How Muslim women used strategic litigation to dismantle patriarchal religious authority, only to confront the bureaucratic limits of state feminism.
 

Author:

G Mandisodza
 

Summary:

For over a century, South Africa’s secular legal system refused to grant formal recognition to Islamic marriages (nikah), leaving Muslim women without civil legal protections regarding property, maintenance, and inheritance upon divorce or spousal death. The article examines the fifteen-year strategic litigation campaign led by the Women’s Legal Centre, which resulted in a 2022 Constitutional Court judgment ordering legal recognition. Through a qualitative analysis of judicial decisions and legal filings, the article investigates how Muslim women used civil courts to contest the sole authority of conservative male clerical bodies (ulama). The campaign is analysed using Afro-feminist theory and Robert Cover’s concept of jurispathy, the mechanism by which state law suppresses non-state legal traditions. The findings highlight a fundamental tension in state-led legal reform. Although judicial intervention successfully established necessary financial and property rights for women, it also introduced elements of state feminism by substituting informal religious authority with rigid administrative control. The article concludes that reform in family law requires an approach that protects the economic and human rights of Muslim women without forcing religious unions to conform entirely to Western, secular marriage frameworks.


Link to Journal Article