forum

UNDERSTANDING
THE ISLAMIC LEGAL SYSTEM
FOR SOUTH AFRICAN LEGAL
PRACTITIONERS
by Fatima Essop

M
uslims were brought to the Cape as slaves and R29.3 billion according to the Association for Savings and
political prisoners in the 17th century by the Dutch Investments South Africa. Any provider of Islamic financial
East India Company and are today one of the products requires the oversight of a shariah board, which in turn
religious minority communities in South Africa. They have been applies Islamic legal principles in its decision making.
practising their Muslim family laws of marriage, divorce and In the aforementioned examples Islamic law principles
inheritance in the private sphere for over 300 years, despite are being applied in the South African legal context and legal
the fact that the State did not recognise or legislate these laws. practitioners might, therefore, find it useful to understand how
Muslim communities have formed ulama bodies, or Muslim the Islamic legal system actually operates. Often time Muslims’,
judicial bodies, which are theological bodies that perform and non-Muslims’, understanding of Islamic law are reduced
various functions like: (i) running shariah courts that adjudicate to notions that the legal system is a fixed, sacrosanct, and
Islamic divorces; (ii) drafting Islamic wills and distribution immutable system, because it derives directly from the Quran,
certificates, and (iii) overseeing various community matters, which is considered the divine word of God. In this article, I
including halal food certification, which is the process of illustrate that the Islamic legal system is far more dynamic and
determining whether meat or food in various food outlets are nuanced. I highlight some of the similarities and differences
permissible for Muslims to eat.1 between the two legal systems.
In addition to family laws, Islamic law obliges Muslims to South African law has been compared to the great baobab
pay compulsory charitable taxes (zakah) on their wealth and tree, where the roots indicate the foundations from which the
highly encourages voluntary altruism (sadaqah). Hence, there are legal system originates, namely: Roman-Dutch law, English
a proliferation of Islamic charitable organisations within South common law, and African customary law. The trunk symbolises
Africa, to whom Muslims contribute tax exempted donations the sources of the law, including those structures that support
annually. In March 2022 the South African National Zakah Fund the legal system namely: legislation, of which the Constitution
alone recorded over R122 million in compulsory charitable taxes is supreme, judicial precedents, legal presumptions etc. The
and over R35 million in voluntary charitable donations for 2022.2 branches reflect the different areas of law, including substantive
There is furthermore a rapidly growing Islamic finance, laws versus adjectival laws and public laws versus private laws.4
banking and asset management sector in South Africa. Our legal system has also been described as having a deep
According to the Banking Association of South Africa the value legal pluralism approach to its multiple systems of laws, with
of Islamic financial services products reached R37 billion and the common and customary laws embodying ‘official’ legal
advances amounted to R14.6 billion in the year ending in June pluralism, whilst the ‘unofficial’ legal systems (e.g. Hindu law,
2020.3 As of December 2022, shariah unit trust assets totalled Jewish law and Muslim law) embody ‘deep’ legal pluralism.5

60 Advocate August 2023

 Understanding the Islamic legal system for South African legal practitioners forum

