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Browsing by Author "Moosa, Najma"

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An analysis of professor Lourens du Plessis’ early (pro-life) and later (prochoice) perspectives on abortion
(Nelson Mandela University, 2016) Moosa, Najma
Abortion, or termination of pregnancy, albeit in gradations from most to less restrictive to unrestricted, has always been legally allowed in South Africa. This questions the need for the introduction of new law. Legalisation of abortion has reduced abortion to a form of failed contraception. Illegal abortions motivated new law, as well as research, Professor Lourens Marthinus du Plessis’ 1 constitutional argument favouring women’s (reproductive) right to abortion. Yet, illegal abortions continue as before democracy when the seemingly Christian, racially-motivated law, was flouted by white and black women alike. The Constitution adopts a neutral position on the right to life, but is decidedly pro-abortion. This does not imply that a constitutional challenge, which has yet to occur, seeking to amend the current status quo and to provide protection to an unborn, may be an exercise in futility. This article is written in honour of, and analyses the role and early “pro-life” views of the now retired Du Plessis as a white Afrikaner male, husband, father and proud grandfather, schooled in a traditional, conservative strand of Christianity, and as an anti-apartheid constitutional lawyer and drafter – to determine whether his liberal political views are compatible with his moral views and whether they may have since changed.
An Analysis of the Human Rights and Gender consequences of the New South African Constitution and Bill of Rights with regards to the recognition and implementation of Muslim Personal Law
(The University of the Western Cape, 1996) Moosa, Najma
Prior to the new constitutional dispensation in South Africa all women had identities of race and gender imposed on them. With a new dispensation in place Muslim women, however, still have to deal with identities attributed to them by religion and culture. The author of this dissertation is herself a Muslim woman who has struggled to reconcile her public life and "new found" equality with these identities. She found it difficult to believe that Islam, the self same religion which had brought seventh-century Arabian society out of its degenerating stupor, could be used to justify behaviour by conservative religious authorities ( Ulama) in South Africa which deny women equality. Earlier research partly allayed her suspicions and fears but did not lay them to rest completely. The fact that South Africa was to face a human rights revolution which would ultimately affect the lives of all her citizens for the better, sparked off a desire within the author to establish whether it is not possible to reconcile the undeniable and unalterable spirit of equality within Islam with the implementation of a reformed Muslim Personal Law (MPL) so that women can enjoy the best of both worlds.
An argument for foetal protection within a framework of legal abortion in South Africa
(International Centre of Medicine and Law, 2016) Moosa, Najma
Termination of pregnancy (abortion) and foetal protection remain a challenging topic in South Africa where abortion is legalised and largely decriminalised. As a general rule, an unborn (nasciturus) does not have legal status and a human right to life, until born alive. A meaningful engagement with South African law highlights that the life of an unborn may be worthy of protection in some abortion cases. This paper proffers an argument favouring increased foetal protection that goes beyond the usual pro-life/pro-choice perspectives. It proposes, as an exception to the general rule, the application of the nasciturus maxim as a "rule" to conditionally advance legal subjectivity to an unborn and thereby afford it rights. It argues that such application may be reinforced when combined with a "legal" foetal viability implicit in the abortion law. Such proposal does not require any amendment to the existing law.
Aspects of Dutch Colonial family law related to the Indonesian Rajah of Tambora's exile at the Cape
(Cambridge University Press, 2020) Moosa, Najma
'As far as family law is concerned, we in South Africa have ... every kind of family ... This is the result of ... history ... Our families are suffused with history, as family law is suffused with history, culture, belief and personality. For researchers it's a paradise ... 't The above quotation is apt for this chapter for two reasons. First, the chapter highlights the plight of the family of the former Rajah of Tambora, during a period of Dutch colonialism at the Cape, as one such historical example. The Rajah was one of many royal and high-ranking influential Indonesian political exiles (known as 'Orang Cayeng') banished to the Cape for rebelling against the Dutch. The Cape was under a first period of Dutch rule for roughly 150 years from 1652 until 1795. During this time it was governed by the Dutch East India Company or Vereenigde Oost-Indische Compagnie (VOC).2 The Rajah and his wife arrived at the Cape in 1698. As also confirmed by the visiting Reverend Francois Valentijn in his account of his journey to the Cape, the Rajah, who had ruled over a small kingdom called Tambora on the Indonesian island of Sumbawa, was 'banished to the Cape because of his bad behaviour on Bima, and she [his wife] followed for love of him'3 The states of Tambora and Bima were VOC trade posts located on the same island (Sumbawa). 4 The Rajah spent a total of some 17 years at the Cape, over, uniquely, two distinct periods in exile there (from 1698 to 1710 and 1714 to 1719).5 At the time of their arrival the couple were childless but by 1719 they were blessed with five children, four sons and a daughter. It is clear from the names of the Rajah and his wife, Abulbasi Sultan and Zytie Sara Marouff (or Care Sale), and the birthnames of their children (Ibraim Adaham, Mochamat Aseek, Mochamat Daijan, Mochamat Asim and Sitina Asia) that all were Muslims.
