Gender Equality, Constitutional Values and Religious Family Laws in South Africa
| DOI | 10.1177/135822910100500302 |
| Published date | 01 September 2001 |
| Date | 01 September 2001 |
| Author | Christa Rautenbach |
International Journal
of
Discrimination and the Law, 2001, Vol. 5, pp. 103-117
1358-2291/2001 $10
©
2001
A B Academic Publishers. Printed in Great Britain
GENDER EQUALITY, CONSTITUTIONAL VALUES AND
RELIGIOUS FAMILY LAWS
IN
SOUTH AFRICA
CHRISTA RAUTENBACH*
Potchefstroom University, South
Africa
ABSTRACT
South Africa has a pluralistic society in which various religious and cultural
groups, such as Muslims and Hindus, live according to their
own
customs and
usages.
At
present the law
of
South Africa generally does
not
recognise the validity
of
some
of
these customs and usages, for example marriages concluded in terms
of
Islamic law
or
Hindu law are not recognised as valid marriages.
The
con-
sequences
of
non-recognition have been particularly unfair to women.
There have been calls for the recognition
of
other family law systems and,
in particular, for the recognition
of
Islamic family law.
The
Constitution
of
the
Republic
of
South Africa, 1996 recognises the cultural diversity
of
South Africa
and provides for the enactment
of
legislation recognising other systems
of
law
based
on
religion
or
culture. However, such legislative recognition must
be
consist-
ent
with the Bill
of
Rights and other provisions
of
the 1996 Constitution. All
inequalities between men and women should therefore
be
dealt with before legislat-
ive recognition is given to family law systems that discriminate against women. In
this paper the obvious tension between gender-equality and freedom
of
religion
within the
new
constitutional dispensation is discussed. In doing so, the focus will
be
on
Islamic law and the position
of
Muslim women with respect to inheritance
laws.
BACKGROUND
Perhaps the
most
striking feature
of
South Africa is
the
fact that
we
have a multicultural society in which various communities
or
groups,
such as Muslims, Jews, Hindus and Africans, live according to their
own
customs and usages.
At
present the law
of
South Africa gener-
ally does
not
recognise the validity
of
some
of
these customs and
usages as law.1
The
result is that adherents to religious legal systems
live under state law in
the
public sphere, which is
the
common
law
and, with regard to their private life, according
to
non-state law,
which is religious customs and usages.
We
are all familiar with the
numerous judicial decisions that refused to recognise
the
validity
of
Islamic and Hindu marriages concluded
in
South Africa and abroad.
2
The
consequences
of
non-recognition have been particularly unfair to
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