- Senior Professor of Law
University of the Western Cape
Faculty of Law, Department of Private Law, Private Bag X17, Bellville, 7535, Western Cape, South Africa
Physical address: Robert Sobukwe Rd, Bellville
Website link:
https://www.uwc.ac.za/study/all-areas-of-study/departments/department-of-private-law/people - +27 82 202 3305
Najma Moosa
University of the Western Cape, Private Law, Faculty Member
- SPECIALIST IN MUSLIM PERSONAL LAW (MPL) OR MUSLIM FAMILY LAW. Najma Moosa, Senior Professor in the Faculty of Law at... moreSPECIALIST IN MUSLIM PERSONAL LAW (MPL) OR MUSLIM FAMILY LAW.
Najma Moosa, Senior Professor in the Faculty of Law at the University of the Western Cape (UWC), has a career in academia spanning more than 30 years. She became the first black Head of Department, Professor, Dean (the first woman Dean of a South African Law Faculty) and Senior Professor in the Faculty. She is an admitted Advocate.
She has four law degrees. Both her LLM and LLD degrees were the first awarded at UWC, and the theses were the first to deal, respectively, with the Islamic law of succession, and constitutionalism and Muslim Personal Law (MPL). She has engaged in doctoral (at Yale Law School) and post-doctoral (at the School for Oriental and African Studies) research.
She is a National Research Foundation rated researcher. Her research milestones include drafting contributions to two South African Law Reform Commission Projects: on Muslim children (Project 110, 1998) and on Muslim marriages (Project 59, 1999-2003). She is the author of many academic articles, and of several first of their kind South African books: “Unveiling the Mind: A Herstory” (2004; 2nd edition 2011) on the legal position of Muslim women, a co-edited volume “Muslim Personal Law in South Africa” (2019) containing contributions on MPL, and “The Mystery of the Apostasy of Shaykh Yusuf of Makassar’s Alleged Grandchildren: The Children of The Rajah of Tambora” (2021) which is an investigative and literary work on a critical time in our history and tackling an important issue on the legacy of Shaykh Yusuf of Macassar.
She has given many high-profile lectures and presented at conferences, locally and all over the world. As a graduate-alumna of both the HERS-SA Academy and the American Council on Education (ACE) Fellows Program, she has received mentorships at, respectively, Wellesley College and Old Dominion University. She is the recipient of many teaching, research and community awards. She currently serves as a member of the Editorial Team of “Jurnal Syariah” [Shariah Journal].
In August 2019 she was a nominee for the inaugural Women in Law South Africa (WOZA) award for her excellence in academia. In October 2020 she was nominated by the Dean as ‘Top Achiever’ in the Law Faculty for the second edition of Digimag, an initiative started by the Deputy Vice-Chancellor (Academic) focusing on excellence of women academics and women leaders at UWC. In December 2021 she was a recipient of the Panache Women of Wonder (WOW) award.
https://scholar.google.com/scholar?hl=en&as_sdt=0%2C5&q=najma+moosa&btnG=
https://orcid.org/0000-0002-3174-1923
https://www.researchgate.net/profile/Najma_Moosa/experience
https://repository.uwc.ac.za/discover?scope=%2F&query=najma+moosa&submit=edit
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On 28 June 2022 the apex or Constitutional Court (CC) handed down a much-awaited judgment which impacts upon Muslim marriages concluded purely in terms of Islamic law in South Africa. Does the judgment mean that such Muslim marriages are... more
On 28 June 2022 the apex or Constitutional Court (CC) handed down a much-awaited judgment which impacts upon Muslim marriages concluded purely in terms of Islamic law in South Africa. Does the judgment mean that such Muslim marriages are now fully recognised for all purposes in the South African legal context? The simple answer is "no". The rationale for this conclusion is to be found in the two-pronged judgment. The first part of the judgment is wholly suspended and will only and automatically come into effect if remedial legislation is not enacted in 24 months. The second part of the judgment pertains to an interim order which takes effect immediately and applies retrospectively to all Muslim marriages that subsisted on 15 December 2014 (when the case was first launched by the Women's Legal Centre in the Western Cape High Court) and to Muslim marriages which, although terminated before that date, were still subject to ongoing legal proceedings at that date. While the...
