March / April Newsletter

Home / March / April Newsletter

The past two months have been a busy time for us at the Women’s Legal Centre. Our work has focused on our relationship rights programme which is geared towards ensuring that women’s rights to housing, land and property are recognised, protected and promoted in the different relationships that they have.

Following on the judgment by the Constitutional Court in the Ramuhovhi matter in February there has been a lot of interest in how customary law impacts on women’s rights to housing, land and property. In April, and in compliance with the Constitutional Court order, the Department of Justice and Constitutional Development has released for public comments a draft Amendment Bill, which seeks to remedy the defects in the Recognition of Customary Marriages Act. Our newsletter contains a brief summary of the case and its importance to women married in polygamous marriages under African customary law.

April also saw the completion of argument in the Women’s Legal Centre’s case against the Executive and the Legislature to compel the drafting, introduction, and adoption of legislation to recognise Muslim marriages. This case was launched in December 2014 and many women have waited a very long time for arguments to be presented before the Court. The case is of critical importance as women married in Muslim marriages continue to have their rights to housing, land and property denied. An update on the arguments made during the hearing can be found in the newsletter and our pleadings are available on our website.

Our work is guided by the needs of the women to whom we provide services. Over the last two months we have provided additional services to asylum seeker and refugee women through our partnership with the Scalabrini Centre. Asylum seeker and refugee women are extremely vulnerable. By providing legal education and training to women to inform them of their rights to be free from violence, and their rights to maintenance for their children we strengthen their ability to access the justice system. Through our engagements we have noted an increase in the number of asylum seeker and refugee women who have approached us for legal advice and support, and we look forward to strengthening our capacity to respond to this vulnerable group within our society. 

On the law reform and parliamentary schedule we have made submissions to the speaker of Parliament in relation to the amendment of the Civil Union Act. We have welcomed the steps taken to repeal section 6 of the Act, which currently allows for Department of Home Affairs’ officials to discriminate against same sex couples by refusing to solemnise their marriages.

Finally, at the end of April we said farewell to Teboho Mashota who was our legal adviser in our Johannesburg office. Teboho has been with the organisation since 2014, and it has truly been a pleasure to have her as part of our team. We wish Teboho the very best on her new career path, and we know that she will be missed by the many women she has assisted during her time with us.

Extending Legislative Protection to all Women in Polygamous Customary Marriages

On 30 November 2017, The Constitutional Court handed down judgment in an application for confirmation of an order made by the Limpopo High Court. The order concerned the proprietary consequences of ‘old’ polygamous customary marriages – polygamous customary marriages entered into before the commencement of the Recognition of Customary Marriages Act on 15 November 2000 (RCMA).

Section 7(1) of the RCMA provides that the proprietary consequences of customary marriages entered into before the commencement of the Act continue to be governed by customary law. Venda customary law, which was the law in issue before the Court, does not vest wives in such marriages with ownership in or control over the marital property. It is customary law practice for a husband to have control over the joint property. This practice has a negative impact on their wives, and the children born of these marriages. This is in stark contrast to the position of women who enter into customary marriages after the commencement date of the Act – such marriages are by default in community of property. Where, after the commencement of the Act, a husband wishes to enter into another customary marriage then application must be made to court for the approval of a written contract that will govern the future matrimonial property system of the marriages. Where no such contract has been drawn up then the second customary marriage will be out of community of property. The Constitutional Court in Ramuhovhi and Others v President of the Republic of South Africa and Others was therefore called upon to decide the constitutionality of section 7(1) of the RCMA as it relates to polygamous customary marriages entered into before the commencement of the Act.

Section 7(1) was previously declared invalid in the context of ‘old’ monogamous customary marriages. The Constitutional Court in Gumede held that these marriages, like marriages entered into after the commencement of the Act, are automatically in community of property as the customary law did not align with the Constitution and its values. The Court in Ramuhovhi thus referred to the matter as a ‘sequel’ to Gumede. The Court described the reason for the need for the case before it as follows:

‘In that case [Gumede], the amicus curiae [friend of the court] urged this Court to extend its declaration of invalidity to encompass pre-Act polygamous customary marriages. The Court declined to do so. What it said, instead, was that it would draw the Legislature’s attention to what appeared to be a lacuna. However, in the almost ten years since Gumede, the Legislature has not filled the gap. That explains how section 7(1) continues to govern pre-Act polygamous customary marriages.’

