IOL EXCLUSIVE | Nafaqah recognised in SA law: A landmark ruling for Muslim women and why it matters

Judge Mas-udah Pangarker and acting Judge Igshaan Higgins a both of whom are Muslim, have made a groundbreaking ruling which has set a precedent for South African family law and Muslims around the country. Setting a groundbreaking precedent for South African family law and Muslims around the country, the Western Cape High Court has ruled that the Islamic legal obligation of nafaqah can serve as the foundation for a civil claim for financial reimbursement between divorced Muslim spouses. Nafaqah refers to the husband’s religious duty to maintain his wife,spousal maintenance.

Delivered on Tuesday, the judgment by Judge Mas-udah Pangarker and ActingJudge Igshaan Higginsawarded Cape Town attorney Yasmeen Moollajie R96,780 plus costs against her former husband, Samiulla Parker. The couple wasmarried according to Islamic ritesin August 2020, but the marriage was short and turbulent. The marriage dissolved via an Islamic annulment (faskh) just a year later.

However, during their marriage, Moollajie bore the “lion’s share” of household expenses because Parker, an NGO worker, was under debt review and financially constrained. In total, Moollajie sued for over R154,000 to recover funds she spent on rent, groceries, medical bills for their prematurely born son, an insurance excess after Parker crashed her car, and startup capital for Parker’s vape juice business. Moollajie initially sought reimbursement at the Wynberg Magistrates’ Court.

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The Magistrate’s Court dismissed her claim, adopting a “strictly civil law outlook” and determined that the Islamic principle of nafaqah had “no place in South African law”. Something important to note and what lies at the centre of this case is that the court treated her payments as voluntary gifts, rather than an obligation. The matter was then brought on appeal before acting Judge Higgins and Judge Pangarker, both of whom are Muslim, overturned the lower court’s decision, explicitly committing to developing a more inclusive South African jurisprudence.

The judges noted that the magistrate erred by ignoring the couple’s religious context, particularly following the Constitutional Court’s landmark recognition of Muslim marriages and the subsequent Divorce Amendment Act 1 of 2024 (more on this later, too). The High Court held that while nafaqah is not directly enforceable as religious doctrine in a civil court, it provides a crucial “normative backdrop” for understanding the couple’s financial conduct. Relying on the uncontested expert testimony of Mufti Mogamat Maker, the court affirmed that nafaqah is a mandatory legal obligation in Islam.

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