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[2017] ZAWCHC 97
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Moosa NO and Others v Harnaker and Others (400/17) [2017] ZAWCHC 97; [2017] 4 All SA 498 (WCC); 2017 (6) SA 425 (WCC) (14 September 2017)
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Note:
Certain
personal/private details of parties or witnesses have been
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Republic
of South Africa
IN THE HIGH
COURT OF SOUTH AFRICA
[WESTERN CAPE
DIVISION, CAPE TOWN]
Case No:
400/17
In
the matter between:-
FAREED
MOOSA
N.O.
First
Applicant
AMINA
HARNAKER
Second
Applicant
FARIEDA
HARNEKER
Third
Applicant
and
NAZEER
HARNAKER
First
Respondent
ZAHRAA
HARNAKER
Second
Respondent
NAZIA
LUDDY
Third
Respondent
SAFAA
LUDDY
N.O.
Fourth
Respondent
IKHLAAS
BACHOOA
Fifth
Respondent
FATIMA-ZAHRA
BACHOOA
Sixth
Respondent
SIHAM
NADEEM
N.O.
Seventh
Respondent
SIHAM
NADEEM
N.O.
Eighth
Respondent
SIHAM
NADEEM
N.O.
Ninth
Respondent
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Tenth
Respondent
THE
MASTER OF THE HIGH COURT OF
SOUTH
AFRICA, WESTERN
CAPE
Eleventh
Respondent
THE
REGISTRAR OF DEEDS, CAPE
TOWN
Twelfth
Respondent
and
THE
WOMEN’S LEGAL CENTRE
TRUST
Amicus
Curiae
JUDGMENT
DELIVERED 14 SEPTEMBER 2017
LE
GRANGE, J
:
Introduction:
[1]
In this
unopposed application, the crisp
legal issue for consideration is whether in view of the equality
provisions in terms of s 9 of
our Constitution, the provisions of s
2C(1) of the Wills Act, 7 of 1953 (“the
Wills Act&rdquo
;), can
be extended to protect surviving spouses in polygynous Muslim
marriages.
[2]
The Applicants are challenging the decision taken by the Twelfth
Respondent refusing to register a portion of Erf [...] Cape
Town into
the name of the Third Applicant. The Twelfth Respondent’s
refusal is premised on the meaning of the term ‘surviving
spouse’ as contemplated in terms of
s 2C(1)
of the
Wills Act.
According
to the Twelfth Respondent the only recognised surviving
spouse of the deceased is the Second Applicant as they entered into a
civil
marriage in terms of the Marriages Act 25 of 1961. The Twelfth
Respondent expressed the view that the meaning of a ‘surviving
spouse’ in the
Wills Act must
be interpreted strictly and
despite being married to the deceased by Muslim rites and lived in a
polygamous relationship, the Third
Applicant cannot be regarded as
‘surviving spouse’ as contemplated in the
Wills Act.
The
Background:
[3]
The salient background facts underpinning this matter are
uncontroversial.
The deceased married the
Second Applicant by Muslim rites on 10 March 1957. The deceased
thereafter married the Third Applicant
on 31 May 1964. Both marriages
was solemnised by way of a marriage ceremony and took place in
accordance with the tenets of Islamic
Law. The marriage certificates
evidencing their solemnisation of the marriages under Islamic Law
were annexed to the papers filed
of record.
[4] There is no
dispute that the deceased, Second and Third Applicants’ at all
material times, practised the Islamic faith
religiously and at the
time of the deceased’s death on 9 June 2014, were party to
polygynous Muslim marriages. It needs to
be mentioned that the Second
Applicant also consented to the deceased’s marriage to the
Third Applicant. Nine children were
born from both marriages.
[5] According to
the undisputed facts, the deceased in 1982 applied for a home loan
from a bank in order to purchase the current
family home, Erf [...]
Cape Town. According to the papers filed of record, in order to
qualify for such a loan the deceased needed
to be married lawfully,
as at the time under our legal system polygynous Muslim marriages
were not recognised and were still treated
as a common law crime.
[6] In August
1982, the deceased and the Second Applicant with the consent of the
Third Applicant formalised their marriage under
South African law.
