Prospects for Muslim Law in South Africa: A History and Recent Developments

Abstract

Political change has had a noticeable impact on the South African Judicial systern. An index of this change was the major turnabout in the attitudes of the courts towards Islamnic law which had been stigmatized for centuries in this country. Following the landmark decision in 1996 by the Cape High Court in Ryland v. Edros, (see case note in Part TV on p. 515) the prospects for the further recognition of Islamic law have substantially improved. Previously the courts' approach was shaped by Seedat's Executors v. The Master (Natal) 1917 AD and Ismail v. Ismail 1983 (1) SA 1006 (A) in which it was ruled that marriages valid accordig to Islamic law, and actually monogamous must be regarded as void on the grounds of public policy.I But public in these instances in the past was necessatilv cstate policy which was wedded to Christian notions of martiage and had little regard to the diversity of cultures and values in the country. South Africa's new Bill of Rights now explicitly recognizes cultural and religious plurality, with an emphasis on equality which prevents discrimination on the grounds of culture, religion, race or minority status. It is in this context, notwithstanding some of the practical difficulties, that aspects of Muslim family law may be incorporated into the general legal system.