In the case of Ramuhovhi, the Applicants were the biological children of the deceased, Mr Masewa Joseph Netshituka. Mr Netshituka entered into polygamous customary marriages with Ms Tshinakaho Netshituka, Ms Masindi Netshituka and Ms Diana Netshituka. He also entered into civil marriages with Ms Martha Mosele Netshituka and the Fourth Respondent, Ms Munyadziwa Joyce Netshituka. 

The civil marriage between the deceased and the Fourth Respondent was however declared null and void by the Supreme Court of Appeal because at the time of the civil marriage the deceased was already a party to customary marriages with Ms Tshinakaho Netshituka and Ms Diana Netshituka. The First and Second Applicants were children born from Mr Netshituka’s polygamous customary marriages to Ms Tshinakaho Netshituka and Ms Masindi Netshituka, respectively.

The deceased left a will, in terms of which he referred to the Fourth Respondent as a wife to whom he was married in community of property. According to the will, the Fourth Respondent and all of the deceased’s children should have received certain benefits from the deceased’s “half share of the joint estate”.  The estate’s biggest asset was an immovable property and the Fourth respondent was registered as the owner of an undivided half share in it. A dispute arose between the Fourth Respondent and the Applicants about her right to the half share of the property. The applicants therefore challenged the constitutionality of section 7(1) of the Act as well as the fourth respondent’s half share in the property.

The Women's Legal Centre Trust was admitted as amicus curiae and argued that it was necessary to provide the widest possible protection to women married in terms of customary law and who have entered into polygamous marriages. WLC advocated for the equal treatment of wives who had entered into ‘old’ polygamous marriages Act with all other wives who had entered into ‘old’ and ‘new’ monogamous customary marriages, and ‘new’ polygamous marriages in terms of the Act.

The Court found that section 7(1) of the Act discriminated against wives who entered into ‘pre-Act polygamous marriages’ on the basis of marital status. The court stated that ‘the situation of wives in pre-Act polygamous customary marriages is one of lack of ownership and control of property within the marriage. In new polygamous customary marriages, the proprietary regime is either governed by a court-sanctioned contract in the conclusion of which wives participate as equal partners with the husband; or out of community of property and of profit and loss.’ The Court opined that by not providing women who had entered into ‘pre-Act polygamous marriages’ with more control or ownership over marital property, these wives were left ‘particularly vulnerable and at the mercy of husbands.’ The Court ultimately found that section 7(1) limits this class of wives’ right to human dignity and right not to be discriminated against unfairly.

In crafting its relief the Court found it best to allow Parliament time to come to an agreement on how to regulate the proprietary regime of polygamous customary marriages entered into before the commencement of the Act. The Court did however grant interim relief in order to provide ‘immediate succour to the vulnerable group of wives in pre-Act customary marriages. The Court’s interim relief was as follows: ‘a husband and his wives in pre-Act polygamous customary marriages must share equally in the right of ownership of, and other rights attaching to, family property, including the right of management and control of family property; and a husband and each of his wives in each of the marriages constituting the pre-Act polygamous customary marriages must have similar rights in respect of house property.’

The Constitutional Court held that the protections afforded by its order should be as extensive as possible. The order of invalidity was therefore declared to affect all pre-Act polygamous marriages, unless the transfer of marital property had already been effected, or the deceased’s estate already wound up.

On 20 April 2018 draft amendments to the RCMA were released for public comment. The deadline for submission of comments is 15 June 2018.

WLCT v President of the Republic of South Africa and Others (Case No: 22841/2014)

From 16 – 20 April 2018 the case for the recognition of Muslim marriages was heard in the Western Cape High Court. The April hearing followed on from the previous hearing that took place in August and September 2017, during which the Applicant (WLC), the Law Society of South Africa, the Muslim Assembly (Cape), the United Ulama Council of South Africa, and the South African Human Rights Commission put forward their arguments in favour of the recognition of Muslim marriages. We began our April hearing with arguments from the Commission for Gender Equality and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, who both also argued in favour of the recognition of Muslim marriages.