The said property was purchased and held in the names of the deceased
and Second Applicant under Deed of Transfer
T10603/88. Since then and
until his death in 2014, the deceased lived with both wives and some
of their children in the family
home. The deceased’s religious
marriage to the Third Applicant was not formalised under the
Civil
Union Act 17 of 2006
. Upon the deceased’s death it followed
that both marriages were terminated.
[7]
The deceased in his Last Will and Testament (“the Will”)
dated 23 January 2011, expressly referred to his marriages
to both
women. In terms of the Will the deceased directed that his estate
should devolve in terms of Islamic Law and that a certificate
from
the Muslim Judicial Council or any other recognised Muslim Judicial
Authority shall be final and binding on his executors.
To this end,
the Muslim Judicial Council of South Africa did issue a certificate
regarding the distribution of the estate. In terms
of the Islamic
distribution certificate, the deceased’s estate was to be
divided in 1/16
th
shares
to each of the Second and Third Applicant, 7/52 to each of the four
surviving sons and 7/104 to the five surviving daughters.
[8] According to
the First Applicant (“the Executor”), all the surviving
children renounced their benefits due to them
under the Will.
In this regard all heirs of the deceased agreed and expressed their
intention in writing to renounce all
their benefits accruing to them
in terms of the Will read with the Islamic distribution certificate
and stipulated that it be inherited
in equal shares by the Second and
Third Applicants. As a result of the renunciation, the Executor
relied upon the provisions of
s 2C(1)
of the
Wills Act. The
Executor
opted not to follow the Islamic Law with regard to renunciation.
[9] The
Executor, then for the purposes of applying
s 2C(1)
, considered both
the Second and Third Applicant to be a ‘surviving spouse’.
According to the Executor, the First and
Final Liquidation and
Distribution Account (“L & D account”) of the
deceased’s estate recorded that the Second
and Third Applicant
will each receive an equal share of the benefits renounced (namely,
R273 347,30 per person). This calculation
in the L & D account
was accepted by the Eleventh Respondent (“the Master”).
[10] The
Executor then sought to effect registration of transfer, of the
deceased’s one half share of Erf [...] Cape Town,
which
included that portion thereof which was renounced by the deceased’s
children.
[11] The Twelfth
Respondent approved the registration of that portion of the benefits
renounced by the deceased’s descendants
to the Second
Applicant. According to the Twelfth Respondent the Second Applicant’s
marriage to the deceased was protected
in terms of their civil
marriage and as such was recognised as a ‘surviving spouse’
under
s 2C(1).
[12] The Twelfth
Respondent had however a different view on the Third Applicant. The
Twelfth Respondent was of the view that all
benefits renounced by the
descendants of the deceased born of his marriage to the Third
Applicant, should vest in the children
of those descendants under
s 2C(2).
On
this basis, the Twelfth Respondent decided that those proprietary
benefits cannot be registered in the name of the Third
Applicant
under the Deeds Registries Act.
[13] The
rationale underpinning the Twelfth Respondent’s view, seems to
be that the term ‘surviving spouse’ under
s 2C(1) should
be strictly interpreted to encompass spouses recognised under the
Marriages Act and or the
Civil Union Act. Despite
these views, the
Twelfth Respondent including the Tenth Respondent elected to abide
the decision of this court.
[14] In the
absence of any evidence or argument by the Twelfth Respondent or
those in government qualified to do so, it is only
the evidence and
argument of the Applicants and that of the Amicus that can be
considered.