I have taken poetic licence and compared the Islamic legal

system to an olive tree below, where the two main roots depict
Tree of Islamic Law
Fatima Essop
the primary sources of Islamic law, namely the Quran and
the Sunnah. The Quran is considered a divinely inspired text
revealed to the prophet Muhammad (Peace Be Upon Him or
“PBUH”) over a period of 23 years. It consists of approximately
114 chapters and approximately 6 342 verses, but only a limited
number of these verses deal with substantive legal rulings.
Many of the legal rulings relate to acts of worship like prayer,
fasting or pilgrimage. Others pertain to human transactions and
interactions, like family law, contractual law, or criminal law. The
latter category only constitutes about two per cent of all Quranic
verses.6 The Quran is not a legislative text per se.
The Sunnah are the words and actions (explicit and implicit)
of Muhammad (PBUH). The Sunnah clarifies or elaborates
upon whatever legal principles are contained in the Quran. The
Sunnah has been recorded and transmitted through Hadith,
which are reports that describe the words, actions or habits
of Muhammad (PBUH). These reports were compiled over a
century after his death and were completed over a period of
more than three hundred years.7 There are various legal sciences
dedicated to studying, interpreting and understanding both the
Quran and the Sunnah and these sciences are represented by the
sub-roots of the tree.
The tree trunk symbolises the secondary sources, legal tools
and methodologies employed by jurists to derive substantive
legal rulings from the primary sources. This legal science
is referred to as usul al-fiqh or principles of jurisprudence.
Jurists through the ages utilised the interpretive tool of are the Hanafis, Malikis, Shafi’is and Hanbalis, with each school
ijtihad (legal reasoning/interpretation) to extract rulings from deriving its name from its founder. The majority of South
the primary and secondary sources. They utilised ijtihad to African Muslims, adhere to the Shafi’i or Hanafi schools. The
decipher the intention of the legislator (God) and make His four legal schools differed according to their interpretations of
will apparent to humans. Hallaq notes that without ‘[t]he the primary texts, which were influenced by their prevailing
entire system of legal hermeneutics developed by jurists, the customs and socio-political context. Some scholars adopted
revealed texts would remain empty of legal significance, for literal interpretations of the primary texts, whilst others adopted
it was this hermeneutic that brought out their legal import’.8 a more purposive approach, taking the maqasid al shariah (the
As part of their hermeneutical efforts, jurists utilised various objectives of the law) into account. Each school developed
legal methodologies like, consensus, analogy, custom and its own sophisticated legal principles and hermeneutical
considerations of public interest to derive substantive rulings methodologies when it engaged with the primary texts and
from the primary sources of law. derived legal rulings on different matters. The founders of each
The branches of the olive tree depict the different areas of school presented their legal opinions as non-binding opinions
substantive legal rulings, or positive laws, referred to as fiqh or and did not expect their opinions to be followed blindly.
Islamic jurisprudence. The term, ‘jurisprudence’, in this context Sunni Muslims accept all four schools as equally valid
does not have the same meaning as Western legal theory and interpretations of the primary sources but will generally
philosophy but refers instead to the body of substantive Islamic adhere to the legal rulings of one of the four legal schools
law ruling. Fiqh is generally divided into the fiqh of worship according to the doctrine of taqlid. Taqlid is the process of a
and fiqh of transactions/relationships, as depicted by two of the layperson following the opinion of a Muslim jurist or one of
main branches. I have included a third main branch and labelled the Islamic schools in matters of fiqh. Hence, a Hanafi follows
it as the fiqh of procedure, which depicts laws pertaining to the opinions of the Hanafi school, whilst a Shafi’i will follow
evidence, alternative dispute resolution and legal maxims. There the Shafi’i school and so forth. It is based on the principle that
are additional substantive areas of law that would fall under the layperson places his or her full trust in the rulings of the
fiqh of transactions/relationships, like delict or laws of war, but jurists in a particular school of thought, knowing that they have
I have not included all areas of substantive law owing to space utilised their skills and expertise to exercise ijtihad and to derive
constraints. valid legal rulings from the primary and secondary sources.
Important to note is that there is not one uniform code of According to Nyazee, ‘[t]he doctrine of precedent and stare
law in each area of fiqh, which is applicable to all Muslims. Fiqh decisis are nothing more than institutionalized forms of taqlid.
is the product of human interpretation and understanding of When the lower courts follow the opinions of higher courts,
the primary sources by jurists, who developed different schools they are undertaking taqlid’.9 Whilst the South African common
of legal thought (madhahib). The four main Sunni legal schools law system is based on a system of binding judicial precedent,

