Legal Pluralism: Inheritance According to Sharia
Legal Pluralism: Inheritance According to Sharia
Legal pluralism is the existence of multiple legal systems within one population and/or geographical area. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more traditional legal systems. –Wikipedia
There are many customs to which certain groups of the South African population base their lives on, however although these customs are exercised freely, these customs are still subject to the South African Constitution and the Governing laws of South Africa. The topic of discussion today is the Muslim based custom “Sharia” which translated means “the clear, well-trodden path to water” and Sharia acts as a code for living that all Muslims should adhere to.
I have drafted quite a few Will where the Will is entirely based on the principle of Sharia, where the directions in the Will is so simple, by just stating that distribution of the estate is to be conducted in terms of Sharia and that a qualified person is to be appointed to ensure that a distribution certificate is issued, according to Islamic laws. The Muslim Traditional Council may issue such certificates.The Qur’an has 11 verses concerning Succession.
The Surah first in chapter 2 prescribes that when death approaches you and you leave any property that you make a bequest to parents and you’re Next-of-Kin according to Equity, which is seen as a God-fearing duty. Furthermore in Chapter 4 it states that from what is left by the parents and those nearest related, there is a share for woman and a share for men, whether the property be small or large and that Allah commands you in respect of your children’s inheritance as follows;
- To a male, a share is given equal to that of two females, and if there are only daughters, two or more that their share is two thirds of the inheritance and if only one daughter then her share is one half.
- For parent’s a sixth share of the inheritance to each if the deceased left children, and if there were no children but only parents, then the mother received one third share and the father two thirds.
- If the deceased left brothers or sisters, the mother will receive one sixth.
- In all instances, distribution takes place after payments of legacies (which is a specific bequest to a specific person, which only one third is allowed and that person or legacy may not be one of the residue heirs, which is the principle of Sunnah or ahadith as a tradition or Saying by the prophet Muhammad)
The Muslim laws are per se, not recognized in South African Law, however Section 15 of the Bill of the Constitution of South Africa 1996, states that this section does NOT prohibit systems of persons or Family law, followed by such person, is accordance with specific religions, and recognition must be given to these laws, for as long as they are in accord with the principles of the Constitution of South Africa, but the question is how will all of these law be interpreted. The answer is found in Section 39 of the Constitution which states that when the Bill of Rights are interpreted, the court, tribunal or council must take in to account the principles of a society based on human dignity, the right to freedom and Equality in determining the validity of these principles in order to promote the common law.
The matter can be quite similar to that of the Intestate Act, which guides Estates with no Will, and in these circumstances a Testator/Testatrix with freedom of testation is still limited to what is in accord with the Constitution. In the same instance it is a matter of principle that a Muslim chooses to administer his estate in terms of Shariah, but according to this law, still limits such a person to certain principles.
In conclusion, just as important as it is for any person to have his/her Will drafted and signed to avoid an estate being administered by the Intestate Act,so can a person Driven by Muslim religion, also still have his assets distributed if a Will is executed, thus once again emphasizing the importance of a Will, no matter what your culture is.
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