The intersection between the Islamic law of inheritance and the South African law of succession

Essop, Fatima

The intersection between the Islamic law of inheritance and the South African law of succession

Thesis / Dissertation

2022

Publisher

University of Cape town

Department

Department of Private Law

Faculty

Faculty of Law

Abstract

While Muslims constitute 2% of South Africa's population, they formed an integral part of the South Africa's socio-political and historical landscape for over 350 years. Despite their historical marginalisation, in post-apartheid South Africa there are still no legislative provisions recognising Muslim personal law – even though the Constitution of the Republic of South Africa, 1996 (the Constitution) makes provision for such legislation to be enacted. Consequently, Muslims have been practicing their Islamic family laws of marriage, divorce, and inheritance within the private sphere, facilitated, and regulated by community-based Muslim judicial bodies, and their affiliated clergy (Shaykhs and Imāms). The thesis seeks to identify how Muslims in Western Cape include and implement Islamic inheritance laws in their wills and estates. A socio-legal methodology was adopted to study Islamic inheritance laws as they occur in practice. Empirical research was conducted in the Cape Town metropole area of the Western Cape as it has the largest, oldest, and most established Muslim community in South Africa. I conducted qualitative interviews with various role players, including an official at the main Muslim judicial body in the Western Cape, attorneys involved in the drafting of Muslims' wills and the winding up of Muslims' estates, and an Assistant Master of the High Court (responsible for the probate of all estates). I also conducted a document analysis of Islamic wills stored on record at the main Muslim judicial body in the Western Cape. The data extrapolated from my research identified various legal challenges encountered by people implementing the Islamic inheritance laws within the context of the existing common law and statutory laws of succession framework. These include the contravention of certain black letter common law rules of succession, for example, the prohibition against incorporation by reference and delegation of testamentary powers. In this regard, the thesis recommends that our courts should develop the common law to give expression to a Muslim testator's freedom of testation to devolve his or her estate in accordance with the constitutional guarantees of freedom of religion (s15) and right to property (s25). The thesis identifies potential conflicts that may arise between the provisions of Islamic inheritance law and the rights enshrined in the Constitution, such as the rights to equality (s 9) and dignity (s10). It hypothesises how the courts should balance various constitutional and common law rights in accordance with prevailing values of public policy. The thesis cautions the courts to be circumspect when striking down provisions in private wills so as not to infringe the constitutional rights to privacy (s14), dignity and property of a testator. Aside from the empirical research, the thesis relies on a broad spectrum of local and foreign literature in its discussion of both Islamic law and South African law. It provides an overview of the foundations of Islamic law generally, as well as Islamic laws of marriage, divorce, and inheritance. This overview contextualises the empirical research so that concrete suggestions for reform can be made. The thesis concludes with recommendations for the future implementation of Islamic inheritance laws by relevant role players.

Keywords

Law

Reference:

Collections

PhD / Doctoral

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