logo

Campaign : DIVERSITY OF RITUALS, UNITY OF VALUES AND PRINCIPLES

Recognize and Regulate Muslim Marriages in South Africa

10 December 2020

The President of South Africa
Mr. Cyril Ramaphosa
Union Buildings

PRETORIA

Your Excellency,

We are writing to you in connection with serious and urgent matter regarding the nonrecognition and non-regulation of religious and customary marriages in general, and Muslim marriages in particular.

As you are aware during the Apartheid years Customary Marriages including Muslim marriages were invalidated by the Apartheid regime. To correct this injustice government enacted the Recognition of Customary Marriages Act (RCMA). However, 26 years later in a democratic South Africa the legacy of non-recognition and non-regulation of the South African Muslim community’s marriages endures.

In this Sixteen Days of Activism Against Gender Based Violence (GBV) we make this
submission to you and appeal to you to intervene on behalf of the women who suffer abuse as a result of the legal vacuum that exist because of the non-recognition of religious and customary marriages in general and Muslim marriages in particular.

Your sincerely

Ms Rosieda Shabodien
Programme Manager
World for All Foundation

SUBMISSION TO GOVERMENT AND PARLIAMENT

The Recognition and Regulation of Religious and Customary Marriages and their Attendant Processes to Ensure Conformity with the Values Principles and Intents of the Bill of Rights and Constitution – with Special Emphasis on Muslim Marriages.

President Cyril Ramaphosa in his letter (November 2020)1 addressing the Sixteen Days of Activism Against Gender Based Violence (GBV), whilst acknowledging the extremes of GBV as physical violence and femicide, makes the fundamental connection between such GBV and its ultimate precursors:

“It is up to us all, as individuals and communities, to bring about the change we surely need. It is about driving fundamental change in societal attitudes that allow sexism, chauvinism and patriarchy to thrive.”

With this, the President not only identifies the ultimate precursors to GBV – sexism, chauvinism and patriarchy – but also commits, and invites, to all efforts to drive ‘fundamental change in societal attitudes.’ It is to this that the World for All Foundation (WFA) responds in highlighting the precursors embedded in the non-recognition and non-regulation of religious and customary marriages in general, and Muslim marriages in particular.

Why is the State Opposing the Desai Ruling?

This submission would have been superfluous had the State not chosen to ignore, let alone appeal the Supreme Court of Appeal (SCA) judgement2 , and the judgment by the Western Cape High Court (Judge Desai, et al) directing the State to enact the 1 https://www.gov.za/speeches/dialogue-mark-16-days-activism-26-nov-2020-00002 necessary legislation and regulations required to eliminate or minimise the abuse and violation of rights inherent in the legal vacuum in which Muslim marriages by and large occur. We prefer to think that the State is not oblivious to the manifestation of abuse in this legal vacuum in which the South African values of equality, dignity, nondiscrimination, gender rights and protection from abuse – emotional, legal, physical and psychological – are routinely and inherently violated. And we also want to believe that the State is not oblivious to the hardship of a legal vacuum since the State have previously found it necessary to pass legislation on Customary Marriages.

WE URGE THE STATE TO RESTATE ITS COMMITMENT TO THESE FUNDAMENTAL VALUES AS THEY PERTAIN TO WOMEN IN CUSTOMARY AND
RELIGIOUS MARRIAGES.

Will the State Provide Comprehensive Legislation and Regulations?

We prefer to think that the State may have some over-arching legislative framework that may constitute a big bang solution to all customary and religious marriages as well as the management of the processes which flow there from like equality before the law from the point of marriage through the dissolution, from inheritance to matters of custody, from the rights and protection of women before, during and after the marriage, and from the equitable management of property and other assets in the course of the marriage.

WE WOULD URGE THAT THE STATE CLARIFY ITS INTENTION AS TO WHETHER SUCH LEGISLATION AND REGULATIONS ARE IMMINENT.

Can the State Align Marriage Provisions with the Values of The Bill of Rights?

