Introduction:

The Muslims of South Africa have been living here for over 300 years. The majority of these persons follow the opinions found within the Sunnee based Shaafi’ee and Hanafee schools of law. There are also South African Muslims who follow opinions found within other schools of law, including the Maalikee school of law. No legislation has (to date) been enacted by the South African government that gives effect to Islamic law. Islamic law can therefore not be enforced by South African Muslims in terms of legislation. This non-enforcement would include the consequences of marriages entered into in terms of Islamic law, for example, matters regarding maintenance and succession. The position of non-enforcement in terms of Islamic law had led to a situation where South African Muslims have approached the South African courts in order to seek relief in terms of South African law, with regard to marriages concluded in terms of Islamic law. It is stressed here that these persons could not enforce the Islamic law consequences of their marriages. This paper highlights some of the problems that came about as a result of these cases. This is done by way of introduction. The paper then looks at the possibility of enacting legislation to govern certain Islamic laws within the South African context. The issue of incorporating opinions not generally followed by the majority of South African Muslims (Shaafi’ee and Hanafee) within the proposed legislation, is also looked at. The enactment of legislation giving effect to Islamic law consequences to marriages concluded in terms of Islamic law could be seen as being compassionate towards the Muslims who want their marriages to be governed in terms of Islamic law. The paper concludes with an overall analysis of the findings and makes recommendations as to a way forward.

Some Reasons Why the Current Status Should Change:

There are a number of cases that gone to the South African courts concerning the consequences of marriages concluded in terms of Islamic law. These cases include the consequences of monogamous as well as polygynous marriages. Two sample cases are looked at in this regard. The first case is Daniels v Campbell. This case which was initially heard in the Western Cape Division of the High Court. The case concerned a Muslim deceased who passed away intestate (without a will). He left behind a widow (hereafter referred to as Y). Y was entitled to inherit from her deceased husband’s estate in terms of Islamic law. Y could not, however, claim her right to the Islamic law inheritance in terms of South African law. Y was also not regarded to be a wife of the deceased for purposes of South African law statutes dealing with inheritance and maintenance. Y then decided to challenge the constitutionality of the Intestate Succession Act 81 of 1987 as well as the Maintenance of Surviving Spouse Act 27 of 1990 as it did not recognise her Islamic law marriage for purposes of these acts. The request was in fact an application to have her Islamic law marriage recognised (recognition) for purposes of claiming inheritance and maintenance in terms of South African law. Y was successful in her attempt. She was entitled to the share of a spouse in terms of the Intestate Succession Act 81 of 1987 as well as a maintenance claim in terms of the Maintenance of Surviving Spouses Act 27 of 1990, if certain conditions were met. It should be noted that a surviving spouse can claim maintenance against the estate of a deceased spouse until he or she dies or remarries, as long as he or she cannot provide for his or her maintenance from his or her earnings and means. This is not the situation in terms of Islamic law. This case has led to a situation where monogamous marriages concluded in terms of Islamic law are recognised for purposes of South African law statutes. It must be stressed here that the relief that would be granted to the widow in this case is not compliant with Islamic law. This is still the current status.

The second case that is now looked at is Hassam v Jacobs. This case is similar to Daniels v Campbell. However, the deceased in this case (in terms of the judgment) was married to two spouses at the time of his death. This was therefore a de facto polygynous marriage. In this case it was argued that the Intestate Succession Act 81 of 1987 as well as the Maintenance of Surviving Spouses Act 27 of 1990 should apply to polygynous marriages contracted in terms of Islamic law. This matter was also heard in the Western Cape Division of the High Court. The court granted the relief sought. However, again, it should be stressed that the relief granted was not in terms of Islamic law, but in terms of South African law, which is not compliant with Islamic law. It should be noted here that the Intestate Succession Act 81 of 1987 would (based on these judgments) now be applicable to the estates of deceased Muslims who were married (be it monogamous or polygynous) in terms of Islamic law.

There is, however, a way out of this situation. A Muslim testator could draft a will stating that his or her estate must devolve in terms of Islamic law. This is possible within the South African context based on the common law right to freedom of testation. This type of will could be referred to as an Islamic will it would ensure the Islamic law consequences would flow. An Islamic will would state that an institution like the Muslim Judicial Council (SA) should draft and execute an Islamic Distribution Certificate stating who the beneficiaries of the person are in terms of the Islamic law of succession. A problem might arise in the event where differences of opinion exists with regard to a matter pertaining to the Islamic law of succession. An example of this would be where a child is conceived out of wedlock, and born one month after the marriage between the biological parents. The father of the child then dies. The majority opinion is that the child would not inherit from his or her deceased father in terms of Al Quraan 4:11. However, there is a minority opinion stating that the child should inherit in terms of Al Quraan 4:11, on condition that the father acknowledged paternity. I would recommend that this opinion should be followed within the South African context as it shows compassion towards these children, and keeping in mind that the South African Constitution prohibits discrimination based on birth. This is also the approach followed by the Muslim Judicial Council (SA), where they are of they recommend that the minority opinion should be applied where the need exists. This would also ultimately lead to a situation which brings about compassion and peace within the Muslim household, especially to a child conceived out of wedlock.