The
relief:
[15]
The relief sought by the Applicants are wide in form and substance,
and are the following:
(a)
‘
An Order that,
in
terms of section 172(1)(a) of the Constitution of the Republic of
South Africa, 1996 (
‘
the
Constitution’), section 2C(1) of the Wills Act 7 of 1953 (‘the
Wills Act&rsquo
;) is inconsistent with the Constitution and invalid
to the extent that, for the purposes of the operation of section
2C(1), the
term ‘surviving spouse’ therein does not
include a husband or wife in a marriage that was solemnised under the
tenets
of Islamic Law (Shari’ah);
(b)
An Order that, in terms of section 172(1)(a) of the
Constitution,
section 2C(1)
of the
Wills Act is
inconsistent with the
Constitution and invalid to the extent that, for the purposes of the
operation of section 2C(1), the term
‘surviving spouse’
therein does not
include
more than one spouse as a ‘surviving spouse’ in any form
of marriage to which section 2C(1) applies;
(c)
An Order that ‘surviving spouse’ in
section 2C(1)
of the
Wills Act
encompasses
in its meaning not only a surviving spouse in the legal sense but
also
every ‘surviving’
husband or wife (‘spouse’) who was married by Muslim
rites to the deceased testator contemplated
by
section 2C(1)
,
irrespective whether such marriage was de facto monogamous or
polygamous;
(d)
An Order that, in terms of section 172(1)(b) of the
Constitution, it is just and equitable to read
s 2C(1)
of the
Wills
Act as
including the underlined words:
‘
If
any descendants of a testator, excluding a minor or a mentally ill
descendant, who, together with the surviving spouse of the
testator,
is entitled to a benefit in terms of a will renounces his right to
receive such benefit, such benefit shall vest in the
surviving
spouse.
For
purposes of this sub-section, a ‘surviving spouse’
includes every husband and wife of a de facto monogamous and
polygamous union that is solemnised in accordance with Muslim rites.’
(e)
An Order setting aside as invalid the Twelfth
Respondent’s decision that the Third Applicant is not a
‘surviving spouse’
of the late Osman Harnekar (‘the
deceased’) for purposes of receiving benefits under
s 2C
(1) of
the
Wills Act;
(f
)
An order directing and obliging the Twelfth
Respondent to register the transfer of ERF [...] Cape Town from
estate of the deceased
into the joint names of Second and Third
Applicant as per Annexures FM7 read with FM8
;
(g)
That
the Orders granted herein shall have no effect on the validity of any
acts performed in respect of the administration of a
testate estate
that has been finally wound up under the
Administration of Estates
Act 66 of 1965
or any other similar statute by the date of this
order.’
Argument:
[16]
The Attorney, Dr Fareed Moosa appeared for the Applicants. He is also
the Executor of the deceased’s estate. The Attorney
Ms. S
Samaai appeared on behalf of the Amicus. I would like to express my
gratitude to both for their extensive heads of argument.
It was of
great assistance in preparing this judgment.
[17]
Dr Moosa’s argument concentrated inter alia on the equality
provision of the Constitution. He argued that the undisputed
facts in
this matter clearly demonstrate unfair discrimination in respect of
widows as ‘surviving spouses’ in polygynous
Muslim
marriages. It was further contended that the deceased marriage to the
Third Applicant was fully recognised under Islamic
Law and in terms
of the equality provision of s 9 of the Constitution, there could be
no legal impediment against their union that
was properly solemnised
in accordance with the Muslim religious faith. Furthermore, the Third
Applicant’s marriage to the
deceased could not be less
significant than that of a civil marriage under the Marriages Act or
an African customary marriage.
Similarly, the dignity of parties to a
Muslim polygynous marriage cannot be less than that of parties to
civil marriages and African
customary marriages. It was also argued
that the concept of ‘surviving spouse’ as currently
understood and given effect
to by the Twelfth Respondent in terms of
s 2C(1) unfairly discriminates against the Third Applicant on the
grounds of religion
and marital status.
[18]
Ms Samaai, on behalf of the Amicus argued that the core objective of
the Women Legal Centre Trust (“WLC”) is to
advance and
protect the human rights of all women in South Africa, particularly
women who suffer many intersecting forms of disadvantage
and
discrimination, and in so doing wish to contribute and help with the
redress of systematic discrimination and disadvantage
against them.
[19]
It was further contended that women affected by the non-recognition
of Muslim marriages are especially vulnerable and marginalised
compared to those married according to civil or customary law, as the
Muslim women have to turn to religious leaders to adjudicate
on their
marital issues which, according to Ms Samaai, normally favours the
men. In the absence of proper legislation to recognise
Muslim
marriages and its proprietary consequences, the women falling in this
category ordinarily suffer hardship in a multiplicity
of ways.
