Abstract

For over a century, the South African secular state refused to legally recognise Islamic marriages (nikah), primarily due to their potentially polygynous nature. This statutory exclusion left Muslim women without civil legal protections during marriage, upon divorce, and at the death of a spouse. This article examines the fifteen-year strategic litigation campaign led by the Women’s Legal Centre (WLCT), which culminated in the landmark 2022 Constitutional Court judgment. Utilising a qualitative analysis of public court filings, legal pleadings, and judicial decisions, the author explores how marginalised Muslim women used civil courts to bypass and challenge the exclusive authority of conservative male clerical councils (ulama). The article analyses this legal trajectory through two primary theoretical lenses: Robert Cover’s concept of jurispathy (the state’s suppression of a community’s laws) and Afro-feminist frameworks. The findings reveal a critical tension in state-led legal reform. While the 2022 judgment secured vital financial and proprietary protections for women, it simultaneously introduced the limitations of ‘state feminism’ by replacing informal religious control with a rigid state bureaucracy. The paper argues that developing an authentic decolonial family law requires a jurisprudence that enforces the material and financial rights of African Muslim women without forcing their religious unions to conform entirely to Western, secular concepts of civil marriage.

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