The parties opposing the recognition of Muslim marriages then began their arguments – these were the nine respondents, which included the non-state respondents Lajnatun Nisaa-il Muslimaat (Association of Muslim Women of South Africa), and United Ulama Council of South Africa; and the seventh amicus curiae, Jamiatul Ulama Kwazulu Natal. These three parties all presented arguments which sought to convince the court that in terms of the principle of separation of powers the Court does not have the power to direct Parliament to enact legislation that will recognise Muslim marriages. They also argued that granting any order that recognises Muslim marriages would infringe upon the religion.

The state respondents (counsel for the Minister of Justice and Constitutional Development, and the Minister of Home Affairs; and counsel for the President of the Republic of South Africa) argued that within our society religion should exist in a ‘Constitution free zone’ – the Constitution does not and should not apply to the rules, principles or actions prescribed by a religion. Additionally, the Court could not come to the aid of Muslim women (or the children born of their marriages) by granting an order that recognised their Muslim marriages because the power to do so lay solely with Parliament. The Court does not have the power to recognise their marriages. Counsel for the Speaker of the National Assembly and for the Chairperson of The National Council of Provinces argued that Parliament could not be instructed to enact legislation – the most that they are able to do is diligently and timeously consider and vote on Bills that are tabled before them.  

On the fourth and fifth days of the hearing, WLC replied to the arguments that were made before the Court. The reply addressed the Minister of Home Affairs’ contentions that further time was required to research and develop a legislative framework that would recognise all marriages, but made no provision for interim relief to women in Muslim marriages while such a legislative process was under way. Counsel for the Minister of Home Affairs and Justice conceded that it was unclear when the legislative process would yield results and whether the results would in fact be beneficial to Muslim women.

WLC also challenged the Minster of Justice’s contentions that a ‘Muslim Marriages Bill or any similar legislation only for Muslim personal and family law would not be permissible under the Constitution,’ questioned what these views by the two Ministers would mean for the recognition of Muslim marriages if it was left up to the Legislature. WLC emphasised the need for intervention by the Court as, twenty years after the initiation of the law reform process which sought to recognise Muslim marriages, no conclusion and no substantive redress has been provided for women who are married only in terms of Sharia law.

Counsel for the Applicants also made substantial arguments for why the non-recognition of Muslim marriages amounts to a violation of the constitutional prohibition against unfair discrimination. Simply put, our arguments in relation to equality were that:

‘As a result of the omission of the State to prepare and initiate legislation to recognise the consequences of muslim marriages, the current legislative scheme does not address the duty of support between spouses, the consequences of a marriage concluded in terms of Islamic law including matrimonial property, and of most significance the social and financial consequences of a divorce by means of Talaaq, including the distribution of property and the parental responsibilities in relation to children born of the marriage – for their care and contact. 

In this regard our law differentiates between, on the one hand, marriages in terms of Islamic law and, on the other, marriages concluded in terms of the Marriage Act and African Customary Law on the other. There is also differentiation with other religious marriages concluded in terms of Christian, Jewish or Hindu rites – which are generally concluded in terms of the Marriage Act. There is no rational basis advanced by the state for this differentiation.

Such differentiation amounts to discrimination against Muslim women married in terms of Islamic law on the grounds of their sex/gender and/or their religion and…indirectly historically on the basis of race.  It also amounts to discrimination against children who are born of such marriages on the grounds of religion.’

The matter was heard by the Honourable Justices Desai, Boqwana and Salie-Hlophe. Judgment in the matter has been reserved. We are now patiently awaiting judgment for this case, which has taken four years to reach this point, and for which the outcome will impact on thousands of women in the country.