Reference was also made to other reported matters where WLC was
involved to advance and protect the rights of women in
monogamous and
polygynous Muslim marriages. To this end, reliance was placed on
decided cases where the definition of ‘surviving
spouse’
was extended to include women in monogamous and polygynous Muslim
marriages to be entitled to maintenance under the
Maintenance of
Surviving Spouses Act 27 of 1990
(
Daniels
v Campbell NO and Others
[2004] ZACC 14
;
2004 (5) SA 331
(CC)) or to inherit in terms of the Intestate Succession Act 81 of
1987 (see
Hassam v Jacobs NO and Others
2009 (5) SA 572
(CC)).
[20]
The WLC, in short, supported the relief sought by the Applicants.
The
Wills Act
>:
[21]
The starting point in this matter must be the relevant parts of
s 2C
of the
Wills Act which
provides as follows:
“
2C
Surviving spouse and descendants of certain persons entitled to
benefits in terms of will
(1) If any
descendant of a testator, excluding a minor or a mentally ill
descendant, who, together with the surviving spouse of
the testator,
is entitled to a benefit in terms of a will renounces his right to
receive such benefit, such benefit shall vest
in the surviving
spouse.
(2) If a
descendant of the testator, whether as a member of a class or
otherwise, would have been entitled to a benefit in terms
of the
provisions of a will if he had been alive at the time of death of the
testator, or had not been disqualified from inheriting,
or had not
after the testator’s death renounced his right to receive such
a benefit, the descendants of that descendant shall,
subject to the
provisions of subsection (1), per stirpes be entitled to the benefit,
unless the context of the will otherwise indicates.”
[22]
The
Wills Act is
silent with regard to the definition of ‘survivor’
or any variation thereof when used in relation to ‘spouse’.
Consequently, the
Wills Act gives
no express indication that its
references to ‘spouse’ are intended to refer only to
husbands and wives in a marriage
formalised by the Marriage Act 25 of
1961,
Recognition of Customary Marriages Act 120 of 1998
, or
Civil
Union Act 17 of 2006
.
[23]
In fact, the
Wills Act commenced
on 1 January 1954.
Section 2C
thereof was enacted, with effect from 1 October 1992, by the Law of
Succession Amendment Act, 43 of 1992. Thus, section 2C dates
back to
the pre-constitutional era, whereby the concept marriage, and by
extension ‘spouse’, could only have been informed
by the
common law definition that was based on monogamy. In this regard see
Seedat’s Executors v The Master
(Natal)
1917 AD 302
;
Ismail v
Ismail
1983 (1) SA 1006
(A). The
Recognition
of Customary Marriages Act and
Civil Union Act were
clearly not in
existence when
s 2C(1)
was enacted. It is therefore evident that
Parliament did not intend to encompass within the radar of this term
either a surviving
husband and or wife of a marriage concluded under
Islamic Law, where there are multiple surviving spouses.
[24]
Accordingly, the view expressed by the Twelfth Respondent that the
term ‘surviving spouse’ to whom the Legislature
sought to
afford any benefit under
section 2C(1)
refers to a husband and or
wife in a monogamous civil marriage as no provision was made for the
inclusion therein for persons married
in a Muslim polygynous
marriage, cannot entirely be disregarded.
The
issues:
[25]
The question now is whether the exclusion of spouses in polygynous
marriages as envisage by
s 2C(1)
and enforced by the Twelfth
Respondent, violates the equality provision as contemplated in
s 9 of the Constitution.
[26]
Our Constitutional Court has in the past on numerous occasions dealt
with the challenges to legislative enactments that said
to have
infringed the right to equality under s 9 of the Constitution. The
result is a body of jurisprudence that has developed
into a
comprehensive set of principles. In this regard see
Hassam
supra
at para [22] and the
cases referred to therein. In
Minister of
Finance and Another v Van Heerden
[2004] ZACC 3
;
2004 (6) SA
121
(CC) at para 27, Moseneke J as he then was, detailed the duty on
every court when embarking on analysis in terms of s 9 of the
Constitution. He stated that it is- ‘
incumbent
on courts to scrutinise in each equality claim the situation of the
complainants in society; their history and vulnerability;
the
history, nature and purpose of the discriminatory practice and
whether it ameliorates or adds to group disadvantage in real
life
context, in order to determine its fairness or otherwise in the light
of the values of our Constitution’.
