Hassam v Jacobs NO and Others (5704/2004) [2008] ZAWCHC 37; [2008] 4 All SA 350 (C) (18 July 2008)

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[2008] ZAWCHC 37
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Hassam v Jacobs NO and Others (5704/2004) [2008] ZAWCHC 37; [2008] 4 All SA 350 (C) (18 July 2008)

IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO:
5704/2004
In the matter between:
FATIMA GABIE
HASSAM
Applicant
And
JOHAN HERMANUS JACOBS
N.O.
1
st
Respondent
MASTER OF THE HIGH
COURT
2
nd
Respondent
MIRIAM
HASSAM
3
rd
Respondent
MIRIAM HASSAM
N.O.
4
th
Respondent
MINISTER OF JUSTICE
AND
CONSTITUTIONAL
DEVELOPMENT
5
th
Respondent
WOMEN’S LEGAL CENTRE
TRUST
Amicus Curiae
JUDGMENT:
18/07/008
VAN
REENEN, J:
1]
The primary issue in this matter is whether upon the death of their
husband the surviving spouses of a
polygynous marriage contracted in
accordance with Muslim private law are entitled to the benefits
envisioned by the Intestate Succession
Act 81 of 1987  (the ISA)
namely, what in effect is a widow’s portion on intestacy and the
Maintenance of Surviving Spouses
Act 27 of 1990  (the MSSA)
namely, a claim for reasonable maintenance.
2]
That issue arose in the circumstances that are briefly set out
hereunder.  The applicant and Ebrahim
Hassan  (the
deceased) entered into a marriage in accordance with Muslim private
law on 3 December 1972.  On 13 February
1990 the deceased
acquired an immovable property situate at 2 Heron Street, Pelican
Park, Cape Town  (the property).  The
property served as
the matrimonial home of the applicant and the deceased, as well as
their children, all of whom have by now reached
the age of majority.
The applicant on or about 16 June 1998 obtained a “faskh” which
would have brought about a termination of
the marriage upon
completion of  “Iddah”  i.e. a  separation period
of three months.  The applicant avers
that the  “faskh”
became ineffectual because the deceased rejected it by tearing up the
document evidencing it when presented
to him and that she and the
deceased became reconciled when he, during the waiting period, took
her on a trip to India.  The
applicant and the deceased
continued to live together as husband and wife until his death on 22
August 2001 save for a period after
his marriage during 2000 to
Miriam Hassan  (the third respondent), also in accordance with
Muslim private law.  Three minor
children fathered by the
deceased were born to the third respondent:  two prior to and
one subsequent to their marriage.
3]
As the deceased’s family refused to give effect to an agreement
relating to the division of the deceased’s
estate, the third
respondent with the help of the Women’s Legal Centre Trust, which
was admitted as an amicus curiae to these proceedings
on 12 April
2005, procured the appointment of Mr Johan Jacobs  (the first
respondent herein) as executor to the deceased’s
estate.
Subsequent to his appointment the applicant submitted two claims to
the first respondent in terms of the ISA and the
MSSA.  The
first respondent refused to recognise such claims on the basis, inter
alia, that even if it is accepted that the
applicant’s marriage to
the deceased continued until his death, it was polygynous and that
she for that reason could not be treated
as a  “survivor” or
a  “spouse” for the purposes of the ISA or the MSSA
(hereinafter collectively referred
to as  “the two acts”).
A subsequently submitted claim for the value of physical improvements
the applicant allegedly
made to the property was rejected on the
ground of prescription.  That claim has not been pursued in
these proceedings.
4]
The applicant instituted proceedings in this court and  in terms
of an amended notice of motion claims
an order declaring that she is
the spouse of the deceased as well as an order that the provisions of
the ISA and the MSSA fall to
be so interpreted that surviving spouses
of polygynous Muslim marriages are accorded the same benefits as
those enjoyed by surviving
spouses of de facto monogamous Muslim
marriages alternatively, an order that the provisions of the said
acts be declared unconstitutional
and be remedied.