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In hierdie aantekening ontleed die outeurs eerstens die reg van ’n Moslemweduwee om ’n onderhoudseis teen haar oorlede man se boedel in te stel ooreenkomstig artikel 1 van die Wet op Onderhoud van Langslewende Gades 27 van 1990 in die... more
In hierdie aantekening ontleed die outeurs eerstens die reg van ’n Moslemweduwee om ’n onderhoudseis teen haar oorlede man se boedel in te stel ooreenkomstig artikel 1 van die Wet op Onderhoud van Langslewende Gades 27 van 1990 in die geval waar die egpaar nie ’n burgerlike huwelik aangegaan het nie, maar slegs ooreenkomstig ’n huwelikskontrak (nikah) ingevolge Moslemreg (Sharia) getroud was. Tweedens word die vraag na die regsgeldigheid van sodanige eis ingevolge Moslemreg ontleed. Hierdie ontleding berus op die feite wat blyk uit ’n ongeredigeerde weergawe van die onlangse Wes-Kaapse hooggeregshof-uitspraak LB v FNB Trust Services (Pty) Ltd NO wat op 27 September 2022 gelewer is. Hierdie saak handel oor die geval waar ’n Moslemweduwee in effek onterf is deurdat die oorledene haar nie as ’n testamentêre begunstigde aangewys het nie. Terwyl sodanige onterwing deur die Suid-Afrikaanse reg se onderskrywing van testeervryheid toegelaat word, word hierdie vryheid ingevolge Moslemreg bep...
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Faskh (divorce) and intestate succession in Islamic and South African law: impact of the watershed judgment in Hassam v Jacobs and the Muslim Faskh (divorce) and intestate succession in Islamic and South African law: impact of the watershed judgment in Hassam v Jacobs and the Muslim Marriages Bill*more
This article deals with intestate succession against the background of the complex Islamic legal aspects of faskh and talaq as forms of divorce. It elaborates on the divergent views held by Islamic scholars and explains the foundational... more
This article deals with intestate succession against the background of the complex Islamic legal aspects of faskh and talaq as forms of divorce. It elaborates on the divergent views held by Islamic scholars and explains the foundational principles of Islamic law. The article offers a new perspective on the groundbreaking case of Hassam v Jacobs and sheds light on its surrounding circumstances and factual background in order to indicate that the Cape High Court may have unnecessarily pronounced on the recognition of polygynous Muslim marriages, an issue which in fact may not have been before the court. The article also examines how the Islamic law of divorce is practically administered by Islamic organisations within Cape Town. Practical recommendations are offered for dealing with the complexities of recognising and administering aspects of Islamic law in secular courts and the interaction with Islamic bodies administering Muslim personal law.
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The issue of abortion has been the subject of much debate in the recent past in South Africa. Prior to 1996 abortion legislation was punitive and therefore one with which conservative Muslims could identify. Since 1996 the law has been... more
The issue of abortion has been the subject of much debate in the recent past in South Africa. Prior to 1996 abortion legislation was punitive and therefore one with which conservative Muslims could identify. Since 1996 the law has been liberalized and replaced by a new Act. The final Constitution (1996) took a neutral stance regarding abortion. The enactment of the Choice on Termination on Pregnancy Act (1996) finally ensured this right. The Act, a critical milestone for gender equality, secured all South African women (including minors) the right to make decisions about reproduction and according to their individual beliefs. Muslim organizations participated in this abortion debate making formal but opposing submissions to Parliament. These opposing views of Muslims came as no surprise and reflect the different norms of Islamic law which varies between countries and was indicative of the interpretative duality evident in most matters of Islamic law.