[27]
The Third Applicant challenges the constitutionality of the narrow
interpretation of ‘surviving spouse’ applied
by the
Twelfth Respondent on the basis that it violates her fundamental
rights to inter alia equality and dignity in the Constitution.
The
relevant provisions of section 9 read as follows:
‘
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative
and
other measures designed to protect or advance persons, or categories
of persons, disadvantaged by unfair discrimination may
be taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender,
sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language and birth.
(4)
No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3).
[…]
(5)
Discrimination on one or more of the grounds listed in subsection (3)
is unfair unless it is established that the discrimination
is fair.’
[28]
The term ‘surviving spouse’ in s 2C(1) in no uncertain
terms differentiates between a surviving spouse married
in
terms of the Marriage Act and those surviving spouse(s) married in
terms of Islamic Law. Whereas
s
2C(1) confers benefits on the former group, it does not for the
latter. Section 2C(1) also differentiates between a surviving
spouse
in monogamous civil marriages and those in polygynous Muslim
marriages. The former group falls in the net of s 2C(1), the
latter
not. To the extent that s 2C(1) confers benefits on surviving spouses
in polygamous customary marriages by reason of the
Recognition of
Customary Marriages Act, s
2C(1) also differentiates between
surviving spouses in polygamous customary unions and those in
polygynous Muslim marriages. Whereas
the former group is covered by
s
2C(1)
, the latter is not.
[29]
It is now accepted in our constitutional dispensation that not every
instance of differentiation is tantamount to discrimination.
In this
regard see
Hassam
supra
para [23]. However, in casu there can be no doubt that
the differentiation mentioned above amounts to unfair discrimination
that
is in breached of s 9(3) of the Constitution.
[30]
The issue now is whether the differentiation mentioned above bears a
rational connection to a legitimate government purpose
or not. In the
present instance no such connection exists. The differentiation
exists simply because at the time s 2C(1) was enacted,
polygynous
unions solemnised under the tenets of the Muslim faith was void on
the grounds of it being contrary to accepted norms
and customs
prevailing at the time. This approached is no longer accepted and
sustainable in our society that is based on democratic
values, social
justice and fundamental human rights as enshrined in our
Constitution. In this regard see
Daniels
supra
at para [54].
[31]
The facts
in casu
in
no uncertain terms demonstrate that s 2C(1) is unfairly
discriminatory in nature and or effect. It includes the Second
Applicant
by reason only that she is married in a civil union and
excludes the Third Applicant because she is married by Islamic Law.
Moreover,
it includes within its ambit widows and widowers in a
monogamous civil marriage and excludes any surviving spouse from a
polygynous
Muslim marriage (such as the Third Applicant) and it may
also be interpreted to include within its ambit spouses in a lawful
and
legally recognised polygamous customary marriage, but excludes
women in a polygynous Muslim marriage.
[32]
In my view there is no doubt that the Third Applicant is directly
discriminated against, premised upon her religion and marital
status
and in the present context s 2C(1) is withholding benefits from a
certain group of persons, namely, those woman in polygynous
Muslim
marriages.
[33]
It follows that the exclusion of widows in polygynous Muslim
marriages from the protection of s 2C(1) is constitutionally
unacceptable and unjust as the provision affords a widow in a civil
monogamous marriage some benefits but deny the same to a widow
in a
Muslim polygynous marriage.
[34]
In
Hassam
supra
at para [48], the court held that ‘
the
constitutional values of equality, tolerance and respect for
diversity point strongly in favour of giving the word ‘spouse’
a broad and inclusive construction’
.
