Book and Book Chapters (Faculty of Law)

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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 role that lay Muslim judges play in state courts and religious tribunals in South Africa: A historical, contemporary and gender perspective
(Kluwer, 2002) Moosa, Najma
Taking the example of a religious adjudicative body for Muslims in the Western Cape in South Africa, this article analyses the symbiotic working relationship between state courts and non-state dispute settlement bodies, in which the lines of interference are fluid and not always predictable. Seeing the need for adapting international legal anthropological investigative methods to the particular situation of South Africa, the author highlights the inadequacies of both the state and non-state bodies in solving religious disputes between factions seeking control over the Muslim communities and in avoiding the perpetuation of Islamic rules that discriminate against women.
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.
Women, gender and child marriage: Sub-Saharan Africa, overview
(Encyclopedia of Women and Islamic Cultures, 2006) Moosa, Najma
This entry provides an overview of early marriage of girls under the age of 18 from a human rights and gender perspective. It examines international conventions relating to child marriage and critiques the application of Islamic law (Shar'ia) in Sub-Saharan Africa.
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.
Enterprise responsibility for sexual harassment in the workplace: comparing Dutch and South African law
(Kluwer Law International, 2008) Du Toit, Darcy
Introduction: Sexual harassment in the workplace is generally deplored, destructive of working relationships and unlawful. Despite this it is widespread and possibly on the increase. In Spain, according to a 2006 survey, 7,9% of women workers had been harassed by managers and colleagues during the previous 12 months. In the Netherlands the number of employees who had suffered sexual harassment by fellow-employees in the previous 12 months doubled from 2,5% in 2000 to 5,3% in 2003. Why, despite all measures to discourage it, does it remain so disturbingly prevalent?
South Africa: Indian Law
(Oxford University Press, 2009) Moosa, Najma
The South African legal system comprises common law (Roman-Dutch and English law developed through case law) legislation and (mainly African) customary law with elements of Muslim, Hindu, Jewish and Zoroastrian (Parsi) law. Dutch occupation (1652) was followed by two British occupations (1795 and 1806) separated by a short Batavian (Dutch) rule in 1803. British occupation ended in 1910 when the four territories of the Cape, Natal, Free State and Transvaal formed a union. In 1931 South Africa became independent within the Commonwealth; it became a Republic in 1961.
The prohibition of unfair discrimination: applying Section 3(d) of the Employment Equity Act
(Juta Law, 2009) Du Toit, Darcy
Introduction: This chapter sets out to examine the concept of “unfair discrimination” in the employment context as it has evolved over the past three decades. It will note the efforts made by the courts to clarify it and suggest that, in the process, the opposite may have happened. And it will argue that much of this endeavour was unnecessary because, all the time, an answer was readily at hand. Since 1998 at least a peremptory signpost to that answer has been provided by section 3(d) of the Employment Equity Act of 1998 – hence the title above.
The Gift and the meaning-giving subject: A Reading of Given Time
(Springer, 2010) De Ville, Jacques
In this essay the relation between justice and the gift in Derrida’s thinking is explored. The essay shows that an understanding of the ontological difference or the relation between Being and beings in Heidegger’s thinking as well as Freud’s speculations on the death drive are essential to comprehend the ‘concept’ or ‘notion’ of différance as well as the gift in Derrida’s thinking. The analysis points to the complexity of Derrida’s thinking in his contemplation of the relation between justice and law and the need for a broader investigation to understand what is at stake in this regard. An exploration of the gift shows that Derrida’s thinking on justice is not ‘relativistic’ as is often assumed and that the gift can in a certain way function as a ‘guide’ in questions of constitutional interpretation.
Section 54: Obligation to report commission of sexual offences against children or persons who are mentally disabled
(Juta Law, 2011) Sloth-Nielsen, Julia
INTRODUCTION: The duty to report the knowledge of the commission of sexual offences against certain vulnerable victims is newly provided for in this section of the Criminal Law (sexual Offences and Related Matters) Amendment Act. It draws inspiration from two prior reporting obligations related to the reporting child abuse and neglect: the first encapsulated in the Child Care Act 74 of 1983, now repealed in toto by the Children's Act 38 of 2005 (as amended); and the second provided for in s 4 of the Prevention of Family Violence Act 133 of 1993. The latter section, which was not repealed by the coming into operation of the Domestic Violence Act 116 of 1998, has also been replaced by the coming into operation of the Domestic Violence Act 116 of 1998, has also been replaced with the Children's Act 38 of 2005, which came fully into force on 1 April 2010.
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.
Imperfect transition – local government reform in South Africa 1994-2012
(SUN Press, 2012) Powell, Derek
Local government is a mirror of the larger political and economic forces, cleavages and problems that are shaping South African society. It is these deeper fault lines in society, rather than the Zuma government’s turnaround strategy or the 2011 local elections result, which will drive future policy and determine its effects. This is the first lesson of local government reform in all four terms of national government examined in this chapter. In each term, national policy reforms were moulded by shifting political and economic circumstances and larger national interests, not simply by the unfolding logic of the original blueprint for local government in the 1998 white paper. The outcome of eighteen years of policy reform, however, was not the new society imagined in the white paper, but an imperfect transition that is local government today: where peaceful electoral competition coexists with violent public protests, racial group areas endure in fact, even if not in law, pockets of good governance survive amidst systemic corruption and mismanagement, and national policy goals consistently exceed local government’s capacity to deliver them and the economy’s skills base. The second lesson flows from that reality – due to the fact that the problems of local government are so nested in the broader problems of our society, further local government policy reform and sweeping national turnaround strategies are likely to have imperfect impacts on ‘the problem of local government’ in South Africa.
