A South African Constitutional Analysis of the 2:1 Ratio of the Islamic Law of Intestate Succession

ABSTRACT

The 2:1 rule is derived from the Holy Qur’an[1], in which it states that a male inherits double that of his female counterpart. In order to conduct this South African constitutional[2] review, the author will assess the above rule against the freedom of testation as provided for in Section 25[3], as well as the right to equality and dignity in terms of Section 9[4] and 10 of The Constitution of the Republic of South Africa.[5] South African Muslims can only apply certain Islamic Laws within the South African legal context[6], that are in line with the values of the Constitution. It is my understanding that the 2:1 rule of the Islamic Law of Intestate Succession is Constitutional.

INTRODUCTION

Since the enactment of the Constitution, the constitutionality of the Islamic Law of compulsory succession has never been challenged.[7] In order to reach somewhat of a consensus on the Constitutionality of the Islamic Law of Intestate Succession, the constitutionality of the 2:1 ratio of the Islamic Law of Succession will be discussed at length. This general rule of Islamic Law of Intestate Succession can be seen as discriminatory towards females, as it goes against the fundamental right to equality.[8] In order to determine the constitutionality of the rule, it will be assessed against the freedom of testation as provided for in Section 25 of the Constitution.[9] The right to equality as enshrined in the Bill of Rights, and specifically mentioned in Section 9[10] of the Constitution, will also be discussed against the rule.

BACKGROUND

This article discusses the Islamic Law of Succession, specifically the 2:1 ratio thereof in a South African legal context. The aim of the article is to educate the reader on the basics of Succession laws in both the South African, as well as the Islamic legal contexts. To date, there has been no legislation enacted by the South African Parliament to give effect to Islamic Law. Determining the South African constitutionality of the 2:1 rule will attempt to ease the difficulties South African Muslims experience when opting to apply the Islamic Law.

AN OVERVIEW ON THE ISLAMIC LAW OF SUCCESSION, ELABORATING ON THE 2:1 RATIO

The Islamic Law of Succession is derived from the Holy Qur’an[11] and Hadiths.[12] These laws establish the basis for the impartial distribution of assets.[13] These rules of the Compulsory Islamic Succession Law states that, before assets are distributed and the wishes of the testator are carried out, the assets of the testator must first be used to pay off any debts.[14] Once these debts are paid off, the estate is firstly distributed according to the testamentary requirements and then the intestate requirements. The Islamic Law of Compulsory Succession prescribes a formula on how a deceased assets should be distributed[15], in which a testator only has the freedom to dispose 1/3 of his/her net estate as they wish to.[16] This limits a testator’s right to freedom of testation, as mentioned in Section 25 of the Constitution, which states that a testator has the right to dispose of all their assets as they wish to, through a Will.[17] A testator also cannot bequeath anything from this 1/3 of their estate to an intestate beneficiary. For this 1/3 to be distributed according to a testator’s wishes, a valid Islamic will must be executed. The remaining 2/3 of the estate is referred to as the intestate estate,[18] which is distributed according to specified fixed shares, set out in Surah An-Nisa.[19]

The 2:1 rule is derived from the Holy Qur’an[20], in which it states that a male inherits double that of his female counterpart. This includes all male/female counterparts from the bloodline of the deceased.[21] Simply, a son would inherit double the share of a daughter from the intestate inheritance share. One of the reasons sometimes given for this rule by academic scholars is that because men have more financial obligations according to Islamic Law, they should inherit more.

Primarily, due to the 2:1 rule it is claimed that the Islamic Law of Succession discriminates against women. This is true when looked at, at face value. This is because the ratio will be in conflict with many constitutional principles. It is therefore important to examine the 2:1 rule while considering the reasons given by the Islamic Law of Intestate Succession, as well as considering a testator’s freedom of testation when choosing to distribute their estate according to the Islamic Law of Succession.[22] An important factor to note when viewing the 2:1 rule is that this ratio is only a general guideline, and not an absolute principle that is set in stone.[23] It only applies to the intestate inheritance shares, and not any testate shares of a deceased estate. And generally, only applies to siblings/children of the deceased when they inherit together.