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Page 1. The Future of African Customary Law Customary laws and traditional institutions in Africa constitute comprehensive legal sys-tems that regulate the entire spectrum of activities from birth to death. Once the sole source ...
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Termination of pregnancy (abortion) and foetal protection remain a challenging topic in South Africa where abortion is legalised and largely decriminalised. As a general rule, an unborn (nasciturus) does not have legal status and a human... more
Termination of pregnancy (abortion) and foetal protection remain a challenging topic in South Africa where abortion is legalised and largely decriminalised. As a general rule, an unborn (nasciturus) does not have legal status and a human right to life, until born alive. A meaningful engagement with South African law highlights that the life of an unborn may be worthy of protection in some abortion cases. This paper proffers an argument favouring increased foetal protection that goes beyond the usual pro-life/pro-choice perspectives. It proposes, as an exception to the general rule, the application of the nasciturus maxim as a "rule" to conditionally advance legal subjectivity to an unborn and thereby afford it rights. It argues that such application may be reinforced when combined with a "legal" foetal viability implicit in the abortion law. Such proposal does not require any amendment to the existing law.
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Termination of pregnancy (abortion) and foetal protection remain a challenging topic in South Africa where abortion is legalised and largely decriminalised. As a general rule, an unborn (nasciturus) does not have legal status and a human... more
Termination of pregnancy (abortion) and foetal protection remain a challenging topic in South Africa where abortion is legalised and largely decriminalised. As a general rule, an unborn (nasciturus) does not have legal status and a human right to life, until born alive. A meaningful engagement with South African law highlights that the life of an unborn may be worthy of protection in some abortion cases. This paper proffers an argument favouring increased foetal protection that goes beyond the usual prolife/pro-choice perspectives. It proposes, as an exception to the general rule, the application of the nasciturus maxim as a “rule” to conditionally advance legal subjectivity to an unborn and thereby afford it rights. It argues that such application may be reinforced when combined with a “legal” foetal viability implicit in the abortion law. Such proposal does not require any amendment to the existing law.
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This article approaches the position of the call to prayer (adhan or azan) in South Africa from the perspective of both legislation and case law. Although only an unamplified adhan has religious status in Islam, Muslim religious... more
This article approaches the position of the call to prayer (adhan or azan) in South Africa from the perspective of both legislation and case law. Although only an unamplified adhan has religious status in Islam, Muslim religious authorities (ulama) have since the twentieth century also approved of, and permitted, an amplified adhan. The adhan has been rendered in both forms from South African mosques (masjids) for some 223 years. However, the unamplified adhan has recently come under the legal and judicial spotlight when the volume of its rendering by human voice was restricted. In August 2020, after prior attempts at municipal level and mediation had been unsuccessful, a high court in KwaZulu-Natal, South Africa, ruled that the sound of the unamplified adhan emanating from a mosque located on the premises of an Islamic institution (madrassa) in the city of Durban should not be audible within the house situated on nearby property belonging to a Hindu neighbor. Wide media coverage re...
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This article deals with intestate succession against the background of the complex Islamic legal aspects of faskh and talaq as forms of divorce. It elaborates on the divergent views held by Islamic scholars and explains the foundational... more
This article deals with intestate succession against the background of the complex Islamic legal aspects of faskh and talaq as forms of divorce. It elaborates on the divergent views held by Islamic scholars and explains the foundational principles of Islamic law. The article offers a new perspective on the ground-breaking case of Hassam v Jacobs and sheds light on its surrounding circumstances and factual background in order to indicate that the Cape High Court may have unnecessarily pronounced on the recognition of polygynous Muslim marriages, an issue which in fact may not have been before the court. The article also examines how the Islamic law of divorce is practically administered by Islamic organisations within Cape Town. Practical recommendations are offered for dealing with the complexities of recognising and administering aspects of Islamic law in secular courts and the interaction with Islamic bodies administering Muslim personal law.