For more details on the arguments that were made by the parties during the hearing, take a look at these media articles:

17 April 2018:

 

18 April 2018:

 

19 April 2018:

 

20 April 2018:

As the law stands, marriages in South Africa are only legally recognised if they are solemnised in terms of the Marriage Act, the Civil Union Act, or the Recognition of Customary Marriages Act. The impact of this is that religious marriages, including marriages solemnised in terms of Sharia Law, are not legally recognised under the current legislative framework. As a consequence of this, Muslim women and their children are unfairly discriminated against because they are not afforded the same legislative protections as other women who enter into civil marriages, customary marriages, or civil unions. This discrimination is particularly pronounced when the marriage is dissolved, either by death or divorce, because it is at these moments when Muslim women come face-to-face with the consequences of having been a party to a marriage that was not legally recognised. If they do attempt to seek assistance from the courts, they have no choice but to engage in a long, complicated, and expensive litigation process simply to obtain some form of relief, be it in the form of maintenance, or custody of any minor children. During the litigation process, their cases will be heard independently of any legal framework that is designed specifically to recognise and regulate their marriages.

With this lack of legal recognition comes the widely debated position that Muslim women are being discriminated against, which contravenes the Bill of Rights in the Constitution that provides for fundamental rights. This position is founded on the basis that Muslim women are denied their constitutional rights to equality before the law, human dignity, freedom and security of the person, freedom of religion, belief and opinion, and the right not to be deprived of property arbitrarily. Muslim women are negatively impacted in the following ways:

  1. They are not afforded the right to be included as a spouse for the purposes of the repudiation of benefits in terms of the Wills Act;
  2. Muslim women are not entitled to a decree of divorce or a transfer of assets in terms of the Divorce Act;
  3. They face ongoing challenges when enforcing maintenance orders, both during and after divorce; and
  4. Their access to pension benefits is negatively affected upon the dissolution of their marriage.

It is appropriate to note that it is possible for those who marry according to Sharia Law to enter into a civil marriage in accordance with the Marriages Act as well, and thereby to be afforded the legal protections it provides. However, this option is unavailable to Muslim women who are party to a polygamous marriage. Polygamous marriages are not recognised by the Marriages Act. The only legal framework that permits and protects polygamous marriages is the Recognition of Customary Marriages Act. Polygamous marriages entered into in terms of Sharia Law, and therefore outside the provisions of the Recognition of Customary Marriages Act, are not afforded any legal protection. This discriminates against Muslim women in polygamous marriages.

Likewise, while Imams can become Marriage Officers, there are relatively few that have registered as such. In most circumstances when a couple wishes to marry according to Sharia Law, and have the marriage officiated by an Imam, their marriage will not be legally recognised. Therefore, in order to be recognised and legally protected, those who have entered into a marriage according to Sharia Law will be expected to conduct another marriage ceremony in terms of the Marriages Act. This is not only an affront to the legitimacy of their religious marriage, but is something that Muslim women often only learn when they are seeking the assistance of the courts, and realise too late that they are not legally protected. As a result, women in Muslim marriages suffer disproportionately because they are not afforded adequate protection under the existing legal framework. 

This suffering continues despite the existence and operation of religious tribunals and decision-making bodies because they lack the enforcement powers that the courts possess to ensure compliance with their rulings. Even more, men are typically afforded preference under Sharia Law in divorce proceedings.

The Women’s Legal Centre, along with other interested parties, are concerned about the disproportionate discrimination that Muslim women face as a result of South Africa’s existing legal framework regulating marriages. In light of such, the WLC has, in the public interest, launched an application in the Western Cape High Court. The WLC seeks a declarator by the High Court legally recognising Muslim marriages. In order to be effective this declarator will need to be more than a symbolic measure – it will need to provide for a remedy in accordance with the recognition. One possible outcome of the case may be a ruling that the ‘legislature be afforded the opportunity required to develop legislation regulating and recognising religious and cultural marriages.’ The legislature would do so by passing new legislation that cures the unconstitutional position, or by amending existing legislation.

Should legal recognition be declared, it is likely that the government, in determining the appropriate legislative mechanism to be implemented, would be influenced by international best practice. Even with this in mind though, it is difficult to predict which legislative framework will be deemed most appropriate given that there are a myriad of international experiences from which to draw. Irrespective of the legislative mechanism adopted by a government, the legal recognition of the marriages is the necessary first step. After which, there are many ways a government may choose to protect and fulfil the rights which are inherent upon legal recognition.

