Authored By: Aqeelah Laloo
University of the Western Cape
ABSTRACT
The Islamic Law of Succession is derived from the Holy Qur’an and Hadiths. This Compulsory Succession Law prescribes a formula on how a deceased estate should be distributed. From this, comes the 2:1 rule, which states that men inherit twice as much as women. The source of why the Islamic Law of Intestate Succession is viewed as unfair. Sections 9 and 10 of The Constitution of the Republic of South Africa[1] will be assessed against this rule to prove otherwise. After viewing the Islamic Law of Intestate Succession in a South African legal context, as well assessing the justifications thereof, the author defers that it is not unfair towards women.
INTRODUCTION
The Islamic Law of Intestate Succession is generally viewed as being unfair towards women. This is because of the 2:1 rule of the Islamic Law of Intestate Succession. In which it states that a man inherits twice as much as his female counterpart.[2] To determine whether this view is correct not, sections of the Constitution which suggest that the rule is unfair towards women will be proven to otherwise. Subsequently averring why this succession law cannot be viewed at face value. Furthermore, the justifications of this intestate succession rule will also be discussed.
A BRIEF OVERVIEW OF THE SOUTH AFRICAN LAW OF SUCCESSION
To be able to determine whether the Islamic Law of Succession is unfair towards women in a South African legal context, it is important to understand the fundamentals of the South African Law of Succession. This will be done to assist the reader in distinguishing the differences between how the legal systems views succession issues. Which is turn will establish why the Islamic Law of Succession could be viewed as unfair towards women in a South African legal context.
The Intestate Succession Act[3] contains those legal rules which regulate how a deceased estate must be distributed when a testator dies intestate.[4] The laws of intestate succession also apply when a person dies without leaving a valid will, as well as when there is an executed will but it becomes invalid due to clauses therein which are either impossible or illegal.[5] According to the Act, an individual who dies intestate, estate must be divided equally among his/her surviving spouse and descendant/s. If the deceased is survived by neither a spouse nor descendants, their parents are to inherit their estate equally. However, if none of the mentioned relatives is survived by the deceased, their siblings are to inherit their estate. Thereafter, the closest surviving blood relatives of the deceased.[6] Simply, a deceased estate is divided equally among their descendant/relatives, regardless of whether they are male or female.
THE ISLAMIC LAW OF INTESTATE SUCCESSION
The Islamic Law of Succession comes from the Holy Qur’an[7] and Hadiths.[8] This Compulsory Succession Law prescribes a formula on how a deceased estate should be distributed[9], which states that a testator only has the freedom to dispose 1/3 of their estate as they wish to.[10] However, a testator also cannot bequeath anything from this 1/3 to a compulsory intestate beneficiary. Subsequently, the remaining 2/3 of the estate is referred to as the intestate estate, since it distributed according to the Islamic Law of Succession.[11]
The intestate estate is distributed according to specified fixed shares, which is set out in Surah An-Nisa. Wherein, it states that a male inherits double that of his female counterpart.[12] This is known as the 2:1 rule. Due to this rule, the Islamic Law of Intestate Succession is often accused of being unfair towards women. This appears to be true, when looked at, at face value, because this ratio is in conflict with many constitutional principles. Such as, the fundamental right to equality[13]. Additionally, it can also be seen as affecting a woman’s dignity[14], as the rule could be interpreted in a way in which women are seen as inferior to men.
THE JUSTIFICATION FOR THE ISLAMIC LAW OF INTESTATE SUCCESSION
At face value, the Islamic Law of Intestate Succession is clearly unfair towards women. This is because it seems as if men are “given” more simply because of their gender. However in many instances, a woman inherits the same as, or even more than her male counterpart. An example of this is when a deceased predeceases both their parents. Wherein both parents, the mother and her male counterpart, the father inherit equally.[15] When assuming that the Islamic Law of Intestate Succession views women as inferior to men, hence diminishing their intestate inheritance share, and with that their dignity; it is important to note that before Islam women had no share in inheritance at all.[16] The 2:1 rule at least began allowing women to inherent.
As mentioned in the Holy Qu’ran “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…”.[17] Simply, it is a man’s duty to provide for women, whereas women do not have any financial obligations.[18] Hence the rules of the Islamic Law of Intestate Succession allocate more of the intestate inheritance shares to men, based on their obligation to provide. It can therefore clearly be seen that the Islamic Law of Intestate Succession is not unfair towards women, but rather allocates less intestate inheritance shares to them because they have no financial responsibilities. Whereas men require the extra shares because they have an obligation to provide for women/their families.
CONCLUSION
Conferring to the findings throughout the article, it can be concluded that the Islamic Law of Intestate Succession is not unfair towards women, according to the South African Constitution. The reasons given for the intestate inheritance rules rather suggest that men are unfairly treated. Since they are obligated to provide for women, whereas women are provided for. Moreover, the rule that often leads to accusations of the Islamic Law of Intestate Succession of being unfair towards women, is merely a general guideline and not an absolute principal. [19]
REFERENCE(S):
Books
Palekar M, Van der Linde A, Woodbodley M, ‘The Law of Succession in South Africa’, 3ed (2017), OUP Southern Africa.
Constitution
The Constitution of the Republic of South Africa, 1996.
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.
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.
Legislation
Intestate Succession Act 1987.
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).
Unpublished Article
Aqeelah Laloo, ‘A South African Constitutional Analysis of the 2:1 Ratio of the Islamic Law of Intestate Succession’.
[1] Hereafter referred to as ‘Constitution’.
[2] 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…’
[3] Intestate Succession Act 1987.
[4] The Law of Succession in South Africa, 3ed (2017) Chapter 2, 40.
[5] The Law of Succession in South Africa, 3ed (2017) Chapter 2, 43.
[6] Intestate Succession Act 1987, s1(1)(e)(f).
[7] The central religious texts of Islam.
[8] Teachings of the Holy Prophet Muhammed (PBUH).
[9] Mohamed Hoosain Sungay, ‘Constitutional legitimacy of the Islamic wills in South Africa’ (2022) 17(1) MJTILP, 52.
[10] Fatima Essop ‘The Intersection between the Islamic Law of Inheritance and the South African Law of Succession’ (2022) (Unpublished LLD thesis University of Cape Town) 107.
[11] 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.
[12] 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…’
[13] The Constitution of the Republic of South Africa 1996, s9.
[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, 454.
[15] 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.
[16] Mohammed Sani Husein, ‘Islamic Law of Succession in relation to Woman’ (2019) 9 (1) IJRS, 43.
[17] Al-Qur’an Chapter 4, Verse 34.
[18] Mohamed Hoosain Sungay & Ashraf Booley ‘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.
[19] 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.
