An Analysis of the Islamic Law Based Developments in the South African Law of Succession

Abstract

South Africa is a secular state with a constitution that guarantees the right to freedom of religion and the right not be discriminated against on religious basis. Over three quarter of a million Muslims live in South Africa today. There has (to date) been no legislation enacted in South Africa that gives effect to Islamic personal law. This article analyses the accommodation of the right of South African Muslims married in terms of Islamic law to inherit in terms of South African law as a result of the developments in the case law and contextual interpretation of the existing statutes by the South African courts. This article first analyses the recent developments and the existing position with regard to the right to inherit under the law of testate succession. This is followed by an analysis of the right to inherit under the law of intestate succession. The developments are then compared to the position in Islamic law of testate and intestate succession. The article concludes with a finding that the developments are not consistent with Islamic law. A recommendation is made that South African Muslims should draft and execute Islamic wills in order to ensure that their estates devolve in terms of Islamic law upon their demise. A further recommendation is made that in line with Section 15(3) of the South African Constitution, the South African government should consider enacting legislation that gives effect to the Islamic law of succession.