AN OVERVIEW OF THE SOUTH AFRICAN LAW OF SUCCESSION

To be able to determine the constitutionality of the Islamic Law of Intestate Succession, it is necessary to understand the fundamentals of the South African Law of Succession, and how it differs. South African Law of Succession allows an individual the freedom of testation, allowing testators to dispose of their assets as they wish. However, the terms of a testator’s will cannot be in conflict with constitutional principles.[24] So in a way, testators also do not have complete freedom of testation in a South African legal system. It might seem as if they have an unfettered freedom, but because their wishes are limited to being constitutional, they do not have complete freedom of testation.

The testate law of succession are those rules that regulate the distribution of a deceased persons estate according to the testator’s wishes as expressed in a will.[25] For the laws of testate succession to be applied, the testator needs to have a valid will. Whereas, the Intestate Law of Succession contains those legal rules that determine how a deceased estate must be distributed when a testator dies intestate, or without instructions on how to distribute his/her estate when they die.[26] Intestate succession also applies when a person dies without leaving a valid will, or when there is an executed will but it becomes wholly or partially invalid due to certain clauses contained in the Will which are either impossible or illegal.[27] All matters regarding Intestate Succession is governed by the Intestate Succession Act.[28] According to the Act, an individual who dies intestate, estate is divided equally among his/her surviving spouse and descendant/s. If the deceased is survived by neither a spouse nor descendants, their parent/s are to inherit their estate equally/fully. However, if none of the mentioned relatives is survived by the deceased, his/her siblings stand to inherit their estate, thereafter, the closest surviving blood relatives of the deceased.[29] Simply, according to the South African Law of Intestate Succession, a deceased estate is divided equally among their descendant/relatives, regardless of whether they are male or female.

THE CONSTITUTIONALITY OF THE 2:1 RULE OF THE ISLAMIC LAW OF INTESTATE SUCCESSION

According to the Islamic Law of Succession, a testator only has the freedom of disposing 1/3 of their net estate according to their wishes. Although the Islamic Law of Succession limits a testator’s freedom of testation, a testator exercises two of their other rights when choosing to distribute their estate according to the Islamic Law of Intestate Succession. It may then be said that such a limitation is reasonable and justifiable.[30] As stated in Section 36 of the Constitution, the freedom of testation can be limited as it is not absolute right, but such a limitation must be reasonable and justifiable in an open and democratic society, based on equality, freedom and human dignity. To determine whether the limitation of a right is reasonable and justifiable, the following factors are considered: what the purpose of limiting the right is, the nature of the right being limited, and the extent of the limitation.[31] Therefore, the limitation of the freedom of testation is reasonable and justifiable, because in doing so they are exercising their right to freedom of testation, as well as the right to practice religion.[32]

Furthermore, when the 2:1 rule of the Islamic Law of Intestate Succession is viewed in a South African legal context, it goes against the fundamental right to equality[33], and can also be seen as affecting a woman’s dignity.[34] It clearly discriminates against women by ‘giving’ men more just because of their gender. However, many at time females inherit the same as, or sometimes even more than her male counterpart. An example of where a female would inherit the same as her male counterpart would be where a deceased leaves behind both parents. In such a situation, both parents of the deceased inherit equally, i.e., a female inherits the same her male counterpart.[35]

Additionally, in the BOE Trust case, the supreme court of appeal stated that while Section 25 guarantees the right to freedom of testation, this right is linked to an individual’s constitutional right to human dignity.[36] A woman’s dignity[37] could also be affected as the rule could be interpreted in a way in which women are seen as inferior to men. However, before Islam existed women, all over the world had no share in inheritance at all.[38]  Hence the 2:1 rule gave women a better and similar standing to men in society.[39]

It is therefore clear that the Islamic Law of Succession cannot be viewed at face value[40] and must be read alongside other provisions to fully determine its constitutionality.  