Aspects of Dutch colonial family law related to the Indonesian rajah of Tambora’s exile at the cape
(Intersentia, 2020) Moosa, Najma
The Muslims who arrived at the Cape during the first period of Dutch colonisation in the seventeenth century hailed from different geographical locations, were of different cultural and ethnic backgrounds and, more importantly, were of different social ranks ranging from slaves to royalty. This chapter focuses on the family of one such royal exile, the Rajah of Tambora, who had ruled over a small kingdom in Indonesia, and the invidious socio- economic position in which his innocent family was placed when he died at the Cape during a period of Dutch occupation of both countries. The Rajah arrived at the Cape at the end of the seventeenth century and quite unusually, spent two periods in exile there. During his second period of exile the Rajah, until he died, and his wife, after he died, were denied separate requests to return home. Their five children, four of whom chose to convert to Christianity and subsequently entered into marriages at the Cape with Christian spouses when it was uncommon to do so, were all born Muslim during or between his two periods of exile.
Book Review: The Future of African Customary Law
(University of the Western Cape, 2022) Moosa, Najma
In the abstract of "The Future of African Customary Law" the editors state that it …is intended to promote discussion and understanding of customary law and to explore its continued relevance in sub-Saharan Africa…[It] considers the characteristics of customary law and efforts to ascertain and codify customary law, and how this body of law differs in content, form, and status from legislation and common law. It also addresses a number of substantive areas of customary law including the role and power of traditional authorities; customary criminal law; customary land tenure, property rights and intestate succession; and the relationship between customary law, human rights and gender equality.
Chapter 18 Islamic Jurisprudence
(Juta, 2004) Moosa, Najma; Goolam, Nazeem M.I
What is the meaning of the word Jurisprudence? The etymology of the word 'jurisprudence' hails from two Latin words; first, 'ius' meaning 'law' and 'iuris' meaning 'of law' and secondly, 'prudens' meaning 'knowledge' or 'science' or 'philosophy'. 'Jurisprudence' therefore means 'knowledge of the law' or 'philosophy of the law'. In the Western world, 'jurisprudence' has been variously described. Julius Stone, for example, describes 'jurisprudence' as a 'chaos of approaches to a chaos of topics, chaotically delimited.' While Dias writes that books that bear the title 'jurisprudence' vary widely in subject matter and treatment because the 'nature of the subject is such that no distinction of its scope and content can be clearly determined.
Chapter 6: Culture and religion
(Juta, 2007) Moosa, Najma; Mbatha, Likhapa; Bonthuys, Elsje
This chapter deals with the relationship between gender equality and rights to practice culture and religion. In South Africa this relationship is of crucial importance to women who live according to the rules and principles of customary law and Muslim Personal Law (MPL). Both these groups of women have experienced two sets of problems as a result of the historic non-recognition of their marriages by the civil law. On the one hand, they were unable to access the remedies and enforcement of mechanisms provided by the civil law because their marriages were not recognised, while on the other hand, civil law structures could also not be used effectively to enforce the remedies afforded by MPL and customary law. They were therefore effectively denied legal remedies in the civil law. Because married women are usually economically dependent on husbands, non-recognition protected husbands against financial claims by wives, thus exacerbating existing economic inequalities.