This dictum is apposite in the present instance. To read the words
‘surviving spouse’ so as to include multiple spouses
in a
polygynous marriage would be a significant departure from the
ordinary common meaning of the words as used in the
Wills Act and
understood by the Twelfth Respondent. Moreover, it would bring
about parity and equal treatment of polygynous marriages under
our
law and will ensure that the same benefit and protection is accorded
to women married to the same husband in polygynous marriages
under
Islamic Law.
[35]
The words ‘surviving spouse’ as it is currently used in
the
Wills Act is
not capable of being understood to include more than
one spouse to a Muslim marriage and it follows that words needs to be
read
in order to cure the defect. The constitutional defect in
s
2C(1)
is manifest and constitutes an unjustifiable infringement of s
9(3) of the Constitution.
Appropriate
Remedy:
[36]
Section 172 of the Constitution requires a court, when deciding a
constitutional matter within its power, to declare that any
law that
is inconsistent with the Constitution is invalid to the extent of its
inconsistency. It further provides that a court
may make any order
that is just and equitable, including an order limiting the
retrospective effect of the declaration of invalidity
for any period
and on any conditions to allow a competent authority to correct the
defect. It follows that litigants in these matters
be granted
effective relief and that it is undesirable to restrict the relief to
the litigants before a court. (See
Hassam
supra
at para [51] and the
cases referred to therein.)
[37]
The defect, in my view, can only be cured by a reading-in of words
that the term ‘surviving spouse’ in
section 2C(1)
of the
Wills Act
encompasses
in its
meaning not only a surviving spouse in the legal sense but also
every
‘surviving’ husband or wife who was married by Muslim
rites to a deceased testator contemplated by
section 2C(1)
,
irrespective whether such marriage was
de
facto
monogamous or polygynous. This approach
was also adopted in
Hassam
supra
para [57]. It follows that the Applicants are entitled
to the relief sought in their Notice of Motion.
[38]
The Application succeeds with no order as to costs.
[39]
In the result the following order is made:
(a)
In terms of section 172(1)(a) of the Constitution,
section 2C(1)
of the
Wills Act is
declared inconsistent with the
Constitution and invalid only:
(i)
to the extent that, for the purposes of the operation of section
2C(1), the term ‘surviving spouse’ therein does
not
include a husband or wife in a marriage that was solemnised under the
tenets of Islam (Shari’ah); and
(ii)
to the extent that, for the purposes of the operation of section
2C(1), the term ‘surviving spouse’ therein does
not
include
multiple female spouses who were married to a deceased testator under
polygynous Muslim marriages.
(b)
In terms of section 172(1)(b) of the Constitution, it is
just and equitable to read
section 2C(1)
of the
Wills Act as
including the underlined (words):
‘
If
any descendants of a testator, excluding a minor or a mentally ill
descendant, who, together with the surviving spouse of the
testator,
is entitled to a benefit in terms of a will renounces his right to
receive such benefit, such benefit shall vest in the
surviving
spouse.
For
purposes of this sub-section, a ‘surviving spouse’
includes every husband and wife of a
de
facto
monogamous
and polygynous Muslim marriage solemnised under the religion of
Islam.’
(c)
The Twelfth Respondent’s decision that the Third
Applicant is not a ‘surviving spouse’ of the late Osman
Harnekar
for purposes of receiving benefits under
section 2C
(1) of
the
Wills Act falls
to be reviewed and set aside.
(d)
The Third Applicant is declared a ‘surviving
spouse’ of the late Osman Harnekar in whom benefits vest under
section 2C(1)
of the
Wills Act.
(e
)
The Registrar of Deeds, Cape Town is directed to
r
egister transfer of ERF [...]
Cape Town from estate of the late Osman Harnekar into the joint names
of Second Applicant and Third
Applicant.
(f)
None of the Orders granted
herein
shall affect the validity of any act performed in respect of the
administration of a testate estate that has been finally
wound up
under the
Administration of Estates Act 66 of 1965
or any other
similar statute by the date of this order.
(g)
The orders in paragraphs (a) –
(f) are suspended pending the confirmation thereof by the
Constitutional Court in terms
of
s 15(1)(a)
of the
Superior
Courts Act, 10 of 2013
.
_______________________
LE
GRANGE, J