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The Case of the Recognition of Muslim Personal Law in South Africa: Colonialism, Apartheid and Constitutional Democracy

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The Sociology of Shari’a: Case Studies from around the World

Part of the book series: Boundaries of Religious Freedom: Regulating Religion in Diverse Societies ((BOREFRRERE,volume 1))

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Abstract

South Africa provides an ideal example of legal pluralism where there is a constitutional commitment by the state to provide recognition to both customary and religious law. The mosaic of South African history is richly interwoven with Islam since the arrival of Muslims coming from all parts of the world more than 360 years ago. The history of Muslims in South Africa is inextricably linked to the presence of colonialism, apartheid and constitutional democracy. Muslim personal law in South Africa is on the verge of recognition and implementation. The Muslim community is divided on the issue of whether they should recognise the state’s having jurisdiction over Muslim personal law through the enactment of a Muslim Marriages Act. This chapter critically discusses the opportunities and challenges South African Muslims have faced, and are facing, with the recognition of Muslim personal law.

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Notes

  1. 1.

    These political prisoners have had a profound impact on Islam in South Africa. They are often regarded as the forefathers of Muslims in South Africa because they came with a wealth of Islamic knowledge. For example, Tuan Guru, a prisoner who had fought against the Dutch in Malaysia, was imprisoned on Robben Island from 1781–1793, during which time the great scholar wrote the entire Qur’an from memory. He also wrote many books on Islamic jurisprudence, which are still used as reference books in South Africa.

  2. 2.

    For a more detailed analysis see Hallaq (<CitationRef CitationID="CR9” >2009</Citation Ref>), and Sardar (<CitationRef CitationID="CR22” >2011</Citation Ref>).

  3. 3.

    This figure is according to South Africa’s 2001 Census. The total population in South Africa in 2001 was 44.9 million. The census conducted in 2011 did not include any questions on religion, due to its being a low priority.

  4. 4.

    See the following statutes: Children’s Act 38 of <CitationRef CitationID="CR36” >2005</Citation Ref>; Births and Deaths Registration Act 51 of <CitationRef CitationID="CR32” >1992</Citation Ref>; Domestic Violence Act 116 of <CitationRef CitationID="CR34” >1998</Citation Ref>; Income Tax Act 58 of <CitationRef CitationID="CR29” >1962</Citation Ref>; Pensions Funds Act 24 of <CitationRef CitationID="CR28” >1956</Citation Ref>; and Insolvency Act 24 of <CitationRef CitationID="CR27” >1936</Citation Ref>.

  5. 5.

    Section 1 of the Intestate Succession Act 81 of <CitationRef CitationID="CR31” >1987</Citation Ref> provides for inheritance by a surviving spouse, as does the Maintenance of Surviving Spouses Act, which provides that a surviving spouse may have a claim against the deceased estate.

  6. 6.

    ‘Kuffr’ means all things unacceptable and offensive to God.

  7. 7.

    The members of the UUCSA are the following: The Muslim Judicial Council (MJC); The Sunni ‘Ulama Council (SUC); The Jamiatul ‘Ulama KZN (JUKZN); The Jamiatul ‘Ulama (JU); The Sunni ‘Ulama Natal (SJUN); Eastern Cape Islamic Congress (ECIC) and the Council of ‘Ulama Eastern Cape (CUEC).

  8. 8.

    See Prince v President of the Law Society of the Cape of Good Hope and Others <CitationRef CitationID="CR46” >2002</Citation Ref> (2) SA 794 (CC).

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Authors and Affiliations

  1. University of the Witwatersrand, Johannesburg, South Africa

    Wesahl Domingo

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  1. Wesahl Domingo
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Correspondence to Wesahl Domingo .

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Editors and Affiliations

  1. Religion and Society Research Centre, University of Western Sydney, Sydney, New South Wales, Australia

    Adam Possamai

  2. Grant Sawyer Center for Justice Studies, University of Nevada, Reno, Nevada, USA

    James T Richardson

  3. City University of New York The Graduate Center, New York, New York, USA

    Bryan S. Turner

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Domingo, W. (2015). The Case of the Recognition of Muslim Personal Law in South Africa: Colonialism, Apartheid and Constitutional Democracy. In: Possamai, A., Richardson, J., Turner, B. (eds) The Sociology of Shari’a: Case Studies from around the World. Boundaries of Religious Freedom: Regulating Religion in Diverse Societies, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-09605-6_11

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