Women and Justice: Keywords

The defendant employed the plaintiff as a librarian in 1995, but dismissed her from her position in 2000 because she married a polygamist. The plaintiff challenged the dismissal as unfair and asked for an order that her former employer, the defendant, pay compensation and long service pay. In siding with the plaintiff, the Court considered the anti-discrimination provisions of the Constitution, given that the facts underlying the offence took place prior to the Employment Act coming into effect. The Court concluded that the termination of the plaintiff qualified as discrimination. The reasoning underlying the termination effectively prevented the plaintiff from marrying a man of her choice, and from engaging in economic activity through employment, both fundamental constitutionally-protected rights. The Court emphasized that it did not matter that the defendant’s conditions of service prohibited polygamous marriages among its workforce, as such a prohibition contravened the Constitution. In closing, the Court ordered the parties to produce documents and other material relevant to the assessment of compensation for the plaintiff.

The issue in this case was to what extent, in Xitsonga customary law, the absence of a first wife’s consent to her husband’s subsequent polygamous marriages affects the validity of those marriages. In this case, the applicant entered into a customary marriage with the deceased in 1984. The applicant objected to the respondent’s claim that she entered a valid customary polygamous marriage to the deceased in 2008, 13 months before the deceased’s death. The Court held that, in accordance with its obligation to develop living customary law in a manner consistent with the Constitution’s protection of human dignity and equality, Xitsonga customary law had to be developed to include a requirement that the first wife’s consent is necessary to validate any of her husband’s subsequent customary marriages. Guided by this principle, the Court held invalid the marriage of the decedent to the respondent.

The issue in this appeal was whether traditional leaders of a community can develop their customs and traditions to promote gender equality in the succession of traditional leadership in accordance with the Constitution. The dispute was about the right to succeed as Chief to the Valoyi community in Limpopo, where the Chief’s daughter, Ms. Shilubana, could not succeed to the Chief position after her father’s death because the principle of male primogeniture governed succession. Her uncle succeeded the deceased Chief instead, but, during his reign, he and the Royal Family unanimously resolved to confer the chieftainship to Ms. Shilubana when the current Chief died because it aligned with the new Constitution. This was also communicated to and accepted by the Commission for Traditional Leaders of the Northern Province. When Ms. Shilubana’s uncle, the Chief, died, a dispute arose between Ms. Shilubana and the Chief’s son as to who should succeed to Chieftainship. The Court held that where there is a dispute over the legal position under customary law, a court must consider both the traditions and the present practice of the community. If there is a new development within the community, the court must strive to recognize and give effect to that development, to the extent it is consistent with protecting rights. The Court found that the customary law of the Valoyi community did not permit a woman succeeding without amendment, but that the Royal Family had power to amend the customs and that their actions represented a development of law consistent with the spirit of the Constitution. Thus, it was a valid legal change, vesting Ms. Shilubana with the right to succeed to Chieftainship.

This case concerns the criteria for what constitutes a valid customary marriage. In question was whether or not the respondent was precluded from marrying another as a result of the prior customary marriage alleged. The case arose after the complainant filed a caveat against the issue of a registrar’s certificate in respect to an alleged ordinance marriage between the respondent and another woman. The complainant claimed that she was married to the respondent under customary law at a ceremony held in March 1958 at which both her family and the respondent’s family were present and that was presided over by the head of the larger family to which both of the families belong; that the ceremony called “fiapun” in Adangbe was performed; and that the respondent’s family provided drinks and a customary fee for the marriage. Therefore, the complainant claimed that the respondent was precluded under Ordinance from marrying another. The respondent denied that the ceremony held in March 1958 constituted a lawful marriage under customary law and further maintained that whatever relationship subsisted between him and the complainant was determined by their subsequent separation. The Court confirmed that the essential pre-requisites laid out in Yaotey v Quaye. It also held that consent by the two parties’ families may be actual or constructive. The Court held that the unrefuted evidence presented by the complainant of the ceremony and cohabitation contained all the essential elements of a valid customary marriage. The Court also held that since the marriage is as much the families’ concern as it is the concern of the two individuals, the agreement of the parties to live apart does not affect their legal status, and the marriage will subsist until the marriage is dissolved by the family. The Court confirmed that a marriage under the Ordinance and a customary marriage was mutually exclusive, and the existence of one precluded the other. The complainant’s application for prohibition of the Registrar of Marriages from issuing the certificate was sustained, as she and the respondent were still married under customary law.

