Browsing by Author "Osman, Fatima"

Now showing 1 - 6 of 6
  • Thumbnail Image
    Item
    Open Access
    Ascertainment of customary law: case note on MM v MN - case note
    (2016) Osman, Fatima
    Froneman J states in MM v MN: ‘The process of determining the content of a particular customary norm can present some challenges.’ This case gives rise to a number of issues which have been discussed in some part elsewhere,2 however this note considers the Constitutional Court’s approach in MM v MN in ascertaining customary law and the difficulties the Court experienced. The issue in MM v MN was whether a polygamous customary marriage was validly concluded in Tsonga customary law and in particular, whether the first wife’s consent was required for the subsequent customary marriage. This note scrutinises how the Constitutional Court ascertained the Tsonga customary law on the issue. Tentative conclusions include that innovation and respect for customary law may not be enough for the judgment to stand as good precedent.
  • Thumbnail Image
    Item
    Open Access
    Comment on the Single Marriage Statute: Implications for Customary Marriages, Polygynous Marriages and Life Partnerships
    (2021-07-19) Osman, Fatima
    The South African Law Reform Commission has proposed a single marriage statute to reconcile the several enactments regulating marriage in South Africa. This comment argues that the Bill should include old customary marriages in its definition of a customary marriage and is underinclusive in its recognition of polygyny with a religious or cultural basis and not the more general practice of polygamy. Furthermore, the requirement of cohabitation for the recognition of a life partnership is onerous and may exclude vulnerable parties from protection. While the Bill is commended for requiring a husband to obtain the consent of existing wives before he concludes a further marriage, the note recommends that the Bill give meaning to the notion of consent. Finally, the Bill must address existing issues within the Recognition of Customary Marriages Act 120 of 1998 which have invalidated a range of customary marriages too often at the expense of women.
  • Thumbnail Image
    Item
    Open Access
    Freedom of Religion and the headscarf: a perspective from international and comparative constitutional Law
    (2013) Osman, Fatima; Chirwa, Danwood M
    his thesis analyses whether a legislative ban on wearing a headscarf breaches the right to freedom of religion, as such right is universally understood. It describes the ambit of the right to freedom of religion by examining the theoretical justification and importance of the right and thereafter analysing how the right is recognised in international and regional treaties and domestic constitutions. It demonstrates that religious freedom comprises of the right to hold a religion and the right to manifest a religion in the form of worship, observance, practice and teaching. Religious freedom, however, is not absolute and the thesis explains in the light of international and comparative case-law that the right to freedom of religion may be limited by a law that pursues a legitimate state interest and is reasonable. In light of this theoretical framework the thesis examines the practice of Muslim women wearing a headscarf and argues that the practice constitutes a manifestation of Islamic belief protected by the right to freedom of religion. Thereafter this thesis examines French, Turkish and German prohibitions on wearing a headscarf, the effect of these laws on Muslim women and the justifications furnished for such laws. It is argued that the state interest of preserving secularism relied upon to justify a headscarf ban is not legitimate and does not justify a headscarf ban. Furthermore, even where the state has a legitimate interest in preventing the coercion of young girls, promoting the equality rights of women and maintaining safety and order, a headscarf ban does not constitute a reasonable limitation of religious freedom. Ultimately, this thesis argues that a headscarf ban exacerbates the problems it is meant to solve and constitutes an unjustifiable infringement of religious freedom.
