Leaving behind a legacy, where the legal system and society recognises women as individuals with their own rights

September 1st, 2022

Legal practitioner and Director of the Women’s Legal Centre, Seehaam Samaai.

For the September Women in Law Feature, De Rebus news reporter, Kgomotso Ramotsho, interviewed legal practitioner and Director of the Women’s Legal Centre (WLC), Seehaam Samaai. Ms Samaai is a feminist legal practitioner and activist who has been practicing as a legal practitioner since 2001. She holds an BProc LLM from the University of the Western Cape (UWC). She is the Director of the WLC, which is an African feminist legal centre that advances women’s rights and equality through strategic litigation, advocacy, education, advice, and training. The WLC has a vision of women in South Africa (SA) who enjoy equal and substantive access to rights and its objective is to drive a feminist agenda and develop feminist jurisprudence based on an intersectional approach and with substantive equality as its foundation.

Ms Samaai was born and grew up in the Bo-Kaap, a small working-class community situated in the heart of gentrified Cape Town. She attended Vista High School in Cape Town and after studying, she completed her articles at the Legal Resources Centre and in 2002 she became a project legal attorney at Lawyers for Human Rights (LHR) within their farmworker tenure programme. From 2012 to 2016, Ms Samaai was a Director of Legal Administration in the Western Cape Regional Office of the Department of Justice and Constitutional Development and subsequently worked for the Foundation for Human Rights in their Strengthening of Civil Society and Access to Justice Programme. ‘I was a lecturer for ten years in clinical legal education and Director of the UWC [University of the Western Cape] Law Clinic where I practically trained law students and candidate attorneys within a clinical law environment with the aim of inculcating principles of social responsibility and social justice,’ Ms Samaai said. She added that she was a long serving Board Member and Chairperson of LHR and previously served on the Rural Legal Trust and the Association of University Legal Aid Institutions. Ms Samaai is also an active member and the Vice-Chairperson of the Western Cape branch of the South African Women Lawyers Association (SAWLA) and was nominated and elected in 2018 as the National Gender Convenor of the National Association of Democratic Lawyers.

Kgomotso Ramotsho (KR): Why did you choose to study law?

Sehaam Sammai (SS): At a young age I saw how the law disempowered those around me and how women (in particularly) were oppressed by the justice system. Women had no access to justice upon the dissolution of divorce or death of their spouses as they were only married in terms of Muslim rites, and they had no rights to their properties. Subsidies from government were accessed by these women but the city failed to transfer the properties on their names and their male spouses took advantage of this system by marrying two to three wives. Many women in my community had no choice but to accept their plight due to the economic inequities. My grandmother was also a second wife. My grandfather was the local Bilal. She had to move to the Cape Flats after the owner of the flats wanted to upgrade the houses in Leeuwen Street, which had the effect of cancelling the rent control on the property. The owners also wanted to sell the property, which my family could not afford. My grandmother had no option but move to the Cape Flats. I experienced the effects of gentrification on my family.

I saw how the high cost of legal representation stopped poor working class communities from accessing justice and how the courts were used as a tool of oppression.

At a young age I became involved in civic politics, and I saw how communities could resist oppressive laws and policies through uniform civic and political actions. I come from a very strong civic background and believe strongly that non-governmental organisations (NGO) and civil society must amplify the voices and actions of communities. Democracy starts in our home and communities, and all have a collective obligation to build those structures within our communities. I always believed that education (my motto being: Each one teach one) empowers people on various levels and it provided women with better choices.

My parents strongly believed in education, and I wanted to use the law to empower poor working-class communities and women in particular to access their rights. I wanted to use the law as a vehicle for social change and to sensitise the law to the realities of women in my community and our townships.

KR: What does a typical day in the life of a director of the WLC look like?

SS: Stakeholder engagement, staff meetings and staff check-in; litigation strategy meetings; checking reports, funder proposals; networking; and personal community outreach. A big part I spend on community development projects to keep me centred to the communities who we serve.

KR: Your organisation deals with a lot of issues that women face daily in SA. From your point of view, working with these women on the ground, would you say women in SA have access to justice? Can they confidently say that they are protected by the laws in this country?

SS: Despite the extraordinary constitutional and rights-based developments in our country, 25 years into our democracy. South Africa still has a long way to go in challenging inequalities and achieving substantive justice for women. The failure of both the state and private institutions to fully realise the rights of women necessitates the continued and vital work of the WLC. Women are often disregarded by a legal system, which is designed by and for men; a system, which does not adequately protect them and their specific needs. Women who are marginalised and vulnerable are left with little support from this legal system. The disproportionate burden placed on women in different legal contexts manifests in cases of sexual harassment, Muslim personal law, violence against women, the denial of sex workers’ rights, sexual and reproductive health and rights, and access to land and housing.

