Can Islamic law of testate and intestate succession pass constitutional scrutiny in South Africa?
 

Author:

N Moosa
 

Summary: 

According to Islamic law of succession, Muslim testators can bequeath only up to one-third of their estates in a will to their beneficiaries of choice, while the remaining two-thirds must, by default, be distributed as inheritance to designated heirs in prescribed shares in terms of intestate succession. If no bequest is made, the entire net estate is distributed to the deceased’s heirs. Combined with this is an inherent half share to a Muslim female. The rationale for these views is based on a trio of succession-related verses in the Qur’an and, essentially, two of Prophet Muhammad’s teachings. This traditional view was previously and still is generally accepted and promoted by most South African Muslim religious authorities (ulama) and academic scholars. This article revisits this established principle of Islamic law through a progressive lens that emphasises gender equality.  Drawing from personal experience and practical examples, the author re-examines the primary sources for the principle to ascertain whether it would withstand judicial scrutiny if challenged in a constitutional, secular democracy where the rights to freedom of testation and religion are equally guaranteed. To this end, the article provides an updated overview of the Islamic and South African laws of testate and intestate succession, critically re-examines testate and intestate succession in the Qur’an and Sunna, highlights practical examples and potential (constitutional) implications of the application of the Islamic law of succession in South Africa and the viability of tools used to augment or equalise the inheritance of women and children, and  proposals and recommendations for the way forward.


Link to Journal article