  • Thumbnail Image
    Item
    Open Access
    The administration of customary law estates post the enactment of the reform of customary law of succession act: a case study from rural Eastern Cape, South Africa
    (2019) Osman, Fatima; Himonga, Chuma
    After years of deliberation and judicial activism, the South African legislature in September 2010 brought into force the Reform of Customary law of Succession and Regulation of Related Matters Act 11 of 2009 (the Reform Act). The Act regulates the devolution of property of individuals who live according to customary law and die intestate. The notorious customary law principle of male primogeniture, according to which males inherited to the exclusion of females, has been abolished and replaced with the common law system of intestate succession. It has been nine years since the enactment of the Reform Act. This thesis investigates the implementation of the Act to understand its application by officials and people’s experiences thereof. It is a qualitative study that draws upon doctrinal and empirical research to address its objectives. The theoretical concepts of deep legal pluralism and the semi-autonomous social field are employed as the analytical prism through which the administration of customary law estates is investigated. The findings are based on a comprehensive case study conducted in a rural village in the Eastern Cape of South Africa. Individuals, the traditional leader, the headman and state officials were interviewed to understand how estates are reported and the devolution of benefits. The interviews were augmented by an analysis of a sample of case files drawn from the Master’s Office responsible for the administration of estates. The findings revealed the resilience of living customary law in the administration of estates, particularly in respect of homes situated in rural areas. In this regard, living customary law has evolved to allow women and daughters greater rights to property but it still displays patriarchal overtones as males are considered the true owners of homes. The Reform Act regulates more effectively the devolution of assets found in the formal sector, such as financial assets. The case study found most estates were valued at less than R250 000, with the result that deceased’s surviving spouse and children were the primary beneficiaries of the estate. However, a statutory right of inheritance is no guarantee that beneficiaries enjoy their rights as there is a significant risk of property grabbing. While much has been done to reform the customary law of succession, there is room for improvement in securing the rights of dependents of the deceased, facilitating the reporting of estates and ensuring the implementation of mediated solutions in communities. The thesis thus offers practical recommendations to improve the system of administration. First, the thesis recommends a move towards a functional, fact-based approach to inheritance which extends inheritance rights to individuals supported by the deceased while alive, regardless of whether they constitute a spouse or a descendant as statutorily defined. This addresses the lack of protection for unmarried partners and the broader notions of family found in customary law. Second, it advocates for the greater leveraging of traditional institutions such as chiefs and families in the reporting of estates and resolution of disputes. Third, the dissemination of information through state and non-state institutions is promoted. Fourth, it advocates for the explicit condemnation of corrupt state practices which exploit vulnerable individuals. Finally, the thesis recommends further research into practices such as the existence of family property and administration of estates in urban areas. Understanding the nuanced manner in which administration is experienced is argued to be necessary for successful reform.
  • No Thumbnail Available
    Item
    Open Access
    The Proprietary Consequences of Customary Marriages: Challenges in the New Regime(s)?
    (2024) Osman, Fatima
    The law governing marriage in South Africa is in transition. There are currently two proposals to reform the proprietary consequences of marriages in South Africa, namely a Marriage Bill [B43-2023], and a South African Law Reform Commission Discussion Paper to review aspects of matrimonial property law. This article assesses the effectiveness of the proposed reform in addressing the current regulatory challenges related to the proprietary consequences of customary marriages. It argues that the piecemeal jurisprudential development of the law has not been effectively reconciled, and this must be addressed in any future reform. However, the Marriage Bill proposed by the Department of Home Affairs is not an answer. The Bill ignores customary notions of property and creates several conceptual difficulties such as potentially leaving customary law marriages without a matrimonial proprietary regime. The South African Law Reform's Discussion Paper, which reviews aspects of matrimonial property law, holds great promise because it proposes a change in the default matrimonial proprietary system and the exclusion of family property from the marital estate. The proposals must be reconciled and informed by living customary law practices to deliver the much-anticipated law reform.
  • Thumbnail Image
    Item
    Open Access
    The regulation of ukuthwala in South Africa: lessons from Malawi
    (2022) Saukila, Tonthozo; Osman, Fatima
    South Africa is a pluralistic society whose supreme constitution protects the right to culture and other fundamental human rights, such as the right to equality and human dignity. South Africa is also party to a number of international and regional human rights instruments which aim to protect women and children from discrimination and harmful practices. It is important to consider these instruments as they create the normative standards to which South Africa is bound. Today, the continued practice of certain cultural practices, which are seen as inherently cultural, risk the violation of the Constitution and international and regional instruments. This thesis examines the tension between the right to culture and, inter alia, the right to dignity and equality, through the practice of ukuthwala. Ukuthwala, also known as bridal abduction, is mainly prevalent in the Eastern Cape and Kwazulu Natal provinces of South Africa, though it is also practiced in other provinces of the country. It aims to address the question: how can south Africa regulate ukuthwala? In coming to an answer, this thesis examines how Malawi has regulated the harmful cultural practice (HCP) of child marriage. Like South Africa, Malawi is a pluralistic society with a supreme constitution which protects, inter alia, the right to participate in the cultural life and the right to human dignity and personal freedoms. In line with its international and regional human rights obligations, Malawi has promulgated legislation to formally regulate HCPs. However, such “top-down” interventions are not always the best approach in African societies, as they are often theoretically beneficial to those they aim to help, but practically do not help. As such, there is a need for a “bottom-up” approach, one that involves the community, in creating solutions that regulate the HCPs affecting them. In this regard, various communities in Malawian districts have employed community “by-laws”, which are community made rules and sanctions that are not legally binding, to combat HCPs. The thesis argues that such by-laws, though non-binding, are effective because they provide a community owned and oriented solution, which inspires adherence. As such, they have contributed to reducing the prevalence of child marriage in the country. It argues that such a “bottom-up” approach is best suited to address HCPs in rural communities, as it is a home-grown solution. This thesis proposes an adapted form of community “by-laws” be employed in the context of ukuthwala, as it counters the alienation sometimes caused by the “top-down” approach. In including the community in creating a solution, they are involved in creating solutions which address the problems specific to them, and they are given ownership of the solution.