Yet, South Africa's constitution, which is considered one of the most liberal on earth, does not accept marriages conducted under Sharia religious rules.

"For Muslim women the challenges can be devastating because South Africa is globally often referred to as the 'destination of femicide' because of its gruesome record on gender-based violence"

“Yes. Religious marriages (are) not recognised in South Africa. Broadly, religious marriages, Muslim, African, Hindu marriages all fall outside the domain, though the country guarantees freedom of religion,” Seehaam Samaai, the director of The Women Legal Centre tells The New Arab in an interview.

Suing South Africa

Since 2014, the Women Legal Centre (WLC), one of South Africa´s most active gender-rights non-profits, has taken South Africa's president and justice minister to court on behalf of hundreds of Muslim women who approach its offices annually seeking legal recognition of Muslim marriages in South Africa.

“The state has for the past 27 years in different fora indicated, (actually) since 1994 (year of independence), (it) has been indicating that they will broadly regulate Muslim marriages. Until today, it has not been done,” reveals Seehaam.

At the heart of the disappointment is the pervading racist Eurocentric attitudes upon which South Africa was constructed. These forces associate Muslim and African traditional marriages with polygamy argues Yasin Kakande, TEDx-speaker, anti-colonial critic and author of Slave States: The Practice of Kafala in the Gulf Arab Region.

Muslim women in South Africa's long walk to freedom continues
Muslim women in South Africa's long walk to freedom continues [Getty Images]

In operational matters, South Africa's Marriages Act Law has three pieces of legislation that currently governs relationships of marriages. These are the Marriages act, the Recognition of Customary Marriages Act, the Civil Unions Act. All those regulate marriages/relations of persons. In simple terms this means, a South African Muslim can’t get married in terms of Sharia and register that marriage in line with the Marriage Act requirements.

“(South Africa's) Marriages Act doesn’t take into account religious marriages which is very challenging,” explains Seehaam.

Danger for women

For Muslim women, the challenges can be devastating because South Africa is globally often referred to as the 'destination of femicide', because of its gruesome record on gender-based violence.

According to Africa Check, in 2017/2018 a woman was murdered in South Africa every three hours. Refusing legal recognition for marriages conducted under Sharia has a direct impact of limiting the divorce, custody, or financial rights of Muslim South African women who are in relationships with violent men.

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South Africa's children suffer consequences fast, Seehaam argues. “When it comes to Muslim marriages the issue of children is never dealt with which means they don’t get the protection that children coming from families married in terms of the (country’s) Family Act; Customary or Civil Unions laws.

“Because of the social circumstances, we all know that women, Muslims in South Africa first, are Black and secondly, that women, in particular, have had to deal with multiple forms of oppression: Black, issues of class, gender, and that their marriages are not legally binding,” stresses Seehaam.

The patriarchal nature of South Africa’s society has hit Muslim women hardest. The only way to protect them is to bring a broad umbrella of legislation that protect women whose marriages are organised under the Muslim faith.

With South Africa's often labelled the global capital of "femicide", what will it take for its Muslim community to feel safe?
With South Africa labelled as a global destination for 'femicide', what will it take for its Muslim community to feel safe? [Getty Images]

Islamophobia at play?

The challenges of the broader lack of recognition might include issues of Islamophobia, but the broad reason is the state's lack of political will to push through legislation that recognises Muslim marriages. In recent years, the South Africa Muslim Network has been dismayed by growing anti-Muslim verbal and physical criminal attacks in the country.

But within the South Africa Muslim community, there are vested parties that want the status quo on non-recognition of marriages to continue. There is no agreement within the Muslim community, they need to have a consensus on what the law will be when it comes.

“Within the (South Africa) Muslim community, there is a small group, I think small group, of conservative Ulama that has a very particular view in relation, and they do have the view that regulation is not required,” says Seehaam.

Seeham adds: “However, we are saying that the vast majority of the Ulama supports the view of the Women Legal Centre because they understand there is no broader enforcement of orders of Fasakh, and it is required.”

"It has been a long, long road for women that have sought recognition for their marriages over the past 27 years"

Doing nothing

In December 2020, the Supreme Court of South Africa instructed the state to take steps to recognise marriages conducted under the Muslim faith in South Africa in 24 months. To date, implementation is dismal. “The state has not done anything. The only thing they have done is issue a green paper, which is the first process to bring around any laws,” says Seehaam.

However, a couple of years ago, the South Africa justice ministry actually brought in what they call The Imam Project, encouraging people to regulate their marriages in terms of the country's Marriage Act and sign contracts or prenuptial contracts. “However, the bigger challenge that we have is: what happens to women that (are) in polygamous marriage (because) the Marriage Act doesn’t take (that) into account,” probes Seehaam.

Advocates for Muslim women like the WLC sense that tangible progress won't likely happen until 2024 – South Africa's next presidential election. In the meanwhile, the non-recognition places a huge burden on Black people, especially Muslim women, and those in relationships that are not recognised.

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The pain is sobering. “It has been a long, long road for women that have sought recognition for their marriages over the past 27 years,” reflects Seehaam. 

“We also want the courts to understand that South Africa is a diverse place. The state has an obligation to recognise the diversity of families, and respect the rights of the vulnerable.”

Ray Mwareya is a freelance writer in Ottawa, Canada whose work appears in The New Arab, The Guardian and Reuters

Follow him on Twitter: @RMwareya