Modern African childhoods: does Law matter?
(Oxford University Press, 2012) Sloth-Nielsen, Julia
INTRODUCTION: This paper poses a question often aimed at lawyers, especially when they straddle a culturally diverse and contested terrain of human experience, such as the role of children and families in society: does law matter? The question is all the more pertinent in African contexts, due to the pervasive poverty, prevalence of practices harmful to children, and perceived inability of weak states to put legislative intentions into effect.
An overview of post-divorce support for muslim children in the context of South African Law, Islamic Law and the proposed 2010 Muslim Marriages Bill
(International Assossiation of IT Laywers, 2012) Moosa, Najma
After 350 years of non-recognition, and following a protracted procedure, Muslim religious marriages and divorces are currently in the process of being directly and formally recognised in terms of South African law. A 2010 ‘code’ of Muslim Personal Law has been framed that can satisfy and synthesise both diverse Muslim (ideological) perspectives and the relevant constitutional commands (guarantees of religious freedom and equality to all South Africans). One of the key objectives of the proposed legislation is to regulate the consequences flowing from the termination of such marriages through divorce. My paper provides an analytical overview of the legal consequences flowing from a Muslim divorce in the context of South African law, Islamic law and the proposed 2010 Muslim Marriages Bill and focuses on the post-divorce support and position of minor and dependent Muslim children. As such, it is limited to the areas of guardianship, care, access and maintenance.
The reconciliation of transnational economic, social and cultural human rights via the common interest
(VerLoren Van Themaat Centre, 2012) Scholtz, Werner
In general, human rights obligations are restricted to states' actions within their own territory in relation to their own citizens and residents. However, article 55(c) of the Charter of the United Nations refers to the promotion of 'universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion', while article 56 affirms that '[a]ll Members pledge themselves to take joint and separate action, in cooperation with the Organisation, for the achievement of the purposes set forth in article 55'. Thus, states must promote human rights both individually and jointly. Furthermore, the Vienna Declaration affirms that the promotion and protection of human rights is a legitimate concern of the international community. Therefore, the implementation of human rights is clearly not a purely domestic matter. This is also evident from the horizontal operation of human rights between states as it is actually states which are the principal addressees of international human rights law. Inter-state complaint procedures are used to 'act in the common interest of protecting human rights'. Furthermore, jurisprudence, international treaties, soft law, and customary international law provide examples of a progressive development of the extension of the scope of human rights obligations beyond state borders. In particular, the International Covenant on Economic, Social and Cultural Rights (ICESCR), has interesting provisions which reveal that the 'existence of extraterritorial obligations in relationship to international cooperation and assistance based on specific provisions of the Covenant [is] clear'.
A preliminary appraisal of the normative gains for children’s rights in the Angolan Children’s Act (act 25/12 of 22 August 2012)
(Jordan Publishers, UK, 2013) Sloth-Nielsen, Julia; Mandlate, Aquinaldo
The United Nations Convention on the Rights of the Child (UNCRC) represents the most significant step towards the advancement of children’s rights globally. Article 4 of the UNCRC requires states to take concrete measures to ensure the harmonisation of laws relating to children with the Convention’s substantive provisions, including legislative and administrative measures. A similar duty prevails under the regional treaty, the African Charter on the Rights and Welfare of the Child (ACRWC). Angola is the most recent example of an African country which has enacted a children’s statute to bring domestic law in line with international law requirements. The traditional link between children’s rights and family law is evident in many UNCRC and ACRWC requirements. These include: the child’s right to know and be cared for by both parents who shall bear responsibility for the upbringing and development of the child (UNCRC, art 18(1) and ACRWC, arts 19 and 20); the child’s right not to be separated from his or her parents against their will unless so determined by competent authorities (UNCRC, art 9(1); ACRWC, art 19(2)); the right of a child who is separated to maintain personal relations and direct contact with both parents (UNCRC, art 9(2); ACRWC, art 19(3)), and the child’s right to protection from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, whilst in the care of parents, legal guardians or any other person who has the care of the child (UNCRC, art 19(1); ACRWC, art 16(1)).
The ghostly dance of Zarathustra
(2013) De Ville, Jacques
Reading of C.W. Maris’s Nietzsche-Niëzky-Nijinsky: De Dans van Zarathustra (2004) and De Dans van Zarathustra: Nietzsche en de vrolijke rechtswetenschap (2006).
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.
Protecting orphans and vulnerable children in Lesotho: an assessment of the Children’s Protection and Welfare Act, 2011
(Jordan Publishers, UK, 2014) Sloth-Nielsen, Julia
INTRODUCTION: This chapter reviews specific aspects of the Children’s Protection and Welfare Act 2011 of Lesotho, insofar as they pertain to the situation of orphans and vulnerable children. The chapter commences with a brief outline of the context in which the legislation was adopted, including a brief overview of relevant country data. The substantive aspects of the Act pertaining to orphans and vulnerable children are thereafter discussed. Notably provisions relating to non-discrimination, to health, to registration of orphans and vulnerable children, to protection of surviving children’s property and provisions concerning fostering and adoption are featured. Finally an overall assessment of the scheme of the Act in addressing the plight of orphans and vulnerable children is given.
Law and justice at the dawn of the 21st century: Essays in honour of Lovell Derek Fernandez
(University of the Western Cape, 2016) Martin, Bernard; Koen, Raymond
Essays in honour of Lovell Derek Fernandez, Lawyer, Linguist, Mensch

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