A comparative study of the South African and Islamic law of succession and matrimonial property with especial attention to the implication for the Muslim woman
(The University of the Western Cape, 1991) Moosa, Najma
As a Muslim south African trained in South African Roman-Dutch law, I have been exposed to experiences/situations which indicate a conflict between the principles of South African Roman-Dutch law and Islamic law of succession. This has prompted me to do some research into the history of Islamic law, the spreading of Islamic law over large parts of the world and the question of the recognition and application of Islamic law in South Africa. The central theme of this study is the Islamic law of succession in so far as it affects women. Chapter One of my dissertation contains a brief historical background which outlines on the one hand, the nomadic society, women and succession in pre-Islamic Arabia and on the other, their improved position upon the advent of Islam {seventh century) . It ends with the historical background of Muslims in South Africa. Chapter Two is devoted to the marriage property background against which both the South African and Islamic law of succession operate. Thereafter, in Chapter Three, the South African law and Islamic law (substantive rules} of succession are compared. These include both intestate and testamentary succession, the latter being limited on the Islamic side. Chapter Four, with the backgrounds sketched in Chapters Two and Three, demonstrates the visible internal conflicts between the Islamic and South African law of marriage and succession as encountered in South African practice. After evaluating statistics and alternative solutions in this regard, and having arrived at certain conclusions, I propose that recommendations about the possible recognition and application of Muslim Personal Law in South Africa which is at present enjoying the attention of the South African Law Commission in Project 59 should see fruition and be implemented as it can only assist the society in closer inspection are riddled with controversies. Chapter Six explores the treatment received by a Muslim widow, daughter and mother in terms of their respective fixed "intestate" shares and its implications for modern twentieth century society. which we live since it is a vital aspect affecting our daily lives {and deaths!). Chapter Five covers the whole aspect of the Muslim testator or testatrix' s limited "freedom" of testation and reforms by certain forerunner countries in this regard which on closer inspection are riddled with controversies. Chapter Six explores the treatment received by a Muslim widow, daughter and mother in terms of their respective fixed "intestate" shares and its implications for modern twentieth century society.
A comparative study of the South African and Islamic law of succession and matrimonial property with especial attention to the implications for the Muslim woman
(University of Western Cape, 1991) Moosa, Najma; de Villiers., F.A
As a Muslim south African trained in South African Roman-Dutch law, I have been exposed to experiences/situations which indicate a conflict between the principles of South African Roman-Dutch law and Islamic law of succession. This has prompted me to do some research into the history of Islamic law, the spreading of Islamic law over large parts of the world and the question of the recognition and application of Islamic law in South Africa. The central theme of this study is the Islamic law of succession in so far as it affects women. Chapter One of my dissertation contains a brief historical background which outlines on the one hand, the nomadic society, women and succession in pre-Islamic Arabia and on the other, their improved position upon the advent of Islam {seventh century) . It ends with the historical background of Muslims in South Africa. Chapter Two is devoted to the marriage property background against which both the South African and Islamic law of succession operate. Thereafter, in Chapter Three, the South African law and Islamic law (substantive rules} of succession are compared. These include both intestate and testamentary succession, the latter being limited on the Islamic side. Chapter Four, with the backgrounds sketched in Chapters Two and Three, demonstrates the visible internal conflicts between the Islamic and South African law of marriage and succession as encountered in South African practice. After evaluating statistics and alternative solutions in this regard, and having arrived at certain conclusions, I propose that recommendations about the possible recognition and application of Muslim Personal Law in South Africa which is at present enjoying the attention of the South African Law Commission in Project 59 should see fruition and be implemented as it can only assist the society in closer inspection are riddled with controversies. Chapter Six explores the treatment received by a Muslim widow, daughter and mother in terms of their respective fixed "intestate" shares and its implications for modern twentieth century society. which we live since it is a vital aspect affecting our daily lives {and deaths!). Chapter Five covers the whole aspect of the Muslim testator or testatrix' s limited "freedom" of testation and reforms by certain forerunner countries in this regard which on closer inspection are riddled with controversies. Chapter Six explores the treatment received by a Muslim widow, daughter and mother in terms of their respective fixed "intestate" shares and its implications for modern twentieth century society.