5]
The first respondent, who abides the decision of the court, has filed
an affidavit in which he questions
whether the marriage between the
applicant and the deceased was extant at the time of the latter’s
death.  He however, failed
to provide any evidence in refutation
of any of the facts on which the applicant based her contention that
the marriage had not come
to an end.  The veracity of such
factual averments have not been placed in issue by any of the other
respondents.  The
failure to have done so is unsurprising as it
is unlikely that the circumstances surrounding the deceased’s
rejection of the “faskh”
would have manifested themselves
publicly.
6]
In the circumstances both Ms Carter  -  who represented the
applicant  -  and Mr Budlender
-  who
represented the amicus  -  were in agreement that as
regards the factual averments made by the applicant concerning
her
marriage to the deceased, no material disputes of fact of the nature
enumerated by Murray AJP in
Room Hire Co  (Pty) Ltd
v  Jeppe Street Mansions (Pty) Ltd
1949(3) SA 1155 (T)
at 1163 and would necessitate invoking the rule enunciated in
Plascon
Evans Paints Ltd  v  Van Riebeeck Paints (Pty) Ltd
1984(3)
SA 623  (A) at 634 H – I  (if appropriate (see:
Bhe
and Others  v  Magistrate, Khayelitsha & Others
(Commission for Gender Equality
(as amicus curiae)
2005(1) SA 580  (CC) at paragraph 13)) or the provisions of Rule
6(5)(g), were present on the
papers.
7]
Due to the inaccessibility of the facts which could have served as a
basis for challenging the applicant’s
said factual averments and
because one is furthermore dealing with claims against a deceased
estate there, in my view, is a need
to subject the applicant’s
averments to  “cautious scrutiny”  (See:
Borcherds  v  Estate Naidoo
1955(3) SA 78
(A) at 79 A – B;  79 F;
Cassel and Benedick NNO and
Another  v  Rheeder and Cohen NNO and Cohen NNO and
Another
1991(2) SA 846  (A) at 851 E – I) but always
bearing in mind that the unavailability of evidential material in
respect
of a particular issue does not affect the burden or standard
of proof but only the quantum of evidence required to be adduced in
order  to satisfy it  (See:
CWH Schmidt & H.
Rademeyer:  Law of Evidence
at 3 – 28).  The
applicant’s version as regards the non-adherence to the waiting
period and its consequences is not only
free of internal
contradictions and inconsistencies but there furthermore, is nothing
to even suggest that it is improbable.
Caution, if required, is
generally met by the presence of features that engender confidence in
the trustworthiness of evidence
(See:
Lawsa,
2
nd
Edition, Volume 9 paragraph 829).  The applicants’ concerns
about possibly jeopardising the interests of the third respondent
and
her minor children by having tailored the relief originally sought by
her so as to obviate doing so, in my view, goes a long
way towards
engendering belief in the trustworthiness of her evidence.
8]
In view of the above, I incline to the view that the applicant has
succeeded in proving, on a balance of
probabilities, that her
marriage to the deceased was extant as at the time of his death.
That conclusion coupled with the fact
that it is common cause that
also the third respondent was married to the deceased, has as an
ineluctable consequence that the applicant’s
marriage to him was
polygynous and distinguishes this matter from
Daniels
v  Campbell NO and Others
2004(5) SA 331  (CC) in
which the provisions of the ISA and the MSSA were so interpreted as
to include a spouse to a de
facto monogamous Muslim marriage within
their ambit.  The court in that case specifically refrained from
extending the operation
of the two acts to polygynous Muslim
marriages:  not because of any principial considerations but
merely because the issues
for decision had been so delineated on the
papers and in counsels’ argument.
