Research Articles (Faculty of Law)

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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.
Statutory collective bargaining: a duty of fair representation?
(Juta Law, 1993) Du Toit, Darcy
Introduction:An issue that has received little attention in our law is the nature of a union's duty vis-à-vis its membership in the course of collective bargaining and the consequences of breach of such duty. This is, in the first instance, a practical question of law and industrial relations which may determine the enforceability of disputed collective agreements. Over and above this it is a question of democracy. Trade unions are widely regarded as a means whereby individually powerless employees can gain a degree of control over their working lives and moreover, in today's political climate, over socio-economic policy and labour legislation. But such control can only be meaningful if the union itself is subject to democratic control by its members.
The small business sector: deregulation or collective bargaining?
(Juta Law, 1993) Du Toit, Darcy
Introduction:'Abraham Adamson, owner of A&A Motor Spares in Athlone, Cape Town, was dealing with a client in June 1991 when the sheriff of the court walked in and seized 21 gearboxes and various other movable assets. His [Adamson's] crime was failing to pay two of his 14 employees the overtime rates stipulated by an industrial council which a few weeks earlier he never even knew existed. So begins one of numerous press reports in the last few years recording the burdens placed on small entrepreneurs by legal regulation in general and industrial councils in particular. A senior manager of the Small Business Development Corporation (SBDC) was reported as saying that 'he is aware of 10 cases in the Western Cape where businesses were liquidated by industrial councils over the last two years, generally for non-payment of levies'. Two comments by small employers, quoted in the same report, pithily express their viewpoint: 'Either I pay them [workers] below the minimum wage or I close my doors and they lose their jobs. They prefer to have their jobs.' 'They want to tell me when I can open and close my factory at Christmas. These people are killing employment. If I comply with these rules I will have to close down my company.
Democratising the employment relationship: a conceptual approach to labour law reform and its socio-economic implications
(Juta Law, 1993) Du Toit, Darcy
Introduction: The constitutional debate in South Africa has place the related issues of democracy and increase production and redistribution of wealth centrally on the agenda. Democratisation of the employment relationship, it will be argued, it is essential to both. At first sight there has been a certain meting of minds between employers and organised labour around this question. The demand for greater democracy in the workplace has been raised increasingly from the side of trade unions and the mass democracy movement in recent years while some employers have taken initiatives of their own to involve workers in decision-making.
Women and the Islamic Law of Intestate Succession
(African Law Review, 1994) Moosa, Najma
Islamic law of succession consists of two parts mainly voluntary and compulsory. The voluntary part reers to the limited freedom of testation where a muslim can dispose of 1/3 of his or her assets via a will. Normally this 1/3 cannot be bequeathed to the compulsory (Quranic) heirs whose shares are fixed and determined by divine revelation. However, this general law is subject to exception in that it could take place if heirs consent thereto after the testator's death. It must be noted that there is no increase in testamentary freedom.
Workers in small business: the forgotten people
(Juta Law, 1994) Du Toit, Darcy
Introduction:The present-day concentration by government, private sector organizations and academics on the small and informal business sectors is undoubtedly a sign of the times. Until some 20 years ago small business attracted little attention, the term 'informal sector' had hardly been heard of. The limits to growth experienced in the industrialized countries from the mid-1970's onwards, however, and the deepening malaise of what had previously been regarded as the 'developing' world, brought about a sea-change in attitudes. It became obvious that corporate investment, local or foreign, was providing jobs for only a minute fraction of the destitute workseekers flooding third world cities. Even in the developed countries full employment was a thing of the past. In this climate policy-makers came to pin their hope on growth of the informal sector as a means of absorbing the millions of people whom the formal sector could not accommodate
An ill contractual wind blowing collective good? Collective representation in non-statutory bargaining and the limits of union authority
(Juta Law, 1994) Du Toit, Darcy
Induction:In the statutory arena one facet at least, the interaction between union and employer parties at industrial council level, is defined by the Labour Relations Act 28 of 1956 (LRA). The other crucial nexus, that between the union and its constituents, is not expressly defined but can be construed in the context of the statutory process. This may be one reason why the issue has given rise to relatively little litigation or debate. No comparable framework exists within which to situate non-statutory bargaining. Case law on the subject, though on the increase, is still meagre. Three such cases are reviewed below. All three turn on the question whether agreements (purportedly) entered into by union officials had in fact been authorized by members of the union and, hence, whether the agreements were valid. In all three cases the agreements were upheld though with little in the way of a common rationale to underpin future legal development. This article will argue that the key to the development of a coherent approach lies in a more consistent application of the principle of majoritarianism.
The interim Constitution and Muslim personal law”
(Cape Town Community Law Centre, 1995) Moosa, Najma
Muslim women face the same status problems in the private and public spheres of life as their non-muslim counterparts but it is alleged that, as members of a particular religious community, they experience another inequality. To assess this assertion, it is necessary to consider how gender issues are dealt with not only in Islamic law, but also in the light of the authentic spirit of the Koran. With an eye to how South Africa's final constitution might address the status of Muslim personal law and the related question of the position of Muslim women, this chapter examines the issue of Muslim Personal Law in South Africa and the constitutional provisions relating to the rights of women in a number of Muslim countries.