Debunking prevailing school views pertaining to the apostasy of alleged descendants of SHAYKH YUSUF of MAKASSAR
(UIN Sunan Kalijaga, 2020) Moosa, Najma
This article focuses on the controversial issue of apostasy pertaining to the alleged family of Shaykh Yusuf of Makassar, the Indonesian pioneer of Islam in colonial South Africa, after his demise at the Cape in the late 17th century during a period of Dutch occupation of both countries. It is reported in local and international historical and scholarly sources that the second generation grandchildren of this political exile and learned Islamic scholar converted
Decriminalising abortion in South Africa: implications for the unborn's right to life
(University of the Western Cape, 2016) Moosa, Najma
The 1975 Abortion and Sterilisation Act (ASA) was the first statute to regulate abortion in South Africa. The ASA provided that abortion was illegal. Although the default legal position adopted by it appeared to be clearly pro-life, it nonetheless allowed abortion in certain circumstances. Although much more restrictive, abortion was also allowed in terms of the common law prior to the enactment of the ASA. With the formal advent of democracy in 1994, two parallel legal processes pertaining to abortion were simultaneously taking place alongside the transition from apartheid. The first process led to the statutory legalisation of abortion in 1996 when the ASA was replaced by the current statute regulating abortion, namely, the Choice on Termination of Pregnancy Act (CTOPA). Unlike the ASA, the CTOPA assured a default legal position that clearly favoured a secular, pro-choice view. Its enactment also resulted in the offence of abortion being largely decriminalised. Since then it also became more politically correct to use the word "termination" instead of "abortion". The second process during the transition led to the adoption of a neutral position on the "right to life" clause in the interim Constitution which also contained South Africa's first justiciable Bill of Rights. A neutral position, because it is tantamount to fence sitting, implies support for either a pro-life or a pro-choice view but at the same time does not rule out the possibility of support for a combination of these opposing views. This neutral position remained unchanged in the current Constitution in terms of which a right to abortion is not clearly guaranteed and can therefore only be inferred from it. The CTOPA and the Constitution both entered into force in 1997, and in this order.This essay will address and attempt to answer the following questions: Given that, during apartheid, legislation was already in place in terms of which abortion was possible, was it really necessary to introduce a new abortion law? Why was the old law simply not amended? What may have motivated, and what was achieved by, the new law uncharacteristically coming into operation literally days before a new Constitution? How has this new law fared since its inception? Is there any scope in the provisions of both the new law and the Constitution for it to be interpreted to protect the unborn? Is there any hope that criminal law and constitutional law (public law) can be combined with the already existing private law protections to provide the unborn with further protection?
A descriptive analysis of South African and Islamic abortion legislation and local Muslim community responses
(Yozmot Heiliger Ltd, 2002) Moosa, Najma
The issue of abortion has been the subject of much debate in the recent past in South Africa. Prior to 1996 abortion legislation was punitive and therefore one with which conservative Muslims could identify. Since 1996 the law has been liberalized and replaced by a new Act. The final Constitution (1996) took a neutral stance regarding abortion. The enactment of the Choice on Termination on Pregnancy Act (1996) finally ensured this right. The Act, a critical milestone for gender equality, secured all South African women (including minors) the right to make decisions about reproduction and according to their individual beliefs
Dissolution of a muslim marriage by divorce
(Juta, 2014) Moosa, Najma
Although Muslims first arrived in South Africa more than 350 years ago and two decades have passed since the advent of democracy, their religious marriages are currently not formally recognized in terms of the (common) law. Muslim marriages are, however, in the process of being recognized through proposed legislation in the form of a 2010 ‘code’ of Muslim personal law Islam, through its primary sources, the Qur’an and Sunna, does not prohibit divorce, but strongly discourages and disapproves of it. Where divorce is inevitable, the Qur’an repeatedly encourages spouses to depart from the marriage in a dignified and decent manner, and exhorts honorable, equitable and kind treatment of divorced women. Two key objectives of the 2010 Muslim Marriages Bill5 are therefore to regulate the termination of Muslim marriages and the consequences flowing from such termination according to these broad guidelines. However, although it contains a dedicated definition clause which categorically defines Islamic law as including the primary (immutable) and secondary (less immutable) sources, the Bill does not spell out the (classical) Islamic law (Shari’a) in this regard.
An exploration of mata'a maintenance in anticipation of the recognition of Muslim marriages in South Africa: (Re-)opening a veritable Pandora's box?
(Law Faculty, University of the Western Cape, 2004) Moosa, Najma; Karbanee, Shaheena
Introduction: In Muslim personal law, the husband on pronouncing a divorce has a number of legal obligations towards his wife including maintenance and payment of outstanding dower. While there is no dispute among Muslim scholars and jurists that a wife’s right to maintenance (nafaqa) arises upon marriage as a natural consequence of it, there is no unanimity as to whether this right is extendable after the marriage ends. The position may also vary depending on the circumstances leading to the dissolution and the financial situation of the spouses. This is not surprising, as a basis for conflicting views on particular rights issues can be found in the same corpus of Islamic (common) law or Shari’a.