Advocate August 2023 61

forum Understanding the Islamic legal system for South African legal practitioners

the Islamic law system places great emphasis on the writings of constitutional rights of women and children in particular, and
jurists and relies heavily on the four major schools of law. obliged the president and Parliament to pass new legislation
One of the outstanding features of the Islamic legal system within 24 months in order to ensure the recognition of Muslim
is the plurality of legal opinions that exist in different areas of marriages, and to regulate the consequences arising from
substantive law. Ikhtilaf al-fuqaha (the disagreements of jurists) such recognition. It is hoped, that Parliament will recognise
is an established Islamic law doctrine that offers multiple the flexibility of the Islamic legal system as described above
interpretations of the primary sources of law.10 Just as the and will consider various interpretations, including more
religion of Islam is not monolithic in nature, neither is its legal gender sensitive interpretations of the primary sources as well
system. It is this plurality of opinions, which allows for legal as considerations of public interest, when drafting the said
change and flexibility in the application of the law. This debunks legislation. A
the myth that Islamic law is an immutable sacrosanct system of
law that is not subject to change or adaptation. Fatima Essop is an Advocate of the High Court of South Africa
This explains why: (i) in the case of Rylands v Edros,11 the one with a PhD in law from UCT. She is currently a Visiting Fellow at
Islamic law expert testified that the matrimonial property regime Harvard Law School in the Program on Law and Society in the
in a Muslim marriage could be in community of property, whilst Muslim World.
the other held that all Muslim marriages are automatically out
of community of property; (ii) in Faro v Bingham,12 the applicant
held she was not divorced from her husband at the time of Notes
1. F Essop ‘Problems of and Possibilities for Islamic Divorce in South Africa’ in
his death and was therefore entitled to inherit from his estate, E Stiles and A Yakin (eds) Islamic Divorce in the Twenty-First Century – A Global
whilst the relevant ulama body held she was divorced and was Perspective (2022) 65
therefore not entitled to inherit from her deceased husband’s 2. https://www.sanzaf.org.za/about-us/audited-annual-financial-statement/
audited-annual-financial-statement-2022/viewdocument/74.html
estate; (iii) the sharia board of one Islamic investment fund 3. https://www.iol.co.za/personal-finance/my-money/banking/islamic-banking-
might rule a share to be shariah compliant and acceptable to continues-to-grow-in-south-africa
invest in, whilst another board might decide that it is not, and 4. Barrat et al Introduction to the South African Law-Fresh perspectives (2019) 2.
5. Rautenbach ‘Deep legal pluralism in South Africa: Judicial accommodation
(iv) some Muslim employees take their Islamic holiday (Eid) of non-state law’ (2010) 42 The Journal of Legal Pluralism and Unofficial Law
on one day, whilst others will take it on another day, as some 143 at 145
scholars determine the dates of the Islamic lunar calendar on 6. Coulson A History of Islamic law (1964) 12
7. Barlas Believing Women in Islam – Unreading Patriarchal Interpretations of the
the sighting of the moon, whilst others base it on astronomical - (2002) 42
Qur’an
calculations. 8. Hallaq ‘Muslim rage and Islamic law’ (2002) 54(6) Hastings Law Journal 1705
These examples are indicative of how the application at 1709
9. Nyazee Islamic Jurisprudence (Usul - al-Fiqh) (2000) 24
of Islamic law can render very different outcomes and this 10. Masud ‘Ikhtilaf al-Fuqaha: Diversity in Fiqh as a Social Construct’ in Anwar
should therefore be borne in mind when drafting legislation on (ed) Wanted – Equality and Justice in the Muslim Family (2009) 65
Muslim marriages and divorce. In the recent case of Women’s 11. 1997 (1) BCLR 77 (C)
12. [2013] ZAWCHC 159
Legal Centre Trust v President of the RSA13 the court held that 13. [2022] ZACC 23
the non-recognition of Muslim marriages is a violation of the

“ONE OF THE OUTSTANDING

FEATURES OF THE ISLAMIC
LEGAL SYSTEM IS THE
PLURALITY OF LEGAL
OPINIONS THAT EXIST
IN DIFFERENT AREAS OF
SUBSTANTIVE LAW.”

62 Advocate August 2023