THE RATIONALE BEHIND THE COMPULSORY 2:1 RATIO OF THE ISLAMIC LAW OF INTESTATE SUCCESSION

When the 2:1 rule of the Islamic Law of Intestate Succession is viewed in a South African legal context at face value, it seems that a woman’s share is only reduced because of her gender. There are many reasons as to why this rule should not and cannot be viewed in this manner. These include a testator exercising their right to freedom of testation when choosing to apply the Islamic Law of Succession when distributing their estate[41]. As well as exercising their right to practice their religion without being discriminated against.[42] Additionally, Muslims are required to follow the Islamic Law[43], but Islam also states that a Muslim individual uses/takes up the legal system of where they live.[44]. So, when a testator chooses to distribute their estate according to the Islamic law of Intestate Succession, a testator is choosing to practice their religion. Section 9(3) of the Constitution prohibits the state from unfairly discriminating against anyone on several grounds, one of these being religion.[45]

According to Islamic Law, a male should provide for his family, whereas a female is provided for.[46] Therefore, Islam does not aim discriminate against males and females in cases of inheritance, but rather allocates shares based on rights and financial responsibilities.[47] Although males inherit more than females, the justification for this according to certain scholars is that men have more financial obligations than women. Simply, because a male is given more than a female it determines the financial responsibilities put on him. It can therefore clearly be seen that Islam does not discriminate against men and women, but rather allocates shares to them based on their (women’s) rights to be provided for and men’s obligation to provide.[48] However, there is no evidence in the primary in the primary sources of Islamic Law indicating that this is the reason for males inheriting more than females.[49] There is also no evidence of a link between the financial obligations of males in Islam and the Islamic Intestate Succession Laws. Though there is an acclaimed justification for this reasoning in the Holy Qu ‘ran.[50] Which clearly states the financial obligations of a household falls on a man and that it is his duty to provide for females/the family, whereas women have no financial obligations.[51]

Furthermore, it is significant to note that the 2:1 rule is merely a general guideline and not an absolute principal “set in stone”.[52]

CONCLUSION

According to the authors findings throughout the paper, it is understood that the 2:1 rule of the Islamic Law of Intestate Succession is Constitutional. Although it limits some constitutional rights, when a testator chooses to distribute their estate according to the Islamic Law of Intestate Succession, a testator chooses to exercise their other constitutional rights, such as the right to practice religion.[53] Such limitations are reasonable and justifiable.[54] Furthermore, the justifications of the 2:1 rule demonstrate why it should be viewed as constitutional. Moreover, it is important to notes that this rule is only a general guideline, and not an absolute principle of the Islamic Law of Intestate Succession.

REFERENCE(S):

Books

Abduroaf, K, ‘Deceased Estates: Islamic Law Mode of Distribution’, 2 ed (2018), Highlands Waqaf Trust Publishers Cape Town.

Heaton J, Roos A, ‘Family and Succession Law in South Africa’, 4ed (2022), Walters Kluwer (Online Version).

Palekar M, Van der Linde A, Woodbodley M, ‘The Law of Succession in South Africa’, 3ed (2017), OUP Southern Africa.

Cases

Bhe and Others v Khayelitsha Magistrate and Other (2004) ZACC 17.

BoE Trust Ltd NO and Another (in their capacities as co-trustees of the Jean Pierre De Villiers Trust 5208/2006) (2012) ZASCA 147.

King N.O. and Others v De Jager and Others (2021) (CCT 315/18) [236].

Constitution

The Constitution of the Republic of South Africa, 1996.

Internet Sources

The Male Primogeniture Rule <https://www.vermeulenlaw.co.za/male-primogeniture-rule/> accessed on 8 Jul 2025.

Journal Articles

Ashraf Booley and Mohamed Hoosain Sungay, ‘Case in point South Africa: A Brief Overview of Whether Islam is Deemed Less Tolerant of Women’s Rights than other Faiths and Cultures?’ (2023) 1 (2) JIHL, 59-74.  

MC Schoeman-Malan, ‘Recent Developments Regarding South African Common Law and Customary Law of Succession’ (2007) 10(1) PELJ, 107 – 139.

Mohamed Hoosain Sungay, ‘Constitutional legitimacy of the Islamic law of Wills in South Africa’ (2022) 18(1) MJTILP, 52–65.

Mohamed Hoosain Sungay, ‘Do Women Face Discrimination under the Islamic Law of Succession? An Examination of the male-preferential 2:1 rule of Inheritance’ (2023) 27(1) LDD, 450-467.

Mohammed Sani Husein, ‘Islamic Law of Succession in relation to Woman’ (2019) 9 (1) IJRS, 37-52.