Arbeidsreg in 'n maatskaplike verband
(Juta Law, 1995) Du Toit, Darcy
Introduction: 'n Regsteksboek is nie bloot 'n uiteensetting van regs reels nie. Dit is, in die eerste plek, 'n seleksie van bespreekingspunte en, terselfdetyd, 'n evaluasie van die selekteerde gegewens wat uitgaan van 'n bepaalde referensiekader. Tog konfronteer die eindproduk die student as meer as net 'n boek. Dit word bestudeer (nie noodwendig onkrities nie) as 'n objektiewe verklaring van die onderwerp of, tenminste, van die "feite" wat jy moet ken om te slaag. Direk of indirek beinvloed so 'n boek, en dus die skrywer daarvan se uitgangspunte, die sienswyse waarmee groot getalle toekomstige regspraktisyns en -akademici die betrokke vakgebied sal begryp, die manier waarop hulle geneig sal wees om besondere reels te interpreteer en die doelstellings wat hulle daarmee identifiseer.
Muslim Personal Law - to be or not to be?
(Juta Law, 1995) Moosa, Najma
Introduction: The first Muslims had arrived at the Cape from the Dutch colonies in the East Indies (now Indonesia) and the coastal regions of Southern India from anywhere around 1652-1658. Despite having been granted the freedom to practise their religion since 1804, Muslims could not give legal effect to their personal laws for three hundred years as social restrictions and political inequalities prevailed until recently. It is anticipated that the rapid changes taking place in South Africa since the democratic elections of 1994 will rectify this situation expeditiously.
Corporatism and collective bargaining in a democratic South Africa
(Juta Law, 1995) Du Toit, Darcy
Introduction:The theme of 'emerging models of worker participation and representation' is uniquely appropriate in relation to South Africa today. In February 1995 a draft labour statute, designed to replace the existing Labour Relations Act and corresponding statutes applicable to the public, education and agricultural sectors, was published One of its more radical innovations is the proposal for a system of worker participation by means of elected bodies to be known as 'workplace forums'. The draft law has turned out to be controversial, and at the time of writing it is not clear what its fate will eventually be. Inter alia, the chapter on workplace forums has reportedly encountered opposition from trade unions as well as employers. Debate of this nature, however, is integral to the emergence of new industrial relations models. This article will attempt to evaluate the proposed system of worker participation and to explore some of its implications which may be of interest internationally. In particular, it will focus on the envisaged relationship between workplace forums and trade unions - a question that will be crucial to the success or failure of the project.
Shari'a in South Africa
(Aboriginal Law Bulletin, 1995) Moosa, Najma
Muslim Personal Law (MPL) is often practised to the detriment of Muslim women in many countries. The Qur'an is a religious text considered by Muslims to be the literal word of God. It is a primary source of Islamic law and contains approximately 80 verses dealing with legal matters, most of which pertain to personal laws of family and inheritance. It is in the areas explicitly referred to by these verses that one finds little or no change in various Muslim countries. The term MPL has been coined by various Muslim countries and jurists because it pertains to, among other subjects, marriage, divorce, inheritance, polygyny, custody and guardianship which fall under the category of family law. Moreover, it is interesting to note that all laws affecting the status of Muslim women have historically been relegated to MPL (private sphere) The Qur'an is separated from the classical formulation of Islamic law or Shari'a by a process of legal development lasting more than two centuries. During this period the Qur'anic norms underwent considerable dilution, often to the detriment of women. It is common for Islamic law, which is the interpretation and application of the primary sources by early Muslims, to be mistaken for Islam itself.
Small enterprises, Industrial Relations and the RDP
(Juta Law, 1995) Du Toit, Darcy
Introduction: The small, medium and micro enterprise (SMME) sector spans an immense sweep of economic activity, from entirely non-regulated to entirely regulated businesses, 'from the survivalist activities of informal sector hawkers to high-tech manufacturing enterprises employing fewer than 200 workers'. It comprises, in reality, a multitude of subsectors of different branches of the economy, each with its own specific issues, problems and potentialities. In addressing the issue of industrial relations, it will be neither appropriate nor fruitful to try to deal with this multifaceted 'sector' in its entirety. In the first place, most informal enterprises are conducted by single individuals, families or partnerships and do not involve employment relationships in the normal meaning of the term. In the second place, much informal activity is conducted by unemployed persons seeking merely to maintain themselves until jobs become available. Such enterprises are transient and difficult to target or track for purposes of industrial relations policy. Thirdly, structured collective labour relations as we know them are in many respects premised on the realities of larger workplaces and may be less appropriate to workplaces employing only one, two or a handful of people.
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.