The applicant appealed a decision denying her a protection visa. The applicant demonstrated evidence that if she returned to Uganda, she would be forced to undergo FGM. The applicant was a member of the Sabiny tribe, meaning her father’s family had the right under Ugandan law to take her away from her mother and compel her to obey traditional practices, including FGM. She further testified that if she returned to Uganda there would be a risk of abuse as she was a Christian, which was not accepted in her family village. Furthermore, when she was 12, her family found a potential husband for her, a witchdoctor who believed in Satan and professed sacrificing people to achieve a particular objective. She was therefore afraid that if she returned to Uganda, she would be forced to marry this individual, who believed that sacrificing people could bring him power and money. The tribunal found that the applicant was a person to whom Australia owed protection obligations.

The deceased was married to the second and third applicant under Islamic law. The marriage of the deceased and the third applicant was entered into before the marriage between the deceased and the second applicant. However, the deceased and the second applicant entered into a civil marriage to qualify for a home loan. Following the death of the deceased, The Registrar of Deeds, Cape Town, refused to register the title deed to the family home in the name of the third applicant. The Registrar’s refusal was premised on the meaning of the term “surviving spouse” as contemplated in terms of section 2C(1) of the Wills Act 7 of 1953 (the “Wills Act”). According to the Registrar, the only recognised surviving spouse of the deceased is the second applicant as they entered into a civil marriage. The Court declared section 2C(1) of the Wills Act unconstitutional as it does not recognise the rights of spouses married under Islamic law nor multiple female spouses married to a deceased testator in polygynous Muslim marriages.

Die oorledene is volgens die Islamitiese Wet met ‘n tweede en derde applikant getroud. Die huwelik van die oorledene en die derde applikant is aangegaan voor die huwelik tussen die oorledene en die tweede applikant. Die oorledene en die tweede applikant het egter ‘n siviele huwelik aangegaan om te kwalifiseer vir ‘n huislening. Na die afsterwe van die oorledene het die Registrateur van Aktes, Kaapstad, geweier om die titel-akte van die gesinshuis in die naam van die derde aansoeker te registreer. Die weiering van die registrateur is gegrond op die betekenis van die term “oorlewende gade” soos beoog in terme van artikel 2C(1) van die Wet op Testamente 7 van 1953 ( die “Testamente Wet”). Volgens die registsrateur is die enigste erkende oorlewende gade van die oorledene, die tweede aansoeker aangesien hulle ‘n siviele huwelik aangegaan het. DIe hof het artikel 2C(1) van die Wet op testamente ongrondwetlik verklaar aangesien dit nie die regte van gades wat kragtens die Islamitiese wet getroud is, erken nie asook nie veelvuldige vroulike eggenote wat met ‘n oorlede testateur in ‘n poligamiese moslemhuwelik verbind is nie.

The plaintiff petitioned to bring three consolidated actions directly to the Constitutional Court. They sought a declaratory order that the President recognize Muslim marriages as valid for all purposes in South Africa. The Constitutional Court dismissed the plaintiffs’ plea for direct access and instead directed them to the High Court. The High Court held that the State’s failure to enact legislation recognising religious Muslim marriages violated the rights of Muslim women based on religion, marital status, gender, and sex. The court directed the President, Cabinet, and Parliament to prepare and bring into operation legislation to recognise marriages performed in accordance with Sharia law.