The importance of legally recognising Muslim marriages is undoubtedly significant. This is principally because it would afford Muslim women, and their children, the same protections as every other married person, and of which they have been deprived on the basis of their religion. Legislating for the recognition and regulation of their marriages would therefore be a significant milestone in our country’s quest for substantive equality for all because it would align our marriage law with the rights enshrined in the Constitution. Practically, this would mean that Muslim women would no longer have to fight for the legal recognition of their marriages. As it stands, not everyone has the resources to pursue their rights through piecemeal litigation. Incremental recognition has been afforded in the following circumstances: a Muslim marriage has been recognised as a valid contract, the terms of which the court can enforce; a wife in a de facto monogamous Muslim marriage was entitled to the award of damages for loss of support upon the death of their spouse; a spouse in a Muslim marriage was able to inherit from her deceased husband and bring a maintenance claim against his estate; a wife, whether married in a monogamous or polygamous marriage, was entitled to maintenance during their marriage; wives to a polygamous marriage have been able to claim maintenance following the death of their husband; a wife was awarded interim maintenance as a contribution towards costs in a divorce action; and a wife was allowed to claim maintenance as well as a share of her former husband’s pension. If the Women’s Legal Centre is successful in their case before the High Court, and legal recognition is declared for marriages solemnised in terms of Sharia Law, a consequence will be that women in Muslim marriages will no longer need to approach the courts for relief. The proprietary consequences of their marriages will be decided between the parties beforehand, or by the legislation. If they do need to approach a court to resolve a dispute, then they would no longer need to first prove the existence of their marriage.

On 7 and 14 March 2018 the Women’s Legal Centre hosted two workshops at the Scalabrini Centre in Cape Town. The purpose of the workshops was to educate women on issues that disproportionately affect women in South Africa. The women who attended the workshops were predominantly refugees and asylum seekers who make use of Scalabrini’s services, and who required assistance with, or more knowledge of issues affecting women in our society. We aimed to educate them on the legal avenues available to them for the specific topics focused on, and raised during the workshops.

The topics were chosen based on feedback received by Scalabrini from women regarding specific issues they wished to know more about. On 7 March the topic for discussion was domestic violence and the process one undergoes when obtaining a protection order. On 14 March we focused on the procedure to follow when applying for a divorce, and the processes of applying for a spousal maintenance order or child maintenance order. The women were given an opportunity to ask questions during the workshops, and encouraged to approach our legal advisors individually after the presentations were complete so they could discuss personal matters. In total approximately 30 women attended both of the workshops.

In March, the Women’s Legal Centre (‘WLC’) made a submission on the amendment of the Civil Union Act 17 of 2006 (‘The Act’). The Act legalised same sex marriage in South Africa by allowing two people, regardless of their gender, to form either a marriage or a civil partnership. The Act was a consequence of the judgment of the Constitutional Court in the case of Minister of Home Affairs v Fourie, which found it unconstitutional for the state to provide the benefits of marriage to heterosexual couples but deny them to homosexual couples. Yet despite this finding, the Act leaves room for discrimination against same sex couples.

Section 6 of the Act provides that a marriage officer “may in writing inform the Minister [of Home Affairs] that he or she objects on the grounds of conscience, religion and belief to solemnising a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnize such civil union.” Section 6 specifically allows a marriage officer to object to, and refuse to solemnise the civil union of a same sex couple. This section reinforces discrimination against same sex relationships, which is exactly what the Constitutional Court ordered the State to address in Fourie. This discrimination cannot be permitted as it perpetuates discrimination based on sexual orientation.

The reasoning for section 6 stems from the right to freedom of religion guaranteed in the Bill of Rights, and the idea that officers have a right to deny performance of civil unions on the grounds that marrying homosexual couples would oppose their religious beliefs. However, because marriage officers act as representatives of the State, so the reliance on the exercise of the right to freedom of religion is misplaced.

Their representative capacity does not permit marriage officers to discriminate against same sex couples by relying on their freedom of religion.