Muneer Abduroaf, ‘A Comparative Analysis Between the Customary and Islamic Laws of Intestate Succession with Regard to Discrimination: A South African Constitutional Law Case Study’ (2022) 30(2) JS, 152 – 174.

Muneer Abduroaf, ‘A Constitutional Analysis of An Islamic Will Within the South African Context’ (2019) DJLJ, 257 – 266.

Muneer Abduroaf, ‘An Analysis of the Rationale behind the Distribution of Shares in terms of the Islamic Law of Intestate Succession’ (2020) 53 (1) DJLJ, 115-122.

Muneer Abduroaf, ‘Application of the Islamic Law of Succession in South Africa’ (2020) OJ, 396 – 409.

Naeema Gabru, ‘The Applicability of the Islamic Law of Succession in South Africa’ (2005) OJ, 340-356.

Wesahl Domingo, ‘Muslim Personal Law in South Africa: “Until Two Legal Systems Do us part or Meet?” (2011) OJ, 377-391.

Legislation

Intestate Succession Act 1987.

Law of Succession Amendment Act 1992.

Wills Act 1953.

Theses

Fatima Essop, ‘The Intersection between the Islamic Law of Inheritance and the South African Law of Succession’ (unpublished LLD thesis, University of Cape Town, 2022).

Mohamed Hoosain Sungay, ‘Constitutional Legitimacy of the Islamic Law of Compulsory Succession within the South African Legal Context’ (LLM mini-thesis, University of the Western Cape, 2023).

Muneer Abduroaf, ‘The Impact of South African Law on the Islamic Law of Succession’ (unpublished LLD Thesis, University of the Western Cape, 2018).

[1] Al-Qur’an Chapter 4, verse 11: ‘Allah commands you to regard your children’s (inheritance); to the male, a portion equal to that of two females…’

[2] Hereafter referred to as ‘constitutional’.

[3] The Constitution of the Republic of South Africa 1996, s25.

[4] The Constitution of the Republic of South Africa 1996, s9.

[5] Hereafter referred to as ‘Constitution’.

[6] Muneer Abduroaf, ‘Application of the Islamic Law of Succession in South Africa’ (2020) OJ, 396.

[7] Mohamed Hoosain Sungay, ‘Constitutional Legitimacy of the Islamic Law of Compulsory Succession in the South African legal context’ (2023) (LLM mini-thesis University of the Western Cape) xi.

[8] The Constitution of the Republic of South Africa 1996, s9.

[9] The Constitution of the Republic of South Africa 1996, s25.

[10] The Constitution of the Republic of South Africa 1996, s9.

[11] The central religious texts of Islam.

[12] Teachings of the Holy Prophet Muhammed (PBUH).

[13] Mohamed Hoosain Sungay, ‘Constitutional legitimacy of the Islamic wills in South Africa’ (2022) 17(1) MJTILP, 55.

[14]Mohamed Hoosain Sungay, ‘Do Women face Discrimination under the Islamic Law of Succession? An Examination of the Male-preferential 2:1 Rule of Inheritance’ (2023) 27(1) LDD,452.

[15] Mohamed Hoosain Sungay, ‘Constitutional legitimacy of the Islamic wills in South Africa’ (2022) 17(1) MJTILP, 52.

[16] Essop F ‘The Intersection between the Islamic Law of Inheritance and the South African Law of Succession’ (2022) (Unpublished LLD thesis University of Cape Town) 107.

[17] The Constitution of the Republic of South Africa 1996, s25.

[18] Mohamed Hoosain Sungay, ‘Do Women face Discrimination under the Islamic Law of Succession? An Examination of the Male-preferential 2:1 Rule of Inheritance’ (2023) 27(1) LDD, 453.

[19] Al-Qur’an, Chapter 4.

[20] Al-Qur’an Chapter 4, verse 11: ‘Allah commands you to regard your children’s (inheritance); to the male, a portion equal to that of two females…’

[21] Mohamed Hoosain Sungay, ‘Do Women face Discrimination under the Islamic Law of Succession? An Examination of the Male-preferential 2:1 Rule of Inheritance’ (2023) 27(1) LDD, 454.

