Constitutional Legitimacy of Islamic Law of Wills in South Africa
Constitutional Legitimacy of Islamic Law of Wills in South Africa
Mohamed Hoosain Sungay
Abstract: The South African law provides “the right of an individual to dispose of his or her property on death as he or she pleases”.1 Furthermore, the Supreme Court of Appeal has ruled in the case of BoE Trust Ltd NO and Others, that the principle of freedom of testation is perfectly balanced against constitutional imperatives regarding non-discrimination and equality. The same principle of freedom of testation is provided by Shari’a, although a Muslim’s will may have impeded the normal Shari’a rules of inheritance, i.e., a will may allow share in inheritance to a child born out of wedlock or to an adopted child who are otherwise not entitled to inheritance according to Shari’a rules. Likewise, the freedom of testation in both South African law and Shari’a should allow South African Muslims to grant the male double the share of the female, which is in accordance with the Shari’a rules of inheritance. However, the constitutional legitimacy of this type of will is frequently questioned by gender equality advocates. This article examines the constitutionality of Islamic will, particularly, the right of the testator to grant the male double share of the female. It argues that all South African citizens have the right to religion as contained in the Bill of Rights found within the Constitution of the Republic of South Africa 1996, which extends to the right of testation in accordance with religious beliefs. Therefore, the application of the Islamic law of wills (based on the Shaafi’ee school of thought) in this regard, is constitutional. The article suggests that instead of criticising Islamic law of inheritance or the Muslim testators’ choice to give more to male as compared to female heirs, the focus should be on how the practice of will-making by Muslims can be reformed to afford the female the same as their male counterpart.

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