Section 6 is inherently discriminatory, and the State has a clear Constitutional obligation to protect same sex couples from discriminatory treatment. By choosing to accept positions as agents of the State, marriage officers do not have the right to opt out of this responsibility to protect same sex couples against discrimination. There is an obligation on the state and public services to remain neutral in the provision of services to citizens.

The WLC strongly opposes Section 6. We argue that by allowing marriage officers to exempt themselves from performing same sex marriages, South Africa reinforces problematic notions about the normality of opposite sex marriages, and continues to differentiate between heterosexual and homosexual relationships. Within South Africa’s patriarchal society, the implication of the opportunity to conscientiously object is that lesbian women of color, who face the largest amounts of marginalisation, are most deeply affected. The WLC made its submission to ensure that the State considers this fact, and to make clear the specific levels of victimisation that this group faces. In order for South Africa as a nation to fulfill the Constituional values and ideals of equality, dignity, and freedom, and to protect those most vulnerable to violence and discrimination, the State itself must embody and promote these ideals and values. A step towards doing so would be the repeal of section 6 of the Civil Union Act.

Prior to the Civil Union Act (‘CUA’),which recognized the right to marry for same sex couples in South Africa, same sex couples were denied, among other things, the rights of succession as provided for in the Intestate Succession Act (‘ISA’). The ISA provides that a surviving spouse may inherit from the intestate estate of the deceased. Without recognition as a ‘surviving spouse’ in terms of the ISA, the surviving member of a same sex domestic partnership had no right to the property of their deceased partner, regardless of whether or not the property was shared. In order to protect homosexual couples from this discrimination, which they faced because they were not yet able to marry, the Courts ruled in Gory v Kolver that the provisions of the ISA must also apply to same sex domestic partnerships where the partners “have undertaken reciprocal duties of support.’

Following the enactment of the CUA in 2006, questions were raised as to whether or not Gory still applied, as the ISA’s application towards “spouses” now included heterosexual and homosexual unions in terms of the CUA, as well as same sex domestic partnerships. In the 2016 judgment of Laubscher N.O. v Duplan,  the Constitutional Court ruled that Gory still applied. The Court held that while the CUA purported to legalise homosexual marriage, and in so doing extended the protection of the ISA to same sex spouses, Gory’s inclusion of members of same sex domestic partnerships within the ISA still applied. It was preferable to provide increased inclusion under the law for same sex unions than to strip unmarried same sex domestic partners from their inclusion in the ISA.

South Africa took a huge step forward when same sex marriages were legalised, however marriage itself is still a privileged form of relationship. Domestic partnerships are not afforded the same legal protections as marriages or civil unions. The Gory ruling was progressive in this regard because it allowed same sex domestic partnerships to be afforded rights in terms of the ISA, and so more domestic partnerships had their joint estates protected by the law. However, although same sex domestic partnerships are recognised in the ISA, heterosexual domestic partnerships are not recognised. This is because the Duplan judgment distinguished between the rights of unmarried homosexual partners and unmarried heterosexual partners. According to the Court’s finding in Volks NO v Robinson, heterosexual domestic partnerships are not extended the same benefits as married couples.

Volks decided that the appellant, a surviving domestic partner who had lived with the deceased for 12 years in a heterosexual domestic partnership, did not have the right to claim maintenance in terms of the Maintenance of Surviving Spouses Act. Maintenance is typically afforded to “survivors” of marriages, however the Court found that the surviving domestic partner of a heterosexual domestic partnership was not a “surviving spouse” for the purposes of the Act.

The facts of Volks differed from that of GoryVolks dealt with a posthumous duty on the deceased’s estate to maintain a spouse where a will had been provided, whereas Gory dealt with intestate succession – the deceased died without leaving behind a valid will. The judges in Volks held that the appellant’s right to claim maintenance was invalid because it would the provisions of the will, and thus freedom of testation. In Gory, however, this factor was irrelevant. At the time of Gory, same sex surviving partners of domestic partnerships were excluded from the protections provided by the ISA, and from marital benefits. Since Gory dealt only with same sex domestic partnerships, the remedy granted to the appellant in that matter did not extend to include heterosexual domestic partnerships. So, surviving partners of heterosexual domestic partnerships are not protected by the ISA or the Maintenance of Surviving Spouses Act.