We further note that the President in his letter advises that ‘legislative and policy measures are not sufficient’, and while agreeing with him, we would, in turn, advise respectfully that they remain necessary. It is inconceivable that almost every space  touched by apartheid’s injustice is being purged – from the political, social and increasingly economic spaces – but this cardinal space from which we expect a new nation to emerge with new values, this intimate space remains unregulated and therefore, largely unpatrolled and uninfused by the values, principles and intents of the Bill of Rights and Constitution.

WE URGE THE STATE THAT THIS ANOMALY – 26 YEARS LATER – MUST BE CORRECTED AND THAT SUCH INTENTION BE PUBLICLY STATED TO BRING
POLICY, LEGISLATION AND REGULATION INTO BEING IN LINE WITH OUR FOUNDING VALUES.

Diversity of Ritual, Unity of Values?

In the spirit of our preamble that we ‘are united in our diversity’, we agree that it remains laudable that we advance and manifest our cultural, customary and religious diversity. In the case of customary and religious marriages, we agree on the idea of ‘Diversity of Ritual, Unity of Values and Principles’.

 

This would mean:

• Choose the diversity of civil, custom or religions by which to fulfil the ritual of marriage, but unite around the values of equality, dignity, non-discrimination,
consent and gender rights as required by the Bill of Rights and the Constitution;

• Choose from a diversity of marriage officers and sites, but unite around the imperative to have such marriage officers and marriages legally registered with
Home Affairs;

• Choose from a diversity of counselling services to mediate a marriage or its dissolution, but unite around the duty of civil authorities to ensure legal equality, police protection for the vulnerable, economic justice and equity for spouses and children, and dignity for women; and

• Choose to utilise the provision of polygamy but unite around both the guarantee of fundamental conditions – Islamic and State – of transparency of intent, equity of economics, equality of treatment, consent by all and dignity for all.

 

WE URGE THE STATE TO UNDERTAKE THAT THESE SAFEGUARDS OF OUR BILL OF RIGHTS AND CONSTITUTION BE BUILT INTO ANY POLICY,
LEGISLATION AND REGULATION AND ARE MADE BOTH MANDATORY AND ENFORCEABLE.

Can We Balance the Needs of Foreign Nationals with the Integrity of Marriages?

We are also aware that South Africa remains a destination of choice for a variety of foreign nationals who escape economic, environmental and security hardships and conflicts and seek a better life. Some enter into genuine relationships with South

Africans whilst others seek a convenient path to citizenship. Work permits and other permissions, often exploit the unpatrolled and unregulated spaces in the field of personal law - which may include practices of polygamous and other marriages – are often shortcuts to benefits.

WE URGE THE STATE TO CLOSE THE REGULATORY VACUUM THROUGH A SENSITIVE BALANCE BETWEEN FACILITATING THE GENUINE RELATIONSHIP
AND CLOSING THE LOOPHOLES THAT RESULT IN ABUSE AND NEGLECT.

Can We Balance the Community and Civil Jurisdictions?

Each customary or religious community has a judicial, clerical, customary or law-making council, authority or body which can stipulate the policies or edicts of their community.

They can, therefore, facilitate the fair-weather aspects of their rituals (such as entering a marriage or prescribing the rules of inheritance). However, they have no enforcement mechanism for the downside when abuse, dissolution or violation of rules occur.

WE URGE THAT THE STATE MUST RETAIN THE CIVIL INITIATIVE IN SUCH CASES WHERE MALE RELIGIOUS PREROGATIVES SUPERCEDE WOMEN’S RIGHTS SO THAT WOMEN, THROUGH CIVIL LAWS AND CIVIL AUTHORITY HAS THE PROTECTION AGAINST ABUSE, THE RECOURSE TO DISSOLUTION OF AN ABUSIVE RELATIONSHIP AND EQUITABLE ACCESS TO THE MATERIAL RESOURCES OF A RELATIONSHIP.

Is A Comprehensive Legal Framework Not Better than Judicial Precedence?

The Muslim community has been witness to legal and judicial precedence writing bit by bit and case by case the legal dispensation for Muslim women affecting, among others, issues related to marriage and its dissolution, the practice of polygamy and its abuse, and matters relating to inheritance. (The Women’s Legal Centre, Hassam, Esau, Daniels and others). However, this fragmented time-consuming, imperfect and ultimately incoherent process of judicial precedence is not in line with the values of the Bill of Rights and Constitution which does not offer a ‘progressive realisation’ of safety, dignity, equality and freedom from abuse.