Die eiser het 'n versoek om drie gekonsolideerde aksies direk na die Konstitusionele Hof te bring. Hulle het 'n verklarende-bevel aangevra dat die President, Moslem-huwelike as geldig vir alle doeleindes in Suid-Afrika erken. Die Konstitusionele Hof het die eisers se pleit vir direkte toegang van die hand gewys en het hulle eerder aan die Hooggeregshof verwys. Die Hooggeregshof het bevind dat die staat se versuim om wetgeving te aanvaar wat erkenning gee aan huwelike wat godsdienstig Moslem is, die regte van Moslemvroue gekend het op grond van godsdiens, huwelikstatus, geslag en seks. Die hof het die President, die Kabinet, en die Parlement oprag gegee om wetgeving voor te berei en in werking te stel om huwelike wat volgens die sharia-wetgewing uitgevoer is, te erken.

The appellant was convicted of (i) aiding the commission of female genital mutilation (“FGM)” on several girls, (ii) failing to report the commission of FGM, and (iii) allowing her premises to be used to perform FGM. She pled guilty to the crimes and was sentenced to pay a fine of Kshs. 200,000 (or 3 years of imprisonment if she defaulted on the payment). On appeal, she argued that the sentence was overly harsh and oppressive because she was a single mother of three children. Justice M. Muya upheld her sentence, as it was the minimum allowed under the Female Genital Mutilation Act. The Justice in this case noted that within this case “lies the clash between traditional values and the law of the land.” Even though the appellant was abiding by a customary practice, it was in violation of Kenyan criminal law, and thus the appellate court upheld her sentence.

The executor of the estate of a deceased man (the appellant) brought an application to the High Court for a declaration that the civil marriage to the respondent was bigamous and invalid because of a number of pre-existing customary marriages between the deceased and three other women. The deceased considered the marriages over when the women left him and never returned. The deceased had executed a will and later four codicils. The High Court found that the respondent’s civil law marriage was a lawful marriage in community of property, and the will was declared null and void. The appeal is of the order of the High Court. The Supreme Court heard testimony from one of the wives married to the deceased under customary law and from experts in Swazi law and custom relating to the dissolution of customary marriages. The Supreme Court found in favour of the appellant. The decision of the High Court was set aside and the Master of the High Court was to appoint a suitable and proper person to administer the deceased estate. This case is important as it illustrates the importance and status of Swazi law.

The petitioner, Senate Masupha, is the firstborn, female child of a late principal Chief. Because there were no firstborn males in his immediate family, upon his death, the late Chief’s wife and the petitioner’s mother was appointed as a caretaker Chief in accordance with the Chieftainship Act. Following the death of the late Chief’s wife in 2008, the late Chief’s younger brother instituted a claim for inheritance of the chieftainship before a magistrate’s court, which was challenged by the late Chief’s son from a second wife, as well as that son’s mother. The petitioner, who had not been included in the proceedings before the lower court, subsequently intervened to request a change of venue to the Constitutional Court, so that she could challenge the constitutionality of the provision in the Chieftainship Act under which she was precluded from seeking to succeed to the chieftainship, as she was the first-born child. Masupha argued that the Chieftainship Act does not necessarily preclude her from inheriting the chieftainship and that, even if the Chieftainship Act in fact precludes her from doing so, it should be struck down, because it violates multiple provisions of the Constitution. The High Court highlighted the fact that, in acceding to CEDAW, Lesotho specifically excluded itself from the provisions of that Convention in so far as it concerns the customary practices relating to succession to the throne and to chieftainship. It therefore dismissed Masupha’s petition seeking to declare the Chieftainship Act provision preventing female offspring from inhering chieftainships discriminatory and therefore unconstitutional, finding that the Chieftainship Act was not discriminatory, because it allows the senior wife to inherit the title as a caretaker, if there are no living first-born males from any of the deceased’s marriages. The High Court concluded that, when a wife succeeds her husband as a caretaker, the right to inherit reverts back to the male line of the family upon the death of the female chief. The judgment was appealed to the highest court in the country, the Court of Appeal, which affirmed the High Court’s decision and upheld the customary law effectively denying women the ability to succeed to chieftainship.