KR: One of the areas of focus for the WLC, is on sexual and reproductive health and rights of women. What are some of the big challenges women not only in SA, but in the continent of Africa are facing in regard to sexual and reproductive health and rights?

SS: Internationally, we have seen pushback against women’s health and reproductive rights with United States (US) policy of Protecting Life in Global Health Assistance (the Global Gag Rule), which requires NGO’s receiving US government funding to clarify that they do not engage in the promotion or provision of abortion services. The WLC’s strategy is to raise awareness and train service providers on the Global Gag Rule, as well as continuing to strengthen ties between NGO’s both internationally, regionally, and nationally to challenge the effects of the Global Gag Rule. We will also continue to hold the state accountable to ensure proper implementation of the Choice on Termination of Pregnancy Act 92 of 1996.

In terms of our Sexual and Reproductive Health and Rights programme, we find that women still face several challenges when it comes to having bodily autonomy and agency. Over the past year, the programme has focused its efforts on the proper implementation of the Choice on Termination of Pregnancy Act in SA within the broader global trend towards the conservative elimination of women’s rights to sexual and reproductive health. We note with distress that the Act’s poor implementation is a symbol of the relegation of women’s sexual and reproductive health and rights. In the international arena, we have also begun work on the pushback and mitigation of the Global Gag Rule implemented by former US President Donald Trump. This essentially bars NGOs around the world who support or provide abortion services, from receiving US aid funding and the effects of the Trump administration can be seen on the recent Dobbs v Jackson Women’s Health Organisation 597 US (2022) judgment, which has changed the tide of Roe v Wade 410 US 113 (1973).

KR: What has been one of the biggest victories for your organisation that has been a game changer for the rights of women?

SS: In terms of our Relationship Rights programme, we continue to be a reference point for issues surrounding the recognition of marriages and relationships regardless of religion, custom or sexual orientation. The programme has been dominated by the seminal Muslim marriages case, which sought to recognise Muslim marriages in South African law. In 2018, the Western Cape Division High Court (Women’s Legal Centre Trust v President of the Republic of South Africa and Others (United Ulama Council of South Africa and Others as amici curiae) and two related matters [2018] 4 All SA 551 (WCC)) held, in this long-standing matter, that Muslim marriages ought to be recognised and ordered Parliament to do so within two years, which has recently been confirmed by the Constitutional Court (CC) (Women’s Legal Centre Trust v President of the Republic of South Africa and Others (CC) (unreported case no CCT 24/21, 28-6-2022) (Tlaletsi AJ (Madlanga J, Madondo AJ, Majiedt J, Mhlantla J, Pillay AJ, Theron J, and Tshiqi J concurring)). The CC has found that Muslim women and children born from Muslim marriages are being discriminated against because their rights are not similarly protected to that of women and children in the Marriage Act 25 of 1961.

The CC has said that government has failed to address this discrimination by either amending existing laws or passing new laws.

The court has declared the Marriage Act and the Divorce Act 70 of 1979 inconsistent with the right to equality, the right to dignity and that it violates children’s rights all set out in the constitution, because they fail to recognise Muslim marriages.

Section 6 of the Divorce Act, which makes provision for safeguarding of the interest of minor children in divorce proceedings is inconsistent with the Constitution because it does not safeguard the best interest of children born of Muslim marriages.

Section 7(3) of the Divorce Act, which makes provision for the division of assets and maintenance specifically in respect of marriages out of community of property is inconsistent with the constitutional right to equality, dignity and access to courts as set out in the Constitution, because it fails to provide for the redistribution of assets on the dissolution of a Muslim marriage when such distribution would be just.

KR: What is your coping mechanism, having to deal with women who are being oppressed or abused, or even killed?

SS: The WLC has a wellness programme and I do obtain my own psychological support so that I can personally deal with the stresses and challenges of dealing with violence against women. I also locate myself in support groups of similar minded feminists to allow for debriefing and self-care.

KR: Given a chance in your next lifetime, would you do what you are doing today, fight for women’s rights?

SS: I have a deep passion and love for justice, and I do think in my next lifetime I would continue fighting injustices.

KR: What is your daily motivation, what keeps you going?

SS: I can make a difference in someone’s life. Pull as you rise because we are our sisters’ keepers (the latter is SAWLA’s motto on mentorship).

KR: What kind of legacy do you want to leave behind?

SS: A legal system and society, which is sensitive to the needs and lived realities of our women. A system which recognises women as individuals with their own rights and freedoms, and we attempt to assert this through our work.

KR: Where do you see yourself in five years? What can we expect from you?

SS: Working within the regional and international arena on women’s rights issues.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2022 (Sept) DR 15.