Book and Book Chapters (Faculty of Law)

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Constitutionalism and electoral authoritarianism in Ethiopia: From EPRDF to EPP
(Oxford University, 2020) Zemelak, Ayele
Ethiopia has had little experience of democratic political systems. For centuries it was a monarchy, ruled by successive emperors who traced their political authority to divine sources as opposed to the people.1 Although Emperor Haile Selassie promulgated Ethiopia’s first constitution in 1931, which was revised in 1955, it was meant more to constitutionalize his autocratic rule rather than entrench a democratic system. Indeed, the constitution established a bicameral parliament with a chamber of deputies (the lower house) and a senate (the upper house).2 The house of deputies was composed of elected representatives; however, the elections were held on non-partisan basis, since forming a political organization was not then allowed. Moreover, only those owning property in the relevant electoral districts could run as candidates in the elections to the chamber of deputies.3 The Emperor retained the prerogative to select members of the senate.4
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.
South Africa: Homosexual Muslims in South Africa: Some legal implications, including constitutional, marriage and succession’
(Intersentia, 2022) Moosa, Najma; America, Zaahirah
This chapter focuses on the succession rights and testamentary freedom of male (gay) and female (lesbian) homosexuals in Islam and in South Africa. It highlights that, although the practice of male homosexuality and same-sex marriage, rather than a mere homosexual sexual orientation, are prohibited in Islam, Muslim scholars and religious authorities (ulama) hold opposing views in this regard. Contrarily, the final Constitution of South Africa (1996) protects homosexuals from unfair discrimination on grounds of sexual orientation regardless of religion or gender. Judicial intervention has also resulted in male sodomy being decriminalised, same-sex marriages being legalised and succession laws being amended, to protect homosexuals in unrecognised permanent same-sex partnerships from unfair discrimination. A homosexual orientation and homosexuality may not be treated as impediments to inheritance because of the heteronormative nature of the Islamic law of succession.
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.
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.
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.
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.
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.
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.
Parental Care and the Best Interest of the Child in Muslim Countries
(T.M.C. Asser Press The Hague, 2017) Moosa, Najma
This chapter on South Africa critically analyses the evolution of the concept of the best interests of the child, and specifically how it pertains to the fields of care (custody), contact (access), guardianship and maintenance (support), which are all part of parents’ responsibilities and rights, and impact on the legal position of Muslim children. This chapter compares and contrasts Muslim Personal Law (MPL) and practices pertaining to children with those of South African law in order to ascertain whether they comply with, conflict with or compromise the ‘best interests’ concept paramount in, and permeating, South African law in general and international and regional instruments. In doing so, the chapter reviews the position of Muslim children and the milestones in child law in South Africa prior to and since democracy with a focus on three pieces of legislation since democracy: the Constitution (1996), the Children’s Act (2005) and the Muslim Marriages Bill (MMB) (2010).
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.
Federalism under pressure: Federal ‘health’ factors and ‘co-morbidities’
(Routledge, 2021) Steytler, Nico
The Covid-19 pandemic has been a ‘focusing event’ (Béland et al. 2020) for federalism like no other, placing it under the microscope and giving rise to the three questions set out in the introduction of this book. Each gives rise to a number of subquestions. First, how did federal systems respond to the pandemic during the first critical period of 2020, when quick, concerted, and effective action was necessary to limit the virus and its dire socio-economic consequences? What were the modalities of action? How did they impact on the constitutional distribution of powers – did they lead to an increase in centralisation or decentralisation? Did intergovernmental relations (IGR), the lifeblood of federal systems, work efficiently or at all? What happened to intergovernmental fiscal relations?
Controlling public health emergencies in federal systems
(Routledge, 2021) Ayele, Zemelak Ayitenew; Fessha, Yonatan Tesfaye
It was merely a day after the World Health Organization (WHO) declared the coronavirus disease (Covid-19) a global pandemic that Ethiopia recorded its first case of infection. On 12 March 2020, a week after entering the country from Burkina Faso, a 48-year-old Japanese national presented himself at a public health centre in the capital city, Addis Ababa, and was diagnosed as having Covid-19. The number of cases in Ethiopia’s estimated population of 110 million climbed steadily in the following months, and by the end of October some 96,000 people were infected in what is one of the most populous countries in Africa.