Exploring the concept of conciliation (ṣulḥ) as a method of alternative dispute resolution in Islamic law
(University of the Western Cape, 2020) Allie, Shouket; Moosa, Najma
This research will chart and navigate the early stages in the development, conceptualisation, and formulation of Islāmic law and the concept of ṣulḥ as a mechanism of legal redress in Islāmic law (Sharī’a). The research shows that firstly, the mechanism is deeply rooted and embedded in scriptural (Qur’ānic) and extrascriptural text namely the corpus of Ḥadīth. There is a plethora of instructions to prove that reconciliation is indeed a lofty goal which is rewarded as an act of worship. Like many other aspects of the Sharī’a, ṣulḥ is regulated by provisions of the scripture and extra-scriptural sources considered by Muslims as the (Sharī’a). Secondly ṣulḥ is also the preferred method of alternative dispute resolution because it is fluid, contractual, expeditious and one of the most effective ways of solving different types of disputes, whether commercial or family. It has therefore gained considerable traction in modern western financial industry which I think is largely due to its contractual nature and the absence of the adversarial element. As a mechanism of redress, ṣulḥ is governed by Islāmic law of contract which takes the form of an agreement which can be mutually negotiated between two or more parties. Of late it has also become the mechanism of choice in family and marital disputes.
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 Flying Hadji
(Stellenbosch: Institute for Theological Interdisciplinary Research (EFSA) in cooperation with CCAWT Research, 2000) Moosa, Najma
All things considered, becoming a Muslim theologian was high on my list of possible vocations at the end of high school. Unfortunately for me, this was not to be I was a Muslim woman with a dream at the wrong time. Instead, I became an academic lawyer schooled in secular law but specialising in an area of Islamic law called Muslim Personal Law - an area which has and continues to be manipulated by male theologians much to the detriment of Muslim women. I had inadvertently ended up with a balance - a career that would be both secular and religious. My story, although voiced as a Muslim, is not intended to be a reflection on Islam and is furthermore not divided into neat segments of context, identity and spirituality. Events in my family history, apart from being an integral part of the context, have ultimately shaped my identity and spirituality. Religion has always been an integral and accustomed part of my life. Consciously and unconsciously the seeds of Islam were implanted in my life from an early age. I went through all the phases of germination discovering my religion - from the superficial to a meaningful understanding and application of it. I have come full bloom. I was (auspiciously rather than ominously) born into the Islamic faith on Friday 13th September in my grandfather's home in Bromwell Street, Salt River, Cape Town around the time of the weekly Friday congregational prayers. My father blessed me with the name "star" after a chapter in the Qur'an. Such is the power of a name that I think all my life I have aspired to be just that. I was the left-handed, fourth daughter of six children (five girls and one son) living in an extended family. By the time I was born my paternal grandparents who hailed from India had passed on, leaving me with no fond memories of doting grandparents.
The future of African customary law
(Elsevier, 2012) Moosa, Najma
It s intended to promote discussion and understanding of customary law and to explore its continued relevance in sub-Saharan Africa…[It] considers the characteristics of customary law and efforts to ascertain and codify customary law, and how this body of law differs in content, form, and status from legislation and common law. It also addresses a number of substantive areas of customary law including the role and power of traditional authorities; customary criminal law; customary land tenure, property rights and intestate succession; and the relationship between customary law, human rights and gender equality.
How loud is too loud? Competing rights to religious freedom and property and the Muslim call to prayer (Adhan or Azan) in South Africa
(MPDI, 2021) Moosa, Najma
This article approaches the position of the call to prayer (adhan or azan) in South Africa from the perspective of both legislation and case law. Although only an unamplified adhan has religious status in Islam, Muslim religious authorities (ulama) have since the twentieth century also approved of, and permitted, an amplified adhan. The adhan has been rendered in both forms from South African mosques (masjids) for some 223 years. However, the unamplified adhan has recently come under the legal and judicial spotlight when the volume of its rendering by human voice was restricted. In August 2020, after prior attempts at municipal level and mediation had been unsuccessful, a high court in KwaZulu-Natal, South Africa, ruled that the sound of the unamplified adhan emanating from a mosque located on the premises of an Islamic institution (madrassa) in the city of Durban should not be audible within the house situated on nearby property belonging to a Hindu neighbor. Wide media coverage reported that the ruling was publicly decried and met with criticism. The Madrassa lodged an appeal in September 2020 and the matter is ongoing.

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