WE URGE THE STATE TO EMBRACE THE INTENT OF THE CAPE HIGH COURT DIRECTIVE (DESAI et al) AND THE LEGAL INTERVENTION BY THE WOMEN’S
LEGAL CENTRE (SCA) BY WITHDRAWING ITS APPEAL AND YIELD TO THE IDEA OF A FULL, URGENT AND COMPREHENSIVE POLICY, LAW AND SET OF
REGULATIONS TO ELIMINATE THIS ABUSE.

Is This Not in The Mandate of Home Affairs?

We submit further that the Department of Home Affairs has the mandate to ensure all of the matters outlined above to ensure that the best values of our Bill of Rights impact positively on our citizens, and fairly on non-citizens.

WE URGE THE STATE TO DIRECT THE DEPARTMENT OF HOME AFFAIRS TO EXPEDITE THE MEASURES THAT WOULD FULFIL THIS MANDATE AS IT
PERTAINS TO THE ISSUE OF CUSTOMARY AND RELIGIOUS MARRIAGES.

Can the President's Promise Be Kept?

This is critically urgent. The situation is dire. While the overwhelming majority of adherents to customary, religious, cultural or Muslim traditions and rituals are lawabiding, respectful citizens and not victims of abuse, we often make laws and regulations to protect a minority who are abused.

The President in his letter acknowledges both the urgency and the need to protect this minority of victims who suffer at the hands of a minority of perpetrators by ensuring that witting or unwitting enablers are not paralysed or get drawn into abuse because they unconsciously share a paradigm of patriarchy.

The President says in in his letter:
“By the time the campaign concludes on International Human Rights Day, let us be all the closer to achieving a society in which the rights of women and girls are upheld and protected.”

 

WE URGE THE GOVERNMENT AND PARLIAMENT TO ACT IN THIS SPIRIT OF URGENCY, TO ENSURE THERE IS INDEED DIVERSITY OF RITUAL, BUT UNITY
OF VALUES, PRINCIPLES AND INTENTS IN ENSURING THAT NO LEGAL VACUUM EXISTS AND WHERE THE VALUES OF THE BILL OF RIGHTS AND CONSTITUTION ARE DEEMED NOT APPLICABLE.

RESOURCES

Zebra Campaign : NOT ALL IS BLACK AND WHITE!

Wisdom from the African Zebra

1. CONCEPT

Actual-ZebraThe World for All Foundation believes that the great gathering on African soil for the 2010 Soccer world Cup by FIFA will not only showcase the beautiful game and the hospitality of Africans, but also is a unique opportunity to make available the profound wisdom that is, slowly but surely, allowing Africa to emerge from its past into its renaissance.

We believe, particularly, that we should highlight South Africa’s contribution to a world beset by challenges. South Africa stands out as an example of doing what is counter-intuitive: forging unity out of apartheid, negotiating a settlement after years of violence, and reconciling those who have been perpetrators and victims of brutality.

These lessons and wisdoms need to be conveyed in an innovative, multidimensional and light way as a complement to the soccer and tourism during the Soccer World Cup. It is not aimed at detracting from an enjoyable event, but to add meaning in ways that will make this a truly African experience.

We thought the best conveyor of such wisdom should be the African Zebra, carrying a message in both word and artistic form, and placed at key locations where tourists and locals will gather during this period. These locations will not violate any FIFA regulations and the zebras will not constitute any ambush marketing.

The zebras are meant to capture attention, arouse curiosity, stimulate discussion, and create a ‘wisdom souvenir’ that can be taken away globally. It is meant to constitute a series of photo-opportunities along a zebra trail in the greater Cape Town region. The zebras can be complemented by a souvenir book, postcards and other paraphernalia aimed only at recouping the input costs, and allowing the World for All Foundation to do its work of creating inclusive, shared societies and communities, while working actively to overcome extremisms of all kinds.

We have chosen Cape Town only by virtue of convenience. Time and resources have constrained us. However, we expect most visitors to spend some time in Cape Town, thus giving the Zebras maximum exposure.