Research Interests:
Abortion, or termination of pregnancy, albeit in gradations from most to less restrictive to unrestricted, has always been legally allowed in South Africa. This questions the need for the introduction of new law. Legalisation of abortion... more
Abortion, or termination of pregnancy, albeit in gradations from most to less restrictive to unrestricted, has always been legally allowed in South Africa. This questions the need for the introduction of new law. Legalisation of abortion has reduced abortion to a form of failed contraception. Illegal abortions motivated new law, as well as research, Professor Lourens Marthinus du Plessis' constitutional argument favouring women's (reproductive) right to abortion. Yet, illegal abortions continue as before democracy when the seemingly Christian, racially-motivated law, was flouted by white and black women alike. The Constitution adopts a neutral position on the right to life, but is decidedly pro-abortion. This does not imply that a constitutional challenge, which has yet to occur, seeking to amend the current status quo and to provide protection to an unborn, may be an exercise in futility. This article is written in honour of, and analyses the role and early "pro-life&q...
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Muslims form 10 per cent of the Sri Lankan population. The country applies a mixed legal system. For many decades Muslim marriages and divorces have been governed by a separate piece of legislation. Courts in Sri Lanka have interpreted... more
Muslims form 10 per cent of the Sri Lankan population. The country applies a mixed legal system. For many decades Muslim marriages and divorces have been governed by a separate piece of legislation. Courts in Sri Lanka have interpreted some of the legislative provisions. The purpose of this article is to highlight the case law emanating from Sri Lankan courts interpreting the provisions of the Muslim Marriage and Divorce Act 13 of 1951 dealing with different issues: age for marriage; proof of marriage; co-existence of a civil marriage and a Muslim marriage; maintenance of children especially children born out of wedlock; and types of divorce.
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The 1975 Abortion and Sterilisation Act (ASA)1 was the first statute to regulate abortion in South Africa. The ASA provided that abortion was illegal. Although the default legal position adopted by it appeared to be clearly prolife, it... more
The 1975 Abortion and Sterilisation Act (ASA)1 was the first statute to regulate abortion in South Africa. The ASA provided that abortion was illegal. Although the default legal position adopted by it appeared to be clearly prolife, it nonetheless allowed abortion in certain circumstances. Although much more restrictive, abortion was also allowed in terms of the common law prior to the enactment of the ASA. With the formal advent of democracy in 1994, two parallel legal processes pertaining to abortion were simultaneously taking place alongside the transition from apartheid. The first process led to the statutory legalisation of abortion in 1996 when the ASA was replaced by the current statute regulating abortion, namely, the Choice on Termination of Pregnancy Act (CTOPA). 2 Unlike the ASA, the CTOPA assured a default legal position that clearly favoured a secular, pro-choice view. Its enactment also resulted in the offence of abortion being largely decriminalised. Since then it als...
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This paper is the second part of the two articles that discuss the controversy over the conversion of religion in the family of Shaykh Yusuf of Makassar after being exiled in South Africa during the Dutch colonial period at the end of the... more
This paper is the second part of the two articles that discuss the controversy over the conversion of religion in the family of Shaykh Yusuf of Makassar after being exiled in South Africa during the Dutch colonial period at the end of the seventeenth century. This second part provides a critical and holistic analysis of the historical sources and historians’ initial arguments regarding the two families, Shaykh Yusuf and his in-laws. This paper also tries to review the main arguments of this paper so as not to get caught up in excessive demystification. In addition, it also discusses the implementation of the Dutch colonial policies as well as the issue of poverty and the practice of marriage policies that have contributed to settling this conversion problem.[Tulisan ini adalah bagian kedua dari dua tulisan yang membahas kontroversi pindah agama pada keluarga Syekh Yusus Makassar selepas diasingkan di Afrika Selatan pada masa kolonial Belanda akhir abad 17. Bagian kedua ini menyajika...
