Faculty of Law

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https://hdl.handle.net/10566/25

The Faculty of Law's principal research focus areas include human rights, local government law, criminal justice and prisons, and labour law.

Electronic theses and dissertations are available in the Electronic Theses and Dissertations Repository.

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An Analysis of the Islamic Law Based Developments in the South African Law of Succession
(2020) Abduroaf, Muneer
South Africa is a secular state with a constitution that guarantees the right to freedom of religion and the right not be discriminated against on religious basis. Over three quarter of a million Muslims live in South Africa today. There has (to date) been no legislation enacted in South Africa that gives effect to Islamic personal law. This article analyses the accommodation of the right of South African Muslims married in terms of Islamic law to inherit in terms of South African law as a result of the developments in the case law and contextual interpretation of the existing statutes by the South African courts. This article first analyses the recent developments and the existing position with regard to the right to inherit under the law of testate succession. This is followed by an analysis of the right to inherit under the law of intestate succession. The developments are then compared to the position in Islamic law of testate and intestate succession. The article concludes with a finding that the developments are not consistent with Islamic law. A recommendation is made that South African Muslims should draft and execute Islamic wills in order to ensure that their estates devolve in terms of Islamic law upon their demise. A further recommendation is made that in line with Section 15(3) of the South African Constitution, the South African government should consider enacting legislation that gives effect to the Islamic law of succession.
An analysis of the right of a Muslim child born out of wedlock to inherit from his or her deceased parent in terms of the law of succession : a South African case study
(Obiter, 2021) Abduroaf, Muneer
This article analyses the right of a Muslim child born out of wedlock to inherit from his or her deceased parent in terms of the law of succession within the South African context. The status of the child in the South African and Islamic law of intestate succession is first investigated. Thereafter, the status of the child in the South African and Islamic law of testate succession is discussed. The article further looks at the possibility of applying the Islamic law of succession provisions concerning a Muslim child born out of wedlock to the distribution of a deceased estate within the South African legal framework. The article concludes with an analysis of the findings and makes recommendations.
An analysis of the right of a Muslim spouse to claim pension interest subsequent to divorce: A South African case study
(University of Zurich, 2021) Abduroaf, Muneer
Section 37D(1)(d)(i) of the Pension Fund Act 24 of 1956 enables a divorced spouse to claim pension interest from the pension fund organisation of his or her former wife or husband if certain requirements are met. This paper analyses the application of s 37D(1)(d)(i) to South African Muslims who married in terms of Islamic law only as well as those South African Muslims who married in terms of Islamic law as well as civil law. It highlights some of the problem areas found within the current application of the provision. The paper concludes with an overall analysis of the findings and makes a recommendation as to a way forward.
An analysis of the right of a muslin child born out of wedlock to inherit from his or her deceased parent in terms of the law of succession: A South African case study
(ASSAf, 2021) Abduroaf, Muneer
This article analyses the right of a Muslim child born out of wedlock to inherit from his or her deceased parent in terms of the law of succession within the South African context. The status of the child in the South African and Islamic law of intestate succession is first investigated. Thereafter, the status of the child in the South African and Islamic law of testate succession is discussed. The article further looks at the possibility of applying the Islamic law of succession provisions concerning a Muslim child born out of wedlock to the distribution of a deceased estate within the South African legal framework. The article concludes with an analysis of the findings and makes recommendations.
An analysis of the right of Muslim adopted children to inherit from their deceased parents in terms of the law of succession: A South African case study
(Juta, 2021) Abduroaf, Muneer
This paper analyses the right of Muslim adopted children to inherit from their deceased parents in terms of the laws of succession within the South African legal context. The status of adoption in South African and Islamic law is looked at first by way of an introduction. This is followed by looking at the rights of adopted Muslim children to inherit from their deceased parents (biological and adoptive) in terms of the South African and Islamic laws of intestate (compulsory) and then testate (optional) succession.1 The paper further looks at the possibility of applying relevant Islamic law of succession provisions applicable to enable adopted Muslim children to inherit from the estate of their deceased biological parents within the South African legal framework. The paper concludes with an analysis of the findings and makes a recommendation.
Application of the Islamic Law of Succession in South Africa
(Researchgate, 2020-10) Abduroaf, Muneer