It should be noted that issues concerning maintenance and other matters that flow from an Islamic marriage, requires some other form of intervention, in order to have Islamic law consequences apply to the marriage. I am of the opinion that legislation would be an answer.

Enacting Legislation that Governs Muslim Personal Law:

The Constitution of South Africa allows for the enactment of legislation that governs family laws in South Africa. This would include Islamic laws regarding marriage, divorce, succession and related matters (hereafter referred to as Muslim Personal Law). The proposed legislation must however be in conformity with the other provisions found in the Constitution. This would include equality provisions. Islamic law does not generally subscribe to notion of formal equality. It does, however, apply substantive equality. There are South African Muslims who are of the opinion that Muslim Personal Law will not pass constitutional muster. One of the reasons given in this regard is because males and females do not have equal rights in terms of Islamic law and that Islamic law would therefore not pass the equality provisions as found in the South African Constitution. I am of the opinion that even though this is possible, it is not inevitable as there would be strong objections to the constitutional challenge, by the Muslim community in this regard. A case in point would be the Indian Shah Bano judgment. In this case the maintenance laws governing Muslim marriages (upon divorce) were dealt with in terms of Islamic law. A court judgement had the effect of changing the position. A divorced woman, for example, could then claim maintenance for beyond what is due in terms of Islamic law. This Muslim community then made use of social justice advocacy which led parliament to enact new legislation to overturn the effect of the Shah Bano judgment. The Islamic law position was the restored.

If, within the South African context, a statute governing Muslim Personal Law is found to be unconstitutional and the position is changed, it would not deem Islamic law or the Sharee’ah to have changed or altered. It would basically mean that legislation that was enacted by the government and that originally incorporated Islamic law principles have been subjected to change, and South African Muslims would thus be in a similar situation to the position they are currently facing. I am therefore of the view that the process of enactment should continue.

I have stated earlier that South African Muslim essentially follow the opinions found within the Shaafi’ee and Hanafee schools of law, and that there are also South African Muslims who follow the opinions found within other schools of law. If a piece of legislation is to be enacted that gives effect to Islamic law within the South African context, it would make sense for it to a single document encompassing Muslim Personal Law applicable to all persons wanting to be bound by the provisions. The drafters of the proposed legislation should ensure that the most suitable opinions found within Islamic law are incorporated into the document. Countries like Egypt and Syria have already done this.

There have been a number of attempts to enact legislation in order to govern aspects of Muslim Personal Law within the South African context. The most recent attempt was the 2010 version of the Muslim Marriages Bill. The Bill incorporates opinions found within the Shaafiee, Hanafee, and Maalikee schools of law. An example of where another school of law was incorporated would be with regard to delegating the authority to issue a talaaq. If a husband delegates this authority to his wife, then she would be in a position to issue her husband with a talaaq. This type of a situation is not found within the Shaafi’ee and Hanafee schools of law. However, it was incorporated into the Bill as it makes the Bill more in line with the equality provisions as requited in terms of the South African Constitution. The opinion concerning delegation of talaaq authority is found within the Maalikee school of law. The 2010 Bill has not been enacted and therefore has no binding effect. There is no certainty as to why the government of South Africa is not moving forward with the 2010 Muslim Marriages Bill.

The Western Cape Division of the High Court has handed down on the 31 August 2018, a judgment stating that the President and Cabinet have failed in their constitutional obligation to enact legislation that governs Muslim marriages and its consequences. The South African government has been given two years to correct this defect. The South African government has now attempted to initiate a bill that recognises all religious and cultural practices. This might be a step in the right direction, as an alternative to the 2010 version of the Muslim Marriages Bill.

Conclusion:

This paper has looked at the application of Muslim Personal Law in South Africa. The findings show that it is not recognised, and that the situation has brought about much difficulty for South African Muslims. Leaving the situation as is would be very uncompassionate towards these persons. The findings shows that it possible to apply aspects of Muslim Personal Law within the context by, for example, using the common law right to freedom of testation for matters concerning succession law,  or enacting legislation for other matters. The opinions that should applied in this regard should be the most appropriate within our context, even if it is not found within the schools of law essentially followed by South African Muslims. This would hopefully lead to a situation where Muslims could live in peace and harmony with each other, or at least feel content that these matters concerning them would be dealt with in terms of Islamic law.

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