Introduction: How federations combat Covid-19
(Routledge, 2021) Steytler, Nico
On 31 December 2019, the first cases of the coronavirus, Covid-19, were identified in Wuhan City, China. Its dramatic rate of transmission and deadly effects soon led to the city’s shutdown, but not before it took wing and, borne by travellers, began alighting in other countries. Very quickly it spread throughout Asia and Europe and then further afield to North America, South America, Africa, and Australasia. By the beginning of March 2020, nearly every country in the world had recorded cases of infection, and on 11 March 2020 the World Health Organization (WHO) declared Covid-19 a pandemic.
South Africa: Surfing towards centralisation on the Covid-19 wave
(Routledge, 2021) Steytler, Nico; de Visser, Jaap; Chigwata, Tinashe
When the Covid-19 pandemic reached its shores between February and March 2020, South Africa was already in a vulnerable situation – socially, economically, and politically. Although the country’s population, estimated at 59.6 million in 2020, is two-thirds urban, thus facilitating the spread of the virus, its age cohorts mitigated against Covid-19’s devastating impact – 28.6 per cent of the population is below 15 years old, and only 9.1 per cent is 60 years and older. Nevertheless, other factors placed the country at heightened risk. More than half of the population is poor, and the unemployment rate stands at 42 per cent (Statistics South Africa 2020); in South Africa, one of the most unequal countries in the world, the poor and unemployed are predominantly black. In 2018, social grants were, after salaries, the second main source of income for 45.2 per cent of households, with about 13.1 per cent of households living in informal dwellings.
The effects of reporting on the realisation of children’s rights in Central Africa
(Pretoria University Law Press, 2020) Usang, Maria Assim
State reporting is an integral part of the obligations to respect, protect, promote and fulfil children’s rights as set out in global and African human rights instruments, that is, the United Nations Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (African Children’s Charter). States parties to these instruments are under an obligation to report on the measures they have taken towards realising the rights contained in them. This entails reporting on progress made and challenges encountered while trying to realise children’s rights to the United Nations Committee on the Rights of the Child (UN Children’s Committee) and the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee), respectively
Human rights and the transformation of property. By Stuart Wilson
(Juta, 2021) Davis, Dennis
A book devoted to the transformation of law, in this case property law, which is published in South Africa is cause for celebration. Such a work devoted to South African law is rarer than the proverbial dentures of a hen. The opening holds great promise. Stuart Wilson graphically describes the occupation of inner Johannesburg by desperately poor people, living on the margins, in search of an urban dream. They now occupy a shell of a penthouse that was once part of an urban dream from a previous era.
The interaction between family law, succession law and private international law: An introduction
(Intersentia, 2021) Scherpe, Jens; Bargelli, Elena
At the national level, the rules of substantive family and succession law work with private international law rules created specifically for these substantive laws. Hence, there cannot be any question that there is an interaction between the substantive family and succession law and private international law and that they significantly influence each other. However, over the last 20 years, private international law instruments by the European Union (EU) in family law, and more recently also in succession law, have replaced or at least supplemented national private international law instruments. Given that these the instruments are intended to apply to all EU Member States, and thus to jurisdictions with different legal traditions and vastly different approaches to family and succession law, it was inevitable that frictions would arise.
Equity
(Oxford University Press, 2021) Scholtz, Werner
This chapter critically analyses the notion of equity in international environmental law. It begins by discussing the meaning of equity in international law and briefly reflecting on familiar examples of the manifestation of equity in international environmental law treaties. The prominence of intergenerational and intra-generational equity in international environmental law warrants a subsequent critical analysis of the content, legal status, and relationship between these forms of equity. This discussion indicates that although the two components of equity may prima facie be in conflict, they constitute important complementary aspects of sustainable development. The chapter then calls for the progressive development of aspects of intra-generational and intergenerational equity that may have profound consequences for international environmental law.

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