This lack of protection for heterosexual domestic partnerships is problematic. In most domestic partnerships couples share their homes, appliances, incomes, and various other forms of property. If heterosexual couples in domestic partnerships who support each other in this regard do not marry (as is increasingly common) they are at risk of losing their right to the shared estate if one member dies without a will. Many people do not execute a will, and according to the ISA where a person dies without a will then their property will devolve to their family, which includes the ‘surviving spouse,’ but not a heterosexual domestic partner.

In response to the discrimination experienced by heterosexual domestic partnerships, and following Volks, the Domestic Partnership Bill (‘the Bill’) was drafted and published for comment by the Department of Home Affairs on 14 January 2008. The overarching objective of the Bill was ‘[t]o provide for the legal recognition of domestic partnerships; the enforcement of the legal consequences of domestic partnerships; and to provide for matters incidental thereto.’It is specifically noted in the Bill that Section 9(1) of the Constitution provides that everyone is equal before the law and has the right to equal protection and benefit of the law but that ‘there is currently no legal recognition or protection for opposite-sex couples in permanent domestic partnerships.’ The overall objective of the Bill is therefore to ensure ‘the rights of equality and dignity of the partners in domestic partnerships and to reform family law to comply with the applicable provisions of the Bill of Rights’ through recognition, regulation, and protection. Furthermore, the Bill intended to extend the legal definition of “spouse” to include registered domestic partners. This would afford domestic partners protection not only within the context of the Bill but under other legislative mechanisms such as the ISA. However, these protections are yet to be realised because the Bill has not been implemented, despite the ten years that have lapsed since it was first published for comment.

It is unclear why there has been such an extensive delay in enacting the Bill. There was initially speculation that the delay had been a consequence of the need to set up registration infrastructure to facilitate the proper implementation of the Bill. But, it has now been ten years since the initial publication of the Draft Bill, which makes this an unlikely reason in the circumstances. In the meantime, the principle of universal partnership acts as somewhat of an aid to heterosexual domestic partners. It is a legal remedy available to them if they are able to prove the existence of a tacit universal partnership. Unfortunately, proving so is typically an expensive and difficult exercise, and is usually only possible if there has been a contract drawn up between the domestic partners that serves to prove the existence of the relationship, and which governs the terms of the relationship.

The Women’s Legal Centre is concerned with the fact that women in particular are disadvantaged by the failure to enact the Bill. Individuals who lose their life partner unexpectedly, through death or separation, will struggle to obtain a right to the shared property. In South Africa, men are more likely to be the primary breadwinners and most, if not all, property is likely to be registered in their name. This reality sees women primarily carrying the burden of having to fight for their rights to their homes, cars, and other assets when their relationships are not legally recognised. The Women’s Legal Centre, being dedicated to providing marginalised women in South Africa with access to justice, takes issue with this system of exclusion. WLC strives towards achieving progress in South African law that will protect all forms of relationships, which include heterosexual domestic partnerships. Hopefully the Bill will soon be revisited so that heterosexual domestic partners may enjoy equality and dignity in equal measure to other legally recognised partnerships, unions and marriages.

CAPE TOWN:

Visit from Legal and Human Rights Centre, Tanzania: 13 March

On 13 March 2018 we were visited by two delegates from the Legal and Human Rights Centre (LHRC) based in Tanzania. Ms Mauya and Ms Sillayo visited WLC for the purpose of learning more about our organisation and the ways in which we run a successful non-profit legal centre.

Visit from Delegates from USA Embassy: 14 March

On 14 March 2018 we were visited by two delegates from the USA Embassy, situated in Pretoria. The Embassy’s Deputy Political Chief visited WLC in order to hear more about the Centre and the work that we do to further women’s rights in South Africa.

 

Visit from Eastern Washington University: 26 March

On 26 March 2018, twenty students from Eastern Washington University, who were in Cape Town for a 10-day intensive programme which focused on Sociology and comparative Criminal Justice, visited WLC. The students were able to hear a bit about the cases that WLC is currently litigating, and planning to litigate. We were also able to discuss some of the similarities and differences in issues being faced by South African women and women in the US context.