The interim and final constitutions and Muslim Personal Law: implications for South African Muslim women
(Stellenbosch Law Review, 1997) Moosa, Najma
All women face similar status problems in the private and public spheres of life but it is alleged that, as members of a religious community, Muslim women experience another inequality. This double inequality has resulted in a dichotomy between their public lives governed by secular laws and constitutions, and their private lives governed by religion. To date this conflict remains unresolved in various Muslim and non-Muslim countries. As will be indicated, commercial, criminal and penal codes were easily secularised but personal codes remained governed by religion. Traditional interpretations of Islam govern personal laws and as a result personal law codes conflict with the constitutions of Muslim majority and minority countries. While the constitutions of these countries guarantee equal rights to all citizens, the personal law codes privilege men over women in the areas covered by these personal laws resulting in the inequality of the sexes.' There does not, however, appear to be any Islamic justification for this state of affairs. The practice of Muslims today, as opposed to the spirit of equality in Islam as contained in its primary sources, discriminates against women.
Muslim Personal Laws affecting children: diversity, practice and implications for a new children's code for South Africa
(Juta Law, 1998) Moosa, Najma
Introduction: Marriage is seen as an institution for, among various objects, the procreation of children. Children in Islam are ideally seen as the fruits of marriage-for mothers as homemakers to love and nurture and for fathers to provide materially, presumably without any distinction between males and females. Sons, however, are specifically perceived as part of the wealth of men. Seventh-century Qur'anic verses of this nature are not interpreted any differently today, even though the situation in society has changed. There are mothers who are unwilling or unable merely to fulfil the role of homemaker, as there are fathers who are unwilling or unable to be the sole providers for their families. Sons become men and daughters become women, and in this way the vicious cycle is perpetuated. These verses also set the scene for the rights of Muslim children and the problems that these rights hold for any legislation, including human-rights instruments, whose provisions might apply equally to children, irrespective of sex and religion. In this paper, though, it is argued that the rights of children in Islam, seen in proper perspective, can be synchronized to conform to the requirements of a new children's code in South Africa (whether in the form of a revised Child Care Act or entirely new piece of legislation) and international instruments, as indeed should be the case the world over.
Human rights in Islam
(Juta Law, 1998) Moosa, Najma
Introduction: Conflicts between human rights and religion do exist. Is this true of Islam? The answer is not as simple as 'yes' or 'no'. Although an examination of human rights in an Islamic context will reveal its theocentric rather than secular and judicial basis, this paper asserts that, notwithstanding (later) Islamic law interpretations to the contrary, (original) Islam is compatible with the modern notion of human rights. The fact that some Muslim countries have opted for Western constitutional models because of uncertainty as to what constitutes Islamic constitutional law clearly supports this assertion. On the other hand, because of the Western origin of modern constitutions, countries like Saudi Arabia have no formal written constitution.
Women's eligibility for the qadiship (judicial office)
(AWRAQ, 1998) Moosa, Najma
There is no express Qur'anic text or tradition (Sunna) of Prophet Muhammed (P.B.U.H) for against the idea of women occupying the office of judge (qadi) which implies that God never intended to discriminate in this area. However, scholarship has developed which deny women this right. These juristic rules are often perceived as those of Islam itself. It is therefore not surprising that there is no historical data referring to the possible appointment of women judges. Females were considered 'unfit for the difficulties of high office and for judgments being made dependent on them.
The interim and final constitutions and Muslim Personal Law: implications for South African Muslim women
(Juta Law, 1998) Moosa, Najma
Introduction: All women face similar status problems in the private and public spheres of life but it is alleged that, as members of a religious community, Muslim women experience another inequality. This double inequality has resulted in a dichotomy between their public lives governed by secular laws and constitutions, and their private lives governed by religion. To date this conflict remains unresolved in various Muslim and non-Muslim countries. As will be indicated, commercial, criminal and penal codes were easily secularised but personal codes remained governed by religion. Traditional interpretations of Islam govern personal laws and as a result personal law codes conflict with the constitutions of Muslim majority and minority countries. While the constitutions of these countries guarantee equal rights to all citizens, the personal law codes privilege men over women in the areas covered by these personal laws resulting in the inequality of the sexes. There does not, however, appear to be any Islamic justification for this state of affairs. The practice of Muslims today, as opposed to the spirit of equality in Islam as contained in its primary sources, discriminates against women.
Muslim divorce and the 1996 Divorce Amendment Act: The cart before the horse?
(De Rebus, 1999) Moosa, Najma
The purpose of this article is to clarify some issues regarding Muslim divorces which have been the topic of debate in previous issues of De Rebus (1997 DR 495; 1998 (Jan) DR 55; 1998 (Aug) DR 31). The Divorce Amendment Act 95 of 1996 as it is discussed in this article has relevance only for Muslim parties who intend to terminate a lawful civil marriage but who have also entered into a religious union with each other only. Polygynous unions as such are therefore not discussed here. (For detail in this regard see my LLM thesis A comparative study of the South African and Islamic law of succession and matrimonial property, special attention to the implications for the Muslim woman (University of the Western Cape 1991 ).) Nonetheless, because practitioners often confront legal problems when dealing with matters of Muslim Personal Law (MPL), I find it necessary also to elaborate on the status of that law in South Africa. Furthermore, while a brief background of Muslim divorces is provided, a detailed analysis will be the subject of an article intended to be published elsewhere later this year.

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