Muslims have been living in South Africa for over 300 years. There are over 750 000 Muslims living in South Africa today. These persons constitute a minority religious group in a non-Muslim country. Muslims are required in terms of their religion to follow Islamic law. There has (to date) been no legislation enacted by the South African parliament that gives effect to Islamic law. South African Muslims can however make use of existing South African law provisions in order to apply certain Islamic laws within the South African context. This article looks at the practical application of the Islamic law of succession and administration of estates within the South African context by way of a fictitious scenario. It highlights some of the problem areas when a Muslim testator or testatrix bequeaths his or her estate in terms of Islamic law by means of a will (Islamic will).
Comparing the application of the islamic law of succession and administration of estates in Singapore and South Africa
(Researchgate, 2020-04) Abduroaf, Muneer
This article investigates how the Islamic law of succession and administration of estates is applied in Singapore and South Africa with regard to the “Islamic will”. This kind of will includes a provision where the testator or testatrix states that his or her estate must be distributed in terms of the Islamic law of succession. This requires an Islamic law expert or an Islamic organisation to draft an Islamic distribution certificate stating who the beneficiaries of the person are. The distribution certificate is drafted after the testator or testatrix has died. An Islamic distribution certificate within the Singaporean context is specifically compared with one in the South African context. This article looks at whether features found in the Singaporean model can be applied to the South African context. An overview of the Muslim population in Singapore and South Africa is presented by way of introduction. This is followed by an examination of the constitutional and international obligations of the two countries in light of their equality provisions, and a comparative analysis of the Islamic law of succession and administration of estates in the two countries. The focus areas looked at are liability claims, testate succession claims and intestate succession claims. A brief analysis of the findings and concluding remarks are made at the end of the article.
Constitutional legitimacy of the Islamic law of compulsory succession within the South African context
(University of the Western Cape, 2023) Sungay, Mohamed Hoosain; Abduroaf, Muneer
The Constitutional legitimacy of the Islamic Law of compulsory succession remains a heavily contested issue since the enactment of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution). South African law allows a deceased person freedom of testation subject to common law and statutory limitations. This freedom of testation principle is defined as the “[t]he right of an individual to dispose of his or her property on death as he or she pleases”. Furthermore, the Supreme Court of Appeal stated in the BoE Trust Ltd NO and Others case that this principle is perfectly balanced against constitutional imperatives regarding non-discrimination and equality. It was furthermore stated that this principle subtly forms part of section 25(1) of the Constitution, in that it protects a person’s right to dispose of their assets, upon death, as they wish.
Faskh (divorce) and intestate succession in Islamic and South African law: impact of the watershed judgment in Hassam v Jacobs and the Muslim Marriages Bill
(Juta&Company, 2014) Moosa, Najma; Abduroaf, Muneer
This article deals with intestate succession against the background of the complex Islamic legal aspects of faskh and talaq as forms of divorce. It elaborates on the divergent views held by Islamic scholars and explains the foundational principles of Islamic law. The article offers a new perspective on the ground-breaking case of Hassam v Jacobs and sheds light on its surrounding circumstances and factual background in order to indicate that the Cape High Court may have unnecessarily pronounced on the recognition of polygynous Muslim marriages, an issue which in fact may not have been before the court. The article also examines how the Islamic law of divorce is practically administered by Islamic organisations within Cape Town. Practical recommendations are offered for dealing with the complexities of recognising and administering aspects of Islamic law in secular courts and the interaction with Islamic bodies administering Muslim personal law.
The imperative to implement Muslim personal law in South Africa
(University of Western Cape, 2021) Moolla, Mohammed; Abduroaf, Muneer
It has been more than 25 years since the Interim Constitution came into effect and a Bill of Rights was introduced. Yet Muslim Personal Law ( still has no lega l recognition in South Africa. This the sis investigates how this causes serious problems for Muslim women who suffer grave injustices upo n divorce due to the non recognition and non regulati on of Muslim marriages It highlights t he State refus al to enact legislation despite the dicta and obiter comments from the courts spanning more than two decad es enjoining the state to effect legislation to achieve this purpose. South African law is still fundamentally lacking in the recognition of the rights of parties to marriages contracted only in terms of M PL . For couples married in accordance with civil law, marriages and divorces are dealt with under the relevant statutes, namely the Marriage Act 25 of 1961, t he Civil Union Act 17 of 2006 and the Divorce Act 70 of 1979. No provision has been made in statu tor y law for MP L . Previously the courts have held that this was due to the potentially polygyn ous nature of Muslim marriages. Muslim m arriages are inadequately regulated resulting in serious hardships to Muslim women and children. This thesis furthermore inve stigate s the need to recognize MPL .
Implications of the official designation of Muslim clergy as authorized civil marriage officers for Muslims polygynous interfaith and same sex marriage in South Africa
