Government Land Reparations

Q: In the apartheid times the government forcefully took away many properties from our parents and grandparents and gave them meagre sums of money as a form of compensation. The government is now compensating people who were affected by giving applicants claiming that their parents/grandparents properties had been expropriated, by giving them properties in lieu of the injustice done. My question is that would the properties now given form part of the estate of the deceased to be distributed amongst the heirs or will they be the sole right and ownership of the applicant.

A: It is a principle of Islamic Law that when a non Muslim state usurps the land or property of a Muslim, that state or government becomes its owner, as stated in the famous Hanafi law book Al-Hedayah. This means that such a property has left the possession of the Muslim and has entered the ownership of the non Muslim state. Upon the occurrence of such a transfer of ownership, the Muslim has lost all rights to that property. Consequently when that Muslim dies, the property usurped from him by the state does not form part of his estate. His heirs will have no claim to such a property at any stage. The same law applies to properties acquired by the State through forced sales. The owners forfeited all rights over those properties to the state the moment they signed the deeds of sale. Years later, when the new government decides to compensate the former owners by giving them the same properties back, or other properties in its place, this must not be considered a retrieval of a past right, or a type of refund. In Shar'ee terms restitution of land is actually a gift or grant by the government to compensate the former owners for their losses. Hence, whoever the authorities decide to give these lands to, will become the owners. As stated earlier, lands lost to the apartheid government no longer belonged to the former owners, so such lands were never inherited by the heirs. On this basis, when today lands are given to people who lost theirs during the apartheid regime, it will be regarded as government grants. The recipients are the owners, not the heirs of the former owners. So these lands and properties will not form part of the deceased estate and does not need to be distributed among surviving heirs. The one who receives such a land from the state will own it unconditionally.