Edith Mmusi and her sisters, all over 65 years of age, brought a case against their nephew, Molefi Ramantele, who claimed to have rightfully inherited the home that was occupied by Mmusi and her sisters and tried to evict them. The sisters contested the eviction, arguing that they had paid for the home’s upkeep and expansion costs. The applicable customary law, that of the Ngwaketse tribe, dictated that the family home of a deceased individual was to be reserved to the last born male child. The rest of the property was to be divided among the children, regardless of gender. The Lower Customary Court found in favor of the nephew; the Higher Customary Court held in 2008 that the home belonged to all of the children; and the Customary Court of Appeal, to which both parties appealed, held that the home should be inherited by the nephew. The High Court noted that the issue of law being considered was whether the Ngwaketse customary law, to the extent that it denied the applicants the right to inherit the family residence intestate, "solely on the basis of their sex, violate[d] their constitutional right to equality under section 3(a) of the Constitution. In 2012, the High Court awarded the home to the sisters, ruling that the local customary laws prioritizing male inheritance were not in keeping with the promise of gender equality enshrined in the Constitution of Botswana and in international conventions such as CEDAW, thereby recognizing for the first time the right of women in Botswana to inherit property. In 2013, the Court of Appeal upheld the decision of the High Court, observing that “Constitutional values of equality before the law, and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.” This case was a landmark case that effectively ended the patriarchal inheritance system in Botswana. The High Court decision is available here.

Ms. Mukinga and Mr. Fuller were married under Lozi customary law, although there was no formal marriage. A Lobola was paid, and the two began living together. She became pregnant, but miscarried. Mr. Fuller also took Ms. Mukinga to South Africa to meet his family. They opened a joint bank account and purchased a stand, held in Mr. Fuller’s name, to operate a company they formed together. They later rented the property to a thirdparty. Eventually the marriage broke down, and Ms. Mukinga, claiming that she had an interest in the property through marriage, brought an action to recover her share of the rental income and to force the sale of the stand. The lower court held that because the property documents were in Mr. Fuller’s name and there was no marriage certificate, and therefore no marriage, Ms. Mukinga had no interest in the property. She appealed to the High Court, which upheld the lower court’s decision and prompted her further appeal. Although the Supreme Court dismissed her claim on procedural grounds (for commencing the action with an improper summons), it overturned the High Court’s holding that no marriage existed. Given the customary Lobola payment and co-habitation, it found that a valid Lozi marriage was consummated. Additionally, the Supreme Court noted that couple opened up a joint bank account rather than a business account for their joint company. Therefore, despite the absence of an official marriage certificate, the Supreme Court held that the two were married under Zambian law and that Ms. Mukinga had established a legal interest in the property.

A parliamentary minority requested that the Constitutional Court declare unconstitutional a Ministry of Health decree that determined the availability of family planning methods and permitted distribution of emergency contraception by national health centers. The constitutional court noted that the “right to life” is fundamental under the Chilean Constitution. It rejected scientific arguments that emergency contraception did not affect the life of a conceived but unborn embryo. In a dissenting opinion, one judge noted that the rights protecting the reproductive rights of women were enshrined in CEDAW in conflict with the Constitutional Court’s decision. The Constitutional Court’s decision did not prevent all distribution of emergency contraception in Chile, but banned it from being distributed by clinics and hospitals that are part of national health system. The constitutional court decision was effectively overruled in January 2010 by Law No. 20.418, promulgated by President Bachelet, which permitted distribution of emergency contraceptive pills in both public and private health centers, including to persons under 14 without parental consent. The law also requires high schools to enact sexual education programs.

Una minoría parlamentaria solicitó a la Corte Constitucional que declare inconstitucional un decreto del Ministerio de Salud que determinaba la disponibilidad de métodos de planificación familiar y permitía la distribución de anticonceptivos de emergencia por los centros nacionales de salud. El tribunal constitucional señaló que el “derecho a la vida” es fundamental en la Constitución chilena. Rechazó los argumentos científicos de que la anticoncepción de emergencia no afecta la vida de un embrión concebido pero no nacido. En una opinión disidente, un juez señaló que los derechos que protegen los derechos reproductivos de la mujer estaban consagrados en la CEDAW, en conflicto con la decisión del Tribunal Constitucional. La decisión de la Corte Constitucional no impidió toda la distribución de anticonceptivos de emergencia en Chile, pero prohibió su distribución en clínicas y hospitales que forman parte del sistema nacional de salud. La decisión del tribunal constitucional fue efectivamente cancelada en enero de 2010 por la Ley No. 20.418, promulgada por la presidenta Bachelet, que permitía la distribución de píldoras anticonceptivas de emergencia en centros de salud públicos y privados, incluso a personas menores de 14 años sin el consentimiento de los padres. La ley también requiere que las escuelas secundarias promulguen programas de educación sexual.

