rights
Khadija Magardie
A SECOND LOOK
The constitutionally entrenched right to gender equality faces subordination to the provisions of customary law. And unless the issue of balance between entrenched rights and respect for traditions and customs is seriously addressed, South African women, particularly rural black women, will be emancipated on paper only.
The Supreme Court of Appeal recently confirmed that women, if married under African customary law, are bereft of all rights under a matrimonial property regime. The court ruled that, in terms of the “fossilised” customary law rule of “male premogeniture”, African women are excluded from inheritance.
The ruling could set an alarming precedent that would in effect entrench a notion that women’s rights, despite being declared inviolable by the South African Constitution, are subject to the notion of “cultural relativism”.
This tactic, incidentally, was used last year by certain Muslim-majority countries at the International Court of Justice preparatory committee in the United States to justify excluding crimes such as rape, involuntary pregnancy and forced seclusion of women from the list of “crimes against humanity”.
When African customary law was first afforded constitutional protection in South Africa, it was made clear this would be done under the strict condition that it neither contradicted nor violated the spirit and principles of the Constitution itself.
It appears this discretionary rule has been all but forgotten as the idea of equality before the law, regardless of sex or gender, is proving incompatible with certain aspects of customary law.
The appeal court judgement was by no means “a law out of the blue” and was merely applying the provisions of customary law – by the book. Although there are other contentious areas, such as whether the payment of lobola should be allowed to determine the validity of the marriage, by virtue of its socio-economic implications, the most controversial aspect by far is the “cast-in-iron” rule that inheritance follows the male line, drastically prejudicing the inheritance of women. All inheritance patterns are patrilineal, meaning that the family’s property and wealth is passed down from male to male.
The appellant in the appeal court case, a widowed black woman from Vosloorus who had married under African customary law, had brought an appeal against her late husband’s father, who challenged that, by virtue of the operation of the customary law rule of succession, all property of the deceased should devolve to him. The woman’s late husband had died intestate, leaving no will.
The appellant argued that the rule of “primogeniture”, together with a 1987 regulation for “the Administration and Distribution of the Estates of Deceased Blacks” was unconstitutional because it violated her right to gender equality. Her legal representatives motivated that the rule of succession “discriminates against all black women and girls, and all black children who are not eldest children by excluding them from participation in intestate succession, while it does not visit the same disability upon eldest sons or anybody who is not black”.
The respondent, the woman’s father-in- law, countered that no customary union in fact existed because her family had only paid a part instalment towards her lobola. On the basis of this the appellant’s daughter was declared “illegitimate” by the court, and thus not entitled to inherit from her deceased father. Legal experts have called this “absurd reasoning” since the appellant’s daughter, by virtue of her being female, would not be entitled to inherit anyway.
The reasoning was, nevertheless, sufficient to convince the court to uphold the principle that women married under African customary law have no right to inherit.
Agender research project on customary law, released last year by the Centre of Applied Legal Studies (CALS), said “a widow automatically falls under the guardianship of her husband’s heir, along with the moveable and immovable matrimonial property”.
Concurring, the judgement quotes a well- known manual on customary law saying that the heir of the deceased, in this case his father, “assumes the deceased’s position as guardian of the women and minor sons in the family”. It goes on to say that the heir is “obliged to support and maintain them” and “not to expel them from his home”. The latter is nearly impossible to enforce.
The spirit of such rulings in effect places widowed and orphaned black women at the mercy of their husband’s male relatives, who alone have the perogative to kick them out or not. This has particular consequences for black women in rural areas, who are afforded scant legal protection.
Moreover, as the CALS report noted, access to legal services “presupposes that women are aware of the extent and means by which to exercise their legal rights”. For the majority of indigent women in this country, the far-reaching gender reform spoken of in the cities, such as the Maintenance Act and Domestic Violence Act, are nothing but “pie in the sky”.
If anything, such judgements highlight the need for women married under customary law to negotiate the terms and conditions of their marital regime by means of a civil contract that would then be made legally binding on all parties.
This would, no doubt, involve a great deal of education, campaigning and awareness, from various NGO bodies, religious and cultural organisations and the government itself. But it should be viewed as a less time-consuming and costly venture than the establishment of various ad hoc committees to draw up discussion papers and draft documents.
Moreover, insufficient and paltry research has been done into the source and even validity of certain culturally or religiously sanctioned practices. It often happens that the views and positions of the few are taken for the acceptable norm. It is the continuous manipulation of cultural practices and religious texts by certain elites, to maintain their grip on the lives of women, that presents the biggest challenge to lawmakers out to “do the right thing”.