2. MOTIVATION

2.1. The FIFA 2010 Soccer World Cup will be a great gathering of people and media and as the tournament progresses, they will have more time to explore South Africa and take in its beauty.

2.2. The main objective of this gathering is soccer and tourism, and for many overseas guests it would probably be their first visit to Africa, South Africa and Cape Town.

2.3. We need to utilize this opportunity to show what Pliny the Elder realized long ago when he said: “Out of Africa, always something new.” One of these remarkable contributions has been “the South African miracle” and we need to distil the spirit and substance of the South African experience.

2.4. Without detracting from the precepts of the FIFA Soccer World Cup, we need to find a medium for this wisdom that is mildly intrusive, eye-catching and arouses curiosity, discussion and results in a moment of insight. We thought of a similar medium that enjoyed success: the ‘cows’ that adorned the streets of Chicago and other cities

2.5. In adapting this concept to Africa, we thought that the African Zebra allows us to warn against a tendency to view everything in terms of simple binaries, in black and white. The zebra should be one of the few beautiful things in black and white, while almost everything else, especially human perspective, should learn to find beauty in complexity, in multi-coloured dimensions.

2.6. We propose about 30 zebras, each depicting its common message that “not all is black and white” as well as its unique message drawn from the wisdom of arguably the finest product of Africa, Nelson Mandela, and complemented artistically to interrupt the beautiful black and white of the zebra. All of this illustrates South Africa’s break with its apartheid division of people into black and white.

2.7. In drawing on Madiba’s wisdom, we make available what the world admires, in the year in which we commemorate 20 years since his release from prison. We pay homage to his role in Africa and South Africa and we, on 18 July commend him as an example worthy of emulation. We also anticipate his birthday and exhort people to give 67 minutes of their time to do good in the world.

2.8. We hope that the zebras will constitute a visitors/tourism route that people could follow to capture the meaning and wisdom each one conveys, and that they will retain the wisdom through personal insight and commitment, as well as through the medium of photography.

2.9. The zebras will have a life beyond the World Cup with various possibilities available to ensure that their messages remain almost eternal.

3. OBJECTIVES

The objectives, therefore, of the zebra campaign are simple:

3.1. To ensure that we are an excellent soccer location, but that we are also remembered as a place of wisdom, learning and innovation in the way we ensure good relations between different people;

3.2. To impinge on a global consciousness with wisdom and experience of doing the counter-intuitive and the unexpected in the face of long-standing, and seemingly intractable, challenges;

3.3. To package such lessons, experiences and wisdom in ‘take-away’ form, with a light and meaningful touch, using a unique African motif – the Zebra- filled with symbolism; and

3.4. To enhance the experience of soccer lovers and tourists during their stay, without detracting from the reason for their stay – the FIFA Soccer World Cup.

4. MESSAGES

The messages will be uniquely African and South African. Rather than viewing Africa only as a place with a terrible history of slavery, colonialism, genocide, civil war and poverty, we need to send out a message that reflects a pre-existing civilization, heroism in the face of adversity, wisdom in confronting challenges, and a birthplace of great leaders, thinkers and activists.

The overarching message represented by the Zebra is that “not all is black and white.” It is an invocation to avoid simplicity and embrace complexity, to avoid binaries and to ensure respectful co-existence of difference and opposites, to shun extremes and to find the middleground, and never to repeat the apartheid experience of dividing people. Moreover, the Zebra also signifies a place in a busy road to crossover safely to the other side.

The specific and unique message conveyed by each Zebra will be a combination of a wisdom articulated and exemplified by Nelson Mandela, and an artistic interpretation thereof by an artist.

The themes will include:

Building Unity and Respecting Diversity;
Embracing Multi-culturalism, Cosmopolitanism and shared Spirituality;
Acceptance of Difference (religious, cultural, ideological…);
Living with Mutiple Identities;
Ubuntu;
Non-violence, Peace and Co-operation;
Engagement, Dialogue and Negotiation;
Compromise and Consensus;
Service, Sacrifice and Selflessness;
Anti-Discrimination: Race, Gender, Religion, Orientation, Culture;
Shunning Extremism and Seeking the Middleground; etc
The specific life lessons of Nelson Mandela include, amongst others, the following quotes taken from the Penguin Publication published in 2010 and compiled and edited by Jennifer Crwys-Williams:

“All of us, descendants of Africa, know only too well that racism demeans the victims and dehumanizes its perpetrators.”