The applicants are the sons and wife of the deceased and are seeking to apply the Kamba customary law that would not permit a daughter to inherit her father's estate if she is married. The Court held that the Kamba customary law is discriminatory insofar as it seeks to prevent a married daughter from inheriting her father's estate under the Succession Act. It specifically noted that although the Kenyan constitution specifically provides for customary law to take precedence over the Constitution in matters dealing with property inheritance after death and other personal issues, Kenya is also obligated to end discriminatory practices under CEDAW and the UDHR.

In recognition of the inherent dignity and worth of each human, Article 12 requires that the State and all persons recognize and protect human rights and afford the fullest protection to the rights and views of all individuals, groups, and minorities. All persons have equal status before the law. Limitations of rights are only justifiable insofar as they ensure peaceful human interaction in the context of an open and democratic society. Article 13 requires the State to actively promote the welfare and development of the people by affirmatively adopting legislation and policies to achieve gender equality. This requires: (i) women’s full participation in all spheres of society with opportunities equal to men; (ii) the implementation of nondiscrimination principles and other measures; and (iii) the implementation of policies addressing domestic violence, personal security, maternity benefits, economic exploitation, and rights to property, among other relevant social issues. Article 22 mandates that all members of a family shall enjoy equal respect and shall be protected under law against all forms of neglect, cruelty or exploitation. No person shall be forced to enter into any marriage, and no person over the age of 18 can be prevented from entering into marriage. All provisions of this section apply to civil, customary, and other forms of marriage. Article 24 specifically guarantees that women are entitled to full and equal protection of law, and have the right not to be discriminated against on the basis of gender or marital status. This includes the following rights: (i) equal rights under civil law, including equal capacity in the realms of contracts, property, custody, decision-making regarding children, and acquisition and retaining of citizenship and nationality; and (ii) upon the dissolution of marriage, entitlement to fair disposition of jointly held property and to fair maintenance. Further, any laws that discriminate against women are invalid and legislation must affirmatively be passed to eliminate customs and practices that discriminate against women. This affirmative requirement particularly applies to practices of: sexual abuse, harassment, or violence; discrimination in work, business, or public affairs; and deprivation of property (inherited or otherwise). Article 30 provides that, while all persons have a right to the enjoyment of economic, social, cultural and political development, women in particular shall be given special consideration in regards to this right. The State must take all necessary measures for the realization of this right, including reforms aimed to eradicate social injustice and inequality. Other gender-related provisions include: the prohibition of torture, inhumane, and degrading treatment or punishment (Article 19); Article 20’s ban on all forms of discrimination; the right to education for all people (Article 25); Article 27’s prohibition of slavery, servitude, and forced labor; and Article 31’s requirement that all persons are entitled to fair wages and equal remuneration for equal value work without discrimination of any kind, especially on the basis of gender.

Article 11 guarantees fundamental rights and freedoms to all persons regardless of sex, ethnicity, race, political opinion, or national origin. Article 18 prohibits employment discrimination based on sex. Article 23 provides that the property obtained by a person during marriage because of his or her own labor shall not be used to satisfy the obligations of his or her spouse, nor shall the property be controlled by a spouse. It states further that the legislature is compelled enact laws to provide equal protection to the surviving spouses and children in both statutory and customary marriages.