(University of Western Cape, 2017) Moosa, Najma; Abduroaf, Muneer
From 2014 to 2017 some 227 South African Muslim clergy, including three females, graduated as civil marriage officers in terms of the Marriage Act 25 of 1961. Although now vested with dual capacity to perform both Muslim marriages (nikahs) and officiate at civil marriages, their designation authorises them to solemnise and register only civil marriages. All religious marriages, including Muslim polygynous marriages, remain formally unrecognised in South Africa. The nikah is expected to precede the civil marriage ceremony; however, they remain two separate (unrelated) marriages.
Islamic mode of estate distribution in South Africa
(Jordan Publishing LexisNexis, 2016) Abduroaf, Muneer; Moosa, Najma
It has been argued by some academics that the Islamic law of intestate succession discriminates against females due to its unequal distribution of shares in favour of males.' The general example used in this regard is when a son inherits double the share of a daughter. The question as to whether the unequal distribution is consistent throughout the Islamic law of intestate succession is an important one and is further investigated herein. This chapter examines the mode of distribution of deceased estates in terms of Islamic law as currently applied in South Africa. Estate liability claims are first looked at by way of introduction. The law of testate succession is thereafter looked at with a focus on the limitations placed on freedom of testation. The law of intestate succession is then investigated with a specific focus on the position of females. The findings of this chapter are briefly examined and concluding remarks are then made.
Muslim Marriage and Divorce in Sri Lanka: Aspects of the relevant jurisprudence
(The Center for Islamic and Middle Eastern Legal Studies, 2016) Abduroaf, Muneer; Moosa, Najma
Muslims form 10 per cent of the Sri Lankan population. The country applies a mixed legal system. For many decades Muslim marriages and divorces have been governed by a separate piece of legislation. Courts in Sri Lanka have interpreted some of the legislative provisions. The purpose of this article is to highlight the case law emanating from Sri Lankan courts interpreting the provisions of the Muslim Marriage and Divorce Act 13 of 1951 dealing with different issues: age for marriage; proof of marriage; co-existence of a civil marriage and a Muslim marriage; maintenance of children especially children born out of wedlock; and types of divorce.
The new framework planned for the legal recognition and regulation of Muslim marriages in a secular South Africa: From litigation to law reform
(Syarif Hidayatullah State Islamic University (UIN) Jakarta, 2022) Moosa, Najma; Abduroaf, Muneer
Muslims, who originate from the East Indies and the Indian subcontinent, have a history in South Africa dating back more than three centuries. Attempts by South African Muslims to have their Muslim marriages (nikāḥs) recognized have a history spanning more than three decades, starting during white minority or apartheid rule and concluding during democracy. Although the Constitution of the Republic of South Africa, 1996, makes provision for Muslim marriages to be formally and separately recognized through legislation, it is a travesty of justice that there is, to date, no legislative framework for the recognition and regulation of the consequences flowing from such marriages.
The new framework planned for the legal recognition and regulation of Muslim marriages in a secular South Africa: From litigation to law reform
(Ahkam Journal, 2022) Moosa, Najma; Abduroaf, Muneer
Muslims, who originate from the East Indies and the Indian subcontinent, have a history in South Africa dating back more than three centuries. Attempts by South African Muslims to have their Muslim marriages (nikāḥs) recognized have a history spanning more than three decades, starting during white minority or apartheid rule and concluding during democracy. Although the Constitution of the Republic of South Africa, 1996, makes provision for Muslim marriages to be formally and separately recognized through legislation, it is a travesty of justice that there is, to date, no legislative framework for the recognition and regulation of the consequences flowing from such marriages. This article critically analyses recent and current litigation and judicial developments and parallel law reform and policy processes pertaining to the formal, future recognition and regulation of Muslim marriages in South Africa. As such, it does not provide any detail regarding why Muslim marriages remain unrecognized or the substantive law content and regulation of Muslim marriages.
Truth Commissions: Did the South African Truth and Reconciliation Commission serve the purpose for which it was established?
(University of the Western Cape, 2010) Abduroaf, Muneer; Fernandez, Lovell; NULL; Faculty of Law
Since the 1980's, many dictatorships around the world have been replaced by new democracies. These old dictatorships were notorious for their human rights abuses. Many people were killed and tortured; and many others were disappeared. When the new governments came into power, they had to confront these injustices that were perpetrated under the predecessor regime. This was necessary to create a culture of human rights; promote a respect for the law and access to justice. Many confronted these injustices in different ways, some granted amnesty, some prosecuted and others instituted truth commissions. This research paper focuses on truth commissions. The research focuses particularly on the study of the South African Truth Commission. The mandate of the South African Truth Commission is analysed and the investigation into whether the commission served the purpose for which it had been established is discussed.

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