An Analysis of Renunciation in Terms of s 2(C)(1) of the Wills Act 7 of 1953 in Light of the Moosa NO and Others v Harnaker and Others Judgment

Abstract

Muslims have been living in South Africa for over 300 years. These persons are required in terms of their religion to fol- low Islamic law. There has (to date) been no legislation enacted by the South African parliament that gives effect to Islamic law. South African Muslims are able to make use of existing South African law provisions in order to apply certain Islam- ic laws within the South African context. An example of this would be where a testator or testatrix makes use of the South African common law right to freedom of testation in order to ensure that his or her estate is distributed in terms of the Islamic law of succession upon his or her demise (Islamic will). This would ensure that his or her beneficiaries would inherit from his or her estate in terms of the Islamic law of succession. A potential problem could arise in the event where a beneficiary who inherits in terms of an Islamic will, renounces a benefit. Should the Islamic law or South African law consequences of renunciation apply? This paper critically analyses a recent South African High Court judgment where the issue of renunciation of a benefit in terms of an Islamic will was looked at.