Women and Justice: Keywords

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 s 3(a) of the Constitution of Botswana.  On 12 October 2012, the High Court subsequently 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.  On 3 September 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.

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.

The sons of Lerionka Ole Ntutu filed to prevent Ntutu’s married daughters from receiving their inheritance of his estate Section 82(4) (b) of the Kenyan Constitution. Under Kikuyu customary law, only unmarried daughters were allowed an inheritance. The presiding judge held that this claim was illegitimate, stating that the law cannot deprive a person of their rights only on the basis of sex and marital status. The judge followed the precedent set by the ruling in Rono v. Rono, Kenya Court of Appeal, 2005, in circumscribing customary law to prevent violations of justice, morality, and other written law. This case marked another important step in upholding women’s rights and human rights law over harmful customary practices towards women.

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.