JOHANNESBURG:

Free State Women’s Rights Workshop:

On 7 March 2018 WLC hosted a workshop in the Free State for sex workers. The topics covered during the workshop were put forward by the sex workers themselves as issues that they wished to discuss. They included: 1. Client abuse and decriminalization;
2. Police harassment;
3. Rape and police reporting;
4. Safety of sex workers and the need to collectively organize;
5. Drug use and its implications on sex work;
6. Domestic violence and how to break the violence chain in the home;
7. How to apply for a protection order.
In addition, a demonstration was given on how to use female condoms as a means of protection.
We welcomed the opportunity to engage with sex workers during a month that celebrates both International Women’s Day (8 March) as well as International Sex Workers’ Rights Day (3 March).

Human Rights Festival: 23-25 March

From 23-25 March, WLC participated in the Human Rights Festival at Constitutional Hill. The Festival was organised to commemorate Human Rights Day. WLC, along with other civil society organisations, were there to discuss and celebrate social justice work and upholding the principles of the Constitution

Eskom Sexual Harassment Presentation: 9 April

On 9 April 2018, WLC presented at one of Eskom’s Roundtable discussions on Workplace Sexual Harassment as part of the Eskom Women Advancement Programme. WLC was able to provide some insight into what the law says in relation to sexual harassment in the workplace, and to provide some examples of cases that WLC has dealt with in relation to this issue.

Technical Committee Meeting: National Adolescent Sexual and Reproductive Health and Rights Framework Strategy – 18-20 April

From 18-20 April 2018, WLC attended the Fourth Technical Committee Meeting for the National Adolescent Sexual and Reproductive Health and Rights Framework Strategy in Pretoria. A key outcome of the Technical Committee was to bring together stakeholders from government, civil society, development agencies, academia, and research institutions to discuss the initiatives underway according to five key priority areas. The three day meeting included the sharing of progress on the five key priority areas by the lead departments, the sharing of information on new policy initiatives, as well as presentations by civil society organisations.

Teboho Mashota We bid farewell to one of our Johannesburg office staff members, Teboho Mashota. Teboho has been with the WLC as a legal advisor for the past four years.

The management and staff of WLC wish her well in her future endeavours and thank her for the work that she did for the Centre.

Nasreen Solomons In March, WLC’s Cape Town office welcomed Nasreen Solomons as a part-time researcher. Nasreen obtained a BA from the University of Cape Town majoring in English, History, and Philosophy.

In 2011, she studied an Honours degree in Historical Studies, during which she tutored and worked as a research assistant in the department. She went on to obtain an LLB from UCT in 2015, after which she served her contract of community service with the Legal Resources Centre, as a Bertha Justice Fellow, at their offices in Cape Town. She was admitted as an attorney of the High Court of South Africa in February 2018, and is currently doing an LLM by dissertation at UCT. Nasreen is also a tutor for the Law of Property, and the Law of Succession in UCT’s Private Law Department.

Jessica Wakelam We have welcomed a new intern to our Cape Town office, Jessica Wakelam. She has joined us from Australia, and will be with us up until the end of June. She is assisting us with research for our current and upcoming cases.

Jessica has joined us through the University of Adelaide’s Human Rights Internship Programme. She has obtained her Bachelor of International Development from the University of Adelaide in Adelaide, South Australia and is now in her penultimate year of study for her Bachelor of Law degree. Jessica has always been passionate about Human Rights, and was privileged enough to be selected to study ‘International Law and Human Rights’ at Masaryk University in the Czech Republic as part of an international exchange programme.
Aspiring to give back to her local community and grow her skills, she volunteers her time at her local Community Legal Service Centre and assists the solicitors in the provision of legal advice and representation. After obtaining her Bachelor of Law she intends to obtain employment and complete her Master’s in International Development so that she may pair her interests to best effect positive rights-based change.

Thank You to our Donors and Supporters

We wish to extend our sincere gratitude to Heinrich Böll Stiftung Southern Africa and to our generous anonymous donors for their commitment and support for the work of the Centre.