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MPL is a religiously based private law which pertains to, inter alia, marriage, divorce, inheritance, polygyny, custody and guardianship, and which falls under the category of family law. It has its origin in the Qur'an,2 which, along... more
MPL is a religiously based private law which pertains to, inter alia, marriage, divorce, inheritance, polygyny, custody and guardianship, and which falls under the category of family law. It has its origin in the Qur'an,2 which, along with the Sunna3 of Prophet Muhammad, is the primary source of Islam. The Qur'an is not a lawbook, as only a small number, approximately eighty, of the verses deal with legal matters. Most of them pertain to personal laws. It is in the areas explicitly referred to by these (divine) verses that one finds little or no change in various Muslim countries, which were quite prepared to follow secular codes in other areas, such as commercial and criminal law. Minor (conservative)
All women face similar status problems in the private and public spheres of life but it is alleged that, as members of a religious community, Muslim women experience another inequality. This double inequality has resulted in a dichotomy... more
All women face similar status problems in the private and public spheres of life but it is alleged that, as members of a religious community, Muslim women experience another inequality. This double inequality has resulted in a dichotomy between their public lives governed by secular laws and constitutions, and their private lives governed by religion. To date this conflict remains unresolved in various Muslim and non-Muslim countries. As will be indicated, commercial, criminal and penal codes were easily secularised but personal codes remained governed by religion. Traditional interpretations of Islam govern personal laws and as a result personal law codes conflict with the constitutions of Muslim majority and minority countries. While the constitutions of these countries guarantee equal rights to all citizens, the personal law codes privilege men over women in the areas covered by these personal laws resulting in the inequality of the sexes.' There does not, however, appear to ...
Research Interests: Law and Islamic Law
Ukuthuthukisa amalungelo abantu abayidlanzana esimeni samalungelo ezomnotho, awezokuhlalisana kanye nawezamasiko eNingizimu Afrika. Kulo mbhalo, umbhali uxoxa ngokuthuthukiswa kwamalungelo abantu abayidlanzana eNingizimu Afrika mayelana... more
Ukuthuthukisa amalungelo abantu abayidlanzana esimeni samalungelo ezomnotho, awezokuhlalisana kanye nawezamasiko eNingizimu Afrika. Kulo mbhalo, umbhali uxoxa ngokuthuthukiswa kwamalungelo abantu abayidlanzana eNingizimu Afrika mayelana nesimo sezomnotho, ezokuhlalisana kanye nezamasiko. Uthi incazelo eqculisayo ngabay'glanzana isantuleka' futhi nokuntuleka kwencazelo leyo, kunemiphumela ethinta imicabango okusetshenzelwa phezu kwayo ngalokho okwenziwayo. Uthi amalungelo abantu abayiglanzana okungwe ezenkolo, ezolimi nawezamasiko kumele afakwe emingceleni yamalungelo ezokuhlalisana nawezomnotho. Ngokomthethosisekelo waseNingizimu Afrika, isigaba 31, sibheka amalungiselelo okuthi abantu abangamalungu omphakathi othile kwezamasiko, ezenkolo noma ezolimi akumele benqatshelwe ilungelo lokuthokozela amasiko abo, lokulandela inkolo yabo nelokusebenzisa ulimi lwabo. Ngaphezu kwalokho, iSahluko 9 somthethosisekelo svumeia ucuverwa kwe iKhomishani yokuGqugquzelwa nokuVikelwa kwamaLun...
