South Africa: Homosexual Muslims in South Africa: Some legal implications, including constitutional, marriage and succession’

Abstract

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.