MOSENEKE V THE MASTER 2001 2 SA 18 (CC): Racial discrimination laws and the interests of justice* *

No Abstract

Some comments on the current (and future) status of Muslim personal law in South Africa

The state law of South Africa consists of the common law and the customary law. However, in reality there exist various cultural and religious communities who lead their private lives outside of state law. For example, the Muslim community in South Africa is a close-knit community which lives according to their own customs and usages. Muslims are subject to informal religious tribunals whose decisions and orders are neither recognised nor reviewable by the South African courts. The non-recognition of certain aspects of Muslim personal law causes unnecessary hardships, especially for women. A Muslim woman is often in a "catch two" situation. For example, on the one hand her attempts to divorce her husband in terms of Muslim law may be foiled by the relevant religious tribunaland, on the other hand, the South African courts may not provide the necessary relief, because they might not recognise the validity of her Muslim marriage. Increasingly, South African courts are faced with complex issues regarding the Muslim community. The last few years there has been a definite change in the courts' attitude with regard to the recognition of certain aspects of Muslim personal law. Contrary to pre-1994 court cases, the recent court cases attempt to develop the common law to give recognition to certain aspects of Muslim personal law. This article attempts to give an overview of the recent case law that dealt with issues regarding the recognition of aspects of Muslim personal law. Another issue, which eventuates from the current situation, is whether the South African legal order should continue to have a dualistic legal order or whether weshould opt for a unified legal order or even a pluralistic legal order. In order to address this issue, some comments on the current status of Muslim personal law will be made and, finally, in order to contribute to the debate regarding the recognition of Muslim personal law, optional models for the recognition of Muslim personal law will briefly be evaluated

Muslim personal law and the meaning of "law" in the South African and Indian constitutions

The Muslim population of South Africa follows a practice which may be referred to as Muslim personal law. Although section 15 of the Constitution of the Republic of South Africa 108 of 1996 recognises religious freedom and makes provision for the future recognition of other personal law systems, Muslim personal law is, at this stage, not formally recognised in terms of South African law. Since Muslim personal law receives no constitutional recognition the question may be asked whether the 1996 Constitution, and in particular the Bill of Rights as contained in chapter 2 of the 1996 Constitution, is applicable to "non-recognised" Muslim personal law. The answer to this question depends to a large extent on the meaning of "law" as contained in the 1996 Constitution. When the viewpoint of academic writers and the courts are evaluated it seems as if the meaning of law in South Africa is restricted to the common law, customary law and legislation. If such a viewpoint is to be followed, Muslim personal law is excluded from the scrutiny of the Bill of Rights. It is, however, inconceivable that there might be certain areas of "law" that are not subject to the scrutiny of the Bill of Rights. In this note it will be argued that Muslim personal law should be regarded as law in terms of the 1996 Constitution, or in the alternative, that Muslim personal law (or at least Muslim marriages) should be recognised in terms of section 15 of the 1996 Constitution. Due to the historical resemblance between South Africa and India the meaning of "law" as contained in the 1996 Constitution will be compared with the meaning of "law" as contained in the Constitution of India. Although the Constitution of India indirectly gives recognition to various personal laws in India, these personal laws are not subject to the provisions of the Constitution of India. Therefore, it would be argued that one should approach the Constitution of India with caution when its provisions are compared to those of the 1996 Constitution of South Africa

Islamic marriages in South Africa: Quo vadimus?

Due to their potentially polygamous nature, Islamic marriages are not recognised in terms of South African law. The consequences of this non-recognition have been particularly unfair to Muslim women. Until 2000 a Muslim woman had no claim for loss of support if her husband was unlawfully killed. Even today she cannot claim maintenance from her husband after a divorce; she is not an intestate beneficiary after the death of her husband; can be compelled to give evidence against her husband in criminal proceedings and can not claim financial support during the course of her marriage. Since early times there have been calls for the recognition of Islamic marriages. The 1996 Constitution of South Africa protects, among other rights, cultural and religious rights and makes provision for the recognition of cultural and religious marriages by means of legislation. This article gives a brief historical overview regarding the position of Islamic marriages in South Africa. Thereafter the current position of Islamic marriages will be discussed, and finally a few comments regarding the future of Islamic marriages will be given

H.P. Wolmarans en die kultuurstrewe van die Afrikaner

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Die sorgsaamheidsplig van trustees in die uitvoer van hulle beleggingsbevoegdhede: Kan ons by die Engelse trustreg leer?

It is settled law in South Africa that the trustee of a trust is unequivocally charged with the duty to invest the assets of the trust. However, in South Africa in the past, this duty has been qualified, with avoidance of risk seen as the trustee’s number one priority when investing. The legislature and the judiciary mainly focused on providing safeguards for beneficiaries, therefore trustees were to avoid all risk to the capital of the trust. Despite economic realities, such as the devaluation of currencies and progressive inflation, the courts have continued to favour investment in interest-bearing securities. Most of the time trustees erred on the side of caution, following the judiciary’s lead. Unfortunately, as it will be pointed out, this means that trustees are blind to their primary task, which is and always has been, to do the best for the beneficiaries.Trustees will have to expose the assets to at least some risk in order to outperform inflation, as the traditional investments are no longer sufficient. Change occured in English trust law with the introduction of the Trustee Act 2000. This Act removes the constraints that previous legislation imposed on trustees and imposes positive obligations on trustees which reflect the reality of modern investment practices. In this article, attention will be given to the legal position in South Africa regarding a trustee’s duty of care pertaining to trust investments. Subsequently, the legal position of a trustee in terms of English law will be discussed in order to advance recommendations for future developement in South Africa