ISLAMIC LAW IN SOUTH AFRICA

Political changes in South Africa have had a big impact on the country’s judicial system. This is especially noticeable in the attitude of our judiciary towards Islamic law.

South Africa has gradually been accepting and recognising the cultural and religious plurality in the country since the implementation of the Constitution in 1996. In that year, the Cape High Court, in Ryland v Edros, held that a Muslim marriage can be regarded as a marriage in law if it is factually monogamous. This became the first step in acknowledging Islamic law in the South African legal sphere. It is important to note that the court in the aforementioned case further held that religious freedom cannot undermine the right to equality. The Ryland v Edros outcome therefore did not fully recognise Muslim marriages, but it did provide a stepping stone for the gradual recognition of Islamic law in the country’s judicial system.

In 2003, in Daniels v Campbell, the court held that the Intestate Succession Act No. 27 of 1987 and the Maintenance of Surviving Spouses Act No. 27 of 1990 should be amended to make provision for the term ‘spouse’, so as to include “a husband or wife married in accordance with Muslim rites”. The South African law further makes provision for a deceased’s estate to be distributed in terms of Shariah Law if it is so stated in the deceased’s will and the will complies with the requirements as set out in the Wills Act No 7 of 1953. Imams can also now complete a marriage-officer course to enable them to officiate legally recognises monogamous Muslim marriages.

The recognition of Islamic law in South African law is not yet what it ought to be, but there have been many changes and attempts to accommodate the country’s citizens who follow the Islamic religion. The shared values between the Constitution and Islamic law point to the prospects for proper recognition as being optimistic.