The Customary Law Act aims to reconcile potential conflicts arising between customary Botswana law and Botswana’s common law. The Act pursues this aim by specifying that customary law is to be applied in customary courts only when it “is not incompatible with the provisions of any written law or contrary to morality, humanity or natural justice.” The Act thus makes presumptively invalid customary law that does not comply with common law legislation, leaves such law inapplicable in customary courts, and upholds the supremacy of the common law in Botswana.

The law governs ownership and use of land. Articles 10 and 15 of the law provide that women have the same right as men to use and manage land. The law also provides that land can be inherited regardless of gender. However, article 12 states that land acquisition requires compliance with “customary norms and practices that are not contrary to the Constitution.”

The Act abolishes the customary rule of primogeniture in as far as it applies to the law of succession and further extends the application of the Intestate Succession Act to the deceased estates of Africans who die intestate (without a will) and provides guidelines for interpreting the Intestate Succession Act in order to give effect to the new provisions and to ensure the protection of the rights of women to inherit.

Die Wet op Hervorming van die Gewoontereg van Opvolging en Regulering van Verwante Aangeleenthede 11 (2009)

Geslags diskriminasie, Skadelike traditionele gebruike, Eiendom en erfenisregte​

Die Wet skaf die gebruiklike rëel van primogeniture af vir sover dit van toepassing is op die erfreg en brei die toepassing van de Wet op Intestate Opvolging verder uit op die afgestorwe boedels van Afrikane wat intestaat sterf (sonder ‘n testament) en bevat riglyne vir die inerpretasie van die Intestate Opvolgingswet om uitvoering te gee aan die nuwe bepalings en om die beskerming van die regte van vroue om te erf te verseker.

The DVA protects and provides relief for victims of domestic violence. It defines and prohibits domestic violence in the form of physical, emotional, sexual, and economic abuse as well as acts of abuse derived from any cultural or customary practices that discriminate against or degrade women. Examples include, but are not limited to, forced virginity testing, female genital mutilation, pledging women and girls to appease spirits, forced marriage, child marriage, forced wife inheritance or sexual intercourse between fathers-in-law and newly married daughters-in-law. The penalty for committing an act of domestic violence as defined under section 3 is a fine not exceeding USD 5,000 and/or imprisonment for a period not exceeding ten years. The DVA also imposes duties on the police. Stations must have, where possible, one police officer with domestic violence expertise. Further, a police officer who receives a complaint of domestic violence must advise the complainant about how to obtain shelter or medical treatment and about their right to seek relief under the DVA. The DVA also requires that complaints made to police officers should be taken by officers of the same sex as the complainant, if complainant so requests. Moreover, police officers have the authority to arrest a person suspected of committing an act of domestic violence without a warrant and bring that person before a magistrate within 48 hours. Finally, the DVA provides for protection and relief to survivors of domestic violence by enabling them to apply for a protection order when an act of domestic violence has been committed, is being committed, or is threatened. It also allows someone acting with the consent of the complainant to make an application for a protection order on his or her behalf with the leave of the court. A person who fails to comply with a protection order is guilty of an offense and liable for a fine not exceeding USD 200 and/or imprisonment for up to five years.

The Communal Land Reform Act 2002 aims to regulate the allocation of customary land rights in communal lands and to establish Communal Land Boards. Communal land that previously belonged to indigenous communities is now vested in the state, which then distributes and allocates the land among the rural communities. This Act takes precedence over customary law and is much more favorable to women’s rights. Under the Act, four women must be appointed to the Communal Land Boards. Furthermore, the Act provides that a customary land right that was allocated to a particular holder of such right shall upon the death of such holder be re-allocated to the surviving spouse. This provides protection to a surviving wife who may now remain on the communal land where previously she would lose the rights to such land upon the death of her husband.

The Combating of Rape Act (the “Act”) seeks to prevent rape and provides minimum imprisonment sentences for rape. It also abolishes the previous law, which presumed that a boy under the age of 14 was incapable of rape and sexual intercourse. This Act also regulates the granting of bail to perpetrators to further protect the rights of the victim, and provides protection to victims of rape and sexual abuse. Finally, it abolishes the customary rule, common among rural areas, that marriage is a justification for, or a defense to, rape.