“Anger is a temporary feeling – you soon forget it, particularly if you are involved in positive activities and attitudes.”

“I wanted South Africa to see that I loved even my enemies while I hated the system that turned us against one another.”

“There is no easy walk to freedom.”

“We do not want freedom without bread, nor do we want bread without freedom.”

“Freedom cannot be achieved unless women have been emancipated from all forms of oppression.”

“No one is born hating another person because of the colour of their skin, or his background, or his religion.”

“I was not a messiah, but an ordinary man who became a leader because of extraordinary circumstances.”

“To deny any person their human rights is to challenge their very humanity.”

“The key to the protection of any minority is to put core civil and political rights beyond the reach of temporary majorities by guaranteeing them as fundamental human rights….”

“None of us can be described as having virtues or qualities that raise him or her above others.”

“Deep down in every human heart, there is mercy and generosity.”

“The time for healing wounds has come. The moment to bridge the chasms that divide us has come. The time to build is upon us.”

“Memory is the fabric of identity. At the heart of every oppressive tool…was a determination to control, distort, weaken, even erase people’s memories.”

“Extremists on all sides thrive, fed by the blood lust of centuries gone by.”

“When you negotiate you must be prepared to compromise”

“Negotiated solutions…emerge when those who have been divided reach out to find the common ground. “

“Only free men can negotiate.”

“…never again shall continents, countries or communities be reduced to the smoking battlefields of… nationality, religion, race or language?”

“…we live in an interdependent world which is bound together to a common destiny.”

“We operate in a world which is searching for a better life – without the imprisonment of dogma.”

“I will go down on my knees to beg those who want to drag our country into bloodshed and persuade them not to do so.”

“Language, culture and religion are important indicators of identity.”

“No one can be at peace while others wallow in poverty and insecurity.”

“Nothing is more dehumanising than isolation from human companionship.”

“I realised that they could take…all except mind and heart…and I made a decision not to give them away.”

“I detest racialism, because I regard it as a barbaric thing, whether it comes from a black man or a white man.”

“…colour, race and gender become only a God-given gift to each one of us and not an…attribute that accords a special status to any.”

“Racism must be consciously combated and not discreetly tolerated.”

“Reconstruction goes hand in hand with reconciliation.”

“The strength of inter-religious solidarity in action against apartheid, rather than mere harmony or co-existence, was critical in bringing that evil system to an end.”

“We need religious institutions…to be the conscience of society, a moral custodian and a fearless champion of the …weak and downtrodden.”

“If you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart.”

5. METHODOLOGY

Fibreglass models of the Zebras will be produced. It will be a discernable Zebra except for the torso which will be the artists’ canvas to convey the message in both word and art. Each Zebra will carry both a common as well as a unique message.

Artists have been engaged to ensure that about 33 Zebras will fulfill the objectives of the campaign, and work is being done to ensure compliance with FIFA and municipal regulations.

Each Zebra, when completed, will be placed at a specific location which will be chosen from a matrix of factors:

places where people congregate;
places with historical significance;
places where tourists visit; and
places of commercial and cultural significance.
The Zebras could be complemented by a brochure containing a map which would depict a “zebra trail” to encourage people to visit each one. A booklet detailing the messages, the artworks, the objectives, and giving information about the artists and Madiba could be on sale. We could even produce postcards of the Zebras that could be posted from South Africa. These could be used to recoup the input costs of the campaign.

Possibilities for the zebras after the World Cup include:

staying at the location where they are placed;
moving to other public places to fulfill the same objective; and
being auctioned/sold to companies which want to benefit from their messages.

6. CONCLUSION

The Zebras are meant to carry the core messages of Africa’s Renaissance, of South Africa’s peaceful transition from Apartheid to Democracy, and the World for All Foundation’s vision of a share society, where different people co-exist respectfully, where complexity is embraced and extremism is shunned. We think the Zebras will be a unique and meaningful addition to FIFA’s 2010 Soccer World Cup.