Research Articles (Faculty of Law)

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Browsing by Author "Abduroaf, Muneer"

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    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.
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    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.
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    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.
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    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.
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    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.
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    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.
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    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.
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    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.
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    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.