[22] Mohamed Hoosain Sungay, ‘Do Women face Discrimination under the Islamic Law of Succession? An Examination of the Male-preferential 2:1 Rule of Inheritance’ (2023) 27(1) LDD, 454.

[23] Mohamed Hoosain Sungay, ‘Constitutional Legitimacy of the Islamic Law of Compulsory Succession in the South African legal context’ (2023) (LLM mini-thesis University of the Western Cape) 63.

[24] The Constitution of the Republic of South Africa 1996, s25.

[25] The Law of Succession in South Africa, 3ed (2017) Chapter 3, 64.

[26] The Law of Succession in South Africa, 3ed (2017) Chapter 2, 40.

[27] The Law of Succession in South Africa, 3ed (2017) Chapter 2, 43.

[28] Intestate Succession Act 1987.

[29] Intestate Succession Act 1987.

[30] The Constitution of the Republic of South Africa 1996, s36.

[31] The Constitution of the Republic of South Africa 1996, s36.

[32] The Constitution of the Republic of South Africa 1996, s15.

[33] The Constitution of the Republic of South Africa 1996, s9.

[34] Mohamed Hoosain Sungay, ‘Do Women face Discrimination under the Islamic Law of Succession? An Examination of the Male-preferential 2:1 Rule of Inheritance’ (2023) 27(1) LDD, 454.

[35] Mohamed Hoosain Sungay, ‘Do Women face Discrimination under the Islamic Law of Succession? An Examination of the Male-preferential 2:1 Rule of Inheritance’ (2023) 27(1) LDD,455.

[36] BoE Trust Ltd NO and Another.

[37] The Constitution of the Republic of South Africa 1996, s10.

[38] Mohammed Sani Husein, ‘Islamic Law of Succession in relation to Woman’ (2019) 9 (1) IJRS, 43.

[39] Booley A, Mohamed Hoosain Sungay, ‘Case in point South Africa: A Brief Overview of Whether Islam is Deemed Less Tolerant of Women’s Rights than other Faiths and Cultures? –’ (2023) 1 (2) JIHL, (Journal of Islamic Studies) 59-74.  

[40] Mohamed Hoosain Sungay, ‘Do Women face Discrimination under the Islamic Law of Succession? An Examination of the Male-preferential 2:1 Rule of Inheritance’ (2023) 27(1) LDD,454.

[41] Mohamed Hoosain Sungay, ‘Constitutional legitimacy of the Islamic wills in South Africa’ (2022) 17(1) MJTILP, 52-65.

[42] The Constitution of the Republic of South Africa 1996, s15.

[43] Muneer Abduroaf, ‘A Comparative Analysis Between the Customary and Islamic Laws of Intestate Succession with Regard to Discrimination: A South African Constitutional Law Case Study’ (2022) 30(2) JS, 151.

[44] Al-Qur’an Chapter, Verse 59: ‘O you who believe! Obey Allah and obey the Messenger and those in authority among you…’.

[45] The Constitution of the Republic of South Africa 1996, s9.

[46] Al-Qur’an Chapter 4, Verse 34.

[47] Mohammed Sani Husein, ‘Islamic Law of Succession in relation to Woman’ (2019) 9 (1) IJRS, 37.

[48] Mohammed Sani Husein, ‘Islamic Law of Succession in relation to Woman’ (2019) 9 (1) IJRS, 37.

[49] Muneer Abduroaf, ‘An Analysis of the Rationale behind the Distribution of Shares in terms of the Islamic Law of Intestate Succession’ (2020) 53 (1) DJJ, 119.

[50] Al-Qur’an Chapter 4, Verse 34: ‘Men are the protectors and caretakers of women, as men have been provisioned by Allah over women and tasked with supporting them from their means…’

[51] Mohamed Hoosain Sungay & Booley A ‘Case in point South Africa: A brief overview of whether Islam is deemed less tolerant of women’s rights than other faiths and cultures?’ (2023) 1(2) JIHL, 64.

[52] Mohamed Hoosain Sungay, ‘Constitutional Legitimacy of the Islamic Law of Compulsory Succession in the South African legal context’ (2023) (LLM mini-thesis University of the Western Cape) 63.

[53] The Constitution of the Republic of South Africa 1996, s31.

[54] The Constitution of the Republic of South Africa 1996, s36.