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Overburdened judiciary staff
– by Rita Schäfer
After a long struggle, the South African government passed a new Customary Marriage Act in 1998 that came into force in November 2000. Ever since, women marrying according to traditional rules have the same rights as their husbands, i.e. more equality and legal security irrespective of how the marriage was performed.
During the political turning point of 1994, reform-oriented legal experts and conservatives had already been discussing fundamental changes of the law. But ever since the new constitution of 1996, there has been no consensus either. Currently, the debate is being rekindled due to the newly elected president Jacob Zuma: he is a convinced polygamist and is married to several women.
In South Africa, just like anywhere else, gender politics are expressed by family law. It is the interface between public and private life. Legal reforms should establish the basis for structural change. Yet often they result from compromise. Legal reforms show the close connection between legal development and social change as well as discussions on norms and values – as to the latter, social controversies are highly conflictual. After all, family law is responsible for structuring core areas of gender and generational relations, thus affecting the living conditions of women, men and children. This applies to national regulations concerning marriage, the spouse’s status, property situations, child custody as well as divorce, maintenance and inheritance law.
Gaps in the system
At the beginning of the 1990s, when women in the former homelands were participating for the first time in decisions on legal norms, organisations such as the Rural Women’s Movement were joining forces with female legal experts. Despite heavy resistance from the chiefs, they managed to enforce the legislation of the new constitution in rural settlements. The chiefs, on the other hand, wanted to keep their territory – the former homelands – under the rule of the customary law, in order to maintain control over women and family issues. They asked that the constitution grant them the right to exercise their culture. However, the female activists succeeded: traditionalism was to be subordinate to the principles of equality, as established by the constitution. And the new legal system was equally applied to all parts of society.
Yet, prior to the local elections, it was apparent how powerful the chiefs still were. They were threatening to disrupt the course of the elections; some of them called the legal reforms a betrayal of their culture and tradition. Bewildered by the new women’s rights, many black men were and still are supporting those chiefs.
Despite government specifications concerning gender mainstreaming, men were not actively involved in the transformation processes. This still leads to irritations on the part of many black men who have been humiliated by apartheid policy and racist behaviour. In search of new masculine identity patterns, the traditional and patriarchal gender order is interpreted selectively, although nowadays all women are officially regarded as equal and independent legal entities.
The legal reformers wanted to improve the women’s domestic and economic negotiating authority, but the wording of the Recognition of Customary Marriages Act remains partly ambiguous and incomplete. Up till now, for instance, a lot of married couples are ignorant of the fact that they are obliged to publicly register a marriage which is carried out according to traditional rules. To others, travelling from the far countryside to the responsible authorities, is simply too strenuous.
For a polygamous marriage, a man has to submit a written application and obtain judicial authorisation. He has to elucidate the separation of property and prove the other wives’ consent regarding the new marriage. Many judicial officers are unaware of these regulations; therefore the necessary documents are often missing. For many women, marital conflicts imply a legal vacuum, especially when their husbands are reluctant to observe the traditional duties, such as the full payment of the bride price.
Therefore, women’s rights organisations providing specific legal assistance are of extreme importance. The Women’s Legal Centre in Cape Town or the Tswaranang in Johannesburg are offering advice and information in several languages. The female experts are helping women who have married according to traditional laws by informing them about their rights. Also magistrates are part of their target group, as many of the state judiciary representatives are in need of information themselves. Moreover, gender stereotypes are obstructing objective jurisdiction, which is reflected by the verdicts on domestic violence and rape. Legal experts are not only imparting knowledge regarding the reforms of marriage and family law, they are also trying to have an effect on the people’s attitude.
Comprehensive education is equally necessary for the implementation of the 2004 modification of the law of inheritance. Ever since, daughters are entitled to inheritance – all children are considered equal heirs. This is the achievement of the female legal experts. During the often-escalating inheritance disputes, it was their aim to provide securities for AIDS-orphans and teenage households. Frequently, young socially marginalised girls are taking care of AIDS-orphans. Thus, the new law of inheritance is pointing the way for a society with an ever-growing feminisation of poverty where young women are particularly discriminated against and segregated by violence.
Similar to the marriage law, the implementation of this legal reform is a highly conflictual challenge. It is just as much about power and control of resources. Therefore, it is essential that international development co-operation strengthens the women’s rights organisations. They are engaged in a critical dialogue with the responsible political decision makers and they call for a functioning constitutional state.
Donor organisations that are withdrawing financial support for civil society organisations in South Africa should be more reserved about praising successful implementation of democracy, women’s and human rights in this country. As a matter of fact, South Africa still holds one of the world’s top positions in terms of domestic violence, rape and HIV/AIDS – let alone its high murder rates, xenophobic violence and other crimes. Establishing the constitutional state in a country that – due to its difficult historical heritage – has made it a constitutional obligation to realise women’s and human rights, is a complicated and conflictual task. Besides the public institutions, civil society organisations are significant; but for more negotiation power, they need reliable support.
South Africa’s neighbouring countries have to face similar challenges. In the run-up to the 2010 Soccer World Cup, the Women and Law in Southern Africa Research Trust (WLSA,) a regional network of women’s rights organisations, has launched a big campaign against white slave trade and sexual slavery. The RedLight 2010 Campaign is supported by WLSA and several allies from all SADC-countries. In addition to children’s and adolescents’ programmes, they have developed proposals for legal reforms and their implementation in the SADC-countries. WLSA has been advocating family law reforms as well as improvements of the legal practice in Southern Africa for years. The WLSA experts work with the concept of “living law”, focussing on a critical and constructive dialogue with local authorities. Furthermore, they are proceeding against domestic and sexual violence.
The transnational human trafficking and forced prostitution has been a problem for years. Yet hardly any government has passed legislation to prosecute human traffickers – or laws have not been properly applied. Neither abductors nor clients have to expect punishment. Experts for women’s and children’s rights fear that especially young girls, e.g. marginalised AIDS-orphans, are being tricked and brought to South Africa under false promises. The expected foreign soccer fans are considered well-paying clients whose fear of an HIV-infection is to be diminished by very young prostitutes.
Officially, prostitution in South Africa is illegal. However, there is a discussion about legalisation during the World Cup. Some ANC-parliamentarians support the proposition as in the fight against criminality. Conservative forces want to abide by the prohibition. Some female legal experts want it to be legalised others don’t. To them all, however, it is not a matter of morals, but of women’s and girls’ rights. They demand that the South African government provides better protection – and not only during the 2010 Soccer World Cup.