The issue of abortion has been the subject of much debate in the recent past in South Africa. Prior to 1996 abortion legislation was punitive and therefore one with which conservative Muslims could identify. Since 1996 the law has been... more
The issue of abortion has been the subject of much debate in the recent past in South Africa. Prior to 1996 abortion legislation was punitive and therefore one with which conservative Muslims could identify. Since 1996 the law has been liberalized and replaced by a new Act. The final Constitution (1996) took a neutral stance regarding abortion. The enactment of the Choice on Termination on Pregnancy Act (1996) finally ensured this right. The Act, a critical milestone for gender equality, secured all South African women (including minors) the right to make decisions about reproduction and according to their individual beliefs. Muslim organizations participated in this abortion debate making formal but opposing submissions to Parliament. These opposing views of Muslims came as no surprise and reflect the different norms of Islamic law which varies between countries and was indicative of the interpretative duality evident in most matters of Islamic law.
Research Interests:
This book is very timely and succeeds admirably in its aim to be a valuable contribution to and lens through which to view African customary law. The authors of the various chapters, and especially the editors, are to be commended for... more
This book is very timely and succeeds admirably in its aim to be a valuable contribution to and lens through which to view African customary law. The authors of the various chapters, and especially the editors, are to be commended for compiling an academic work that will serve as an overdue and essential text for graduate and post-graduate students, lecturers and persons generally interested in understanding African customary law. Indeed, it encourages the offering of an advanced course in comparative African law and is comprehensive enough to serve as a primary handbook for such a course.
Abortion, or termination of pregnancy, albeit in gradations from most to less restrictive to unrestricted, has always been legally allowed in South Africa. This questions the need for the introduction of new law. Legalisation of abortion... more
Abortion, or termination of pregnancy, albeit in gradations from most to less restrictive to unrestricted, has always been legally allowed in South Africa. This questions the need for the introduction of new law. Legalisation of abortion has reduced abortion to a form of failed contraception. Illegal abortions motivated new law, as well as research, Professor Lourens Marthinus du Plessis’ constitutional argument favouring women’s (reproductive) right to abortion. Yet, illegal abortions continue as before democracy when the seemingly Christian, racially-motivated law, was flouted by white and black women alike. The Constitution adopts a neutral position on the right to life, but is decidedly pro-abortion. This does not imply that a constitutional challenge, which has yet to occur, seeking to amend the current status quo and to provide protection to an unborn, may be an exercise in futility. This article is written in honour of, and analyses the role and early “pro-life” views of the ...
This article focuses on the controversial issue of apostasy pertaining to the alleged family of Shaykh Yusuf of Makassar, the Indonesian pioneer of Islam in colonial South Africa, after his demise at the Cape in the late 17th century... more
This article focuses on the controversial issue of apostasy pertaining to the alleged family of Shaykh Yusuf of Makassar, the Indonesian pioneer of Islam in colonial South Africa, after his demise at the Cape in the late 17th century during a period of Dutch occupation of both countries. It is reported in local and international historical and scholarly sources that the second generation grandchildren of this political exile and learned Islamic scholar converted from Islam to Christianity at the Cape and thereafter entered into marriages with Christian spouses. Their mother is alleged to have been the Shaykh’s daughter, Zytie Sara Marouff (alias Care Sale), and their father, the Rajah or King of Tambora (alias Abulbasi Sultan), a fellow exiled countryman. The marriage between the Rajah and Zytie is alleged to have taken place shortly after his arrival at the Cape in 1698 but before the death of Shaykh Yusuf in 1699. The conversions are recorded to have taken place within two decades...
Research Interests: Law and Islamic Law
... 15 Ahmed Women and Gender in Islam 52. See also n 14 supra. 16 Haykal The Ufe ofMuhammad 293. ... Die situasie in Suid-Afrika word in oënskou geneem. Dit word deur 'n kort vergelyking van grondwette van... more
... 15 Ahmed Women and Gender in Islam 52. See also n 14 supra. 16 Haykal The Ufe ofMuhammad 293. ... Die situasie in Suid-Afrika word in oënskou geneem. Dit word deur 'n kort vergelyking van grondwette van verskeie Moslemlande gevolg. ...