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.
Image: Supplied
In a landmark ruling for South African family law and Muslims around the country, the Western Cape High Court has established that nafaqah, an Islamic financial obligation, can form the basis for civil claims for financial reimbursements 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 Acting Judge Igshaan Higgins awarded Cape Town attorney Yasmeen Moollajie R96,780 plus costs against her former husband, Samiulla Parker.
The couple was married according to Islamic rites in 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. 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 was a mandatory legal obligation in Islam.
The court accepted that when a husband is unable to fulfil this duty (as in this case), and his wife steps in to cover essential living expenses, Islamic law presumes she is extending a loan (Qard), not a gift.
It is worth noting that this presumption stands unless the wife explicitly waives her right to repayment, which she did not do.
Because Parker failed to prove that Moollajie unequivocally waived her right to be reimbursed, the court inferred a tacit agreement between the parties.
The judges noted that Parker even admitted during cross-examination that the marriage would not have proceeded if Moollajie had not paid the rent, demonstrating that her payments were necessary conditions, not "voluntary benevolence".
The Divorce Amendment Act 1 of 2024 shifted how the court was required to evaluate the dispute between the parties.
Alongside its precursor in the case of the Constitutional Court's judgment in Women’s Legal Centre Trust v President of the Republic of South Africa, which officially recognised Muslim marriages, the Act meant that the magistrate was legally obligated to consider the specific context of the parties as ex-spouses in an Islamic marriage.
Because of these legislative developments, the High Court determined that the lower court made a material error by adopting a "strictly civil law outlook" that outright dismissed the Islamic principle of nafaqah (spousal maintenance) as having "no place in South African law".
Instead of treating the case as a standard civil dispute stripped of cultural context, the 2024 Act provided the legal foundation for the High Court to assert that expert evidence on Islamic law must not be ignored.
It allowed the judges to utilise the religious obligation of nafaqah as the crucial "normative backdrop" to properly understand the couple's financial intentions and infer a tacit agreement for repayment.
This is a first-of-its-kind ruling that provides a practical legal mechanism to protect Muslim women. It is the first reported High Court decision to explicitly use the Islamic obligation of nafaqah to support a civil claim for monetary reimbursement between divorced Muslim spouses. In this case and possibly many others, the ruling effectively dismantled the common legal defence used by ex-husbands that a wife's financial contributions during a marriage were merely "voluntary gifts". By saying they were gifts, loopholes could have been exploited.
By successfully harmonising religious legal norms with civil law, the judgment serves as a strict directive to Magistrates' courts across the country: claims can no longer be dismissed simply because they arise from an Islamic marriage or rely on cultural principles like nafaqah.
So rather than enforcing religious law outright, the court integrated religious norms into civil law by using nafaqah as part of the "factual matrix" to determine the parties' legal intentions (such as inferring a tacit contract).
The case signals a very strong message that matters that carry cultural and religious significance should be assigned to appropriate and capable judges who have the knowledge of the culture and its implications.