9]
Prior to the advent of the present constitutional era, South African
courts, apart from certain statutory
exceptions, consistently refused
to recognise and give effect to polygynous marriages because they, on
public policy grounds, were
considered to be contra bonos mores
(See eg:
Ismail  v  Ismail
1983(1) SA
1006  (A) at 1024 E).  That approach was attributable to
the fact that the institution of polygyny was
viewed through the
prism of the common law and the mores of a politically dominant but a
minority section of our society.  As
the founding values of the
Constitution take precedence  (Cf:
Ryland  v
Edros
1997(2) SA 690  (C) at 705 C – D) the earlier
pronouncements of the then highest court of the land regarding the
validity
of marriages contracted in accordance with Muslim private
law, do not preclude this court from considering the narrower issue
that
features in this application namely whether, on a proper
construction thereof, the benefits provided for by the ISA and the
MSSA
accrue also to the surving spouses of polygynous Muslim
marriages.
10]
Section 1(1)(c) of the ISA provides that if a deceased is survived by
a spouse and any descendants, such a spouse
is entitled to inherit a
child’s share of the intestate estate or an amount of R125 000
whichever is the greater.  Section
1(4)(f) provides that a
child’s portion shall be calculated  “by dividing the
monetary value of the estate by a number equal
to the number of
children of the deceased who have either survived him or have died
before him but are survived by their descendants,
plus one”.
Section 1(5) provides that if any descendant other than a mentally
ill minor, renounces the right to such benefit
it shall accrue to the
surviving spouse.
11]
Section 2(1) of the MSSA provides that a surviving spouse in a
marriage dissolved by death has a claim against the
estate of the
deceased spouse for reasonable maintenance until death or remarriage
in so far as such a spouse is not able to provide
therefor from his
or her own means.  In terms of the provisions of section
2(3)(b), such a claim enjoys the same order of preference
in respect
of other claims against the deceased spouse’s estate as the
maintenance claim of a dependant child and that where such
claims
compete with each other, they stand to be reduced proportionately.
12]
The majority judgment in the
Daniels
case (at paragraphs 22
and 23), held that as men in our predominantly patriarchial society
find it easier to earn a living and acquire
assets and widows for
whom no provision have been made by will or other settlements do not
enjoy protection under the common law,
the purpose of the ISA and the
MSSA  -  despite the gender neutrality of their provisions
-  is to provide relief
to a particularly vulnerable section of
our society namely, widows with a view to obviating  “their
bereavement being compounded
by dependence and potential
homelessness”.  Sachs J, writing for the majority, articulated
the purpose and objective of the
two Acts as follows:
“
The acts were introduced to
guarantee what was in effect a widow’s portion on intestacy as well
as a claim against the estate for
maintenance.  The objective of
the acts was to ensure that widows would receive at least a child’s
share instead of their
being precariously dependent of family
benevolence”.
The
court, construing the concept  “spouse” in a manner
consistent with the foundational constitutional values of human
dignity,
equality and freedom, held that there was no reason for
declining to apply the equitable principles underlying the ISA and
the MSSA
as tellingly in the case of Muslim widows as they would to
widows of marriages solemnised under the Marriage Act 25 of 1961
because
if they were not, their manifest purpose would be frustrated
rather than furthered.  In the context of a de facto monogamous
marriage contracted under Muslim private law, the court came to the
conclusion that the concepts  “spouse” in the ISA and
“survivor” in MSSA included a surviving partner but deliberately
declined to deal with  “the complex range of questions
concerning polygamous Muslim Marriages”.
13]
Does an interpretation which fails to accord  widows in
polygynous Muslim marriages the benefits provided for
in the ISA and
the MSSA by excluding them from the concepts  “spouse” and
“survivor” respectively pass constitutional
muster?  Despite
the fact that the matter has not been crisply decided as yet, it in
my view does not.  I say so for the
reasons which are set out
hereunder.
14]
In terms of section 39(2) of the Constitution a court, when
interpreting legislation and developing the common- or
customary law,
is obliged to promote the spirit, purport and objects of the Bill of
Rights as constituting the corner-stone of our
constitutional
democracy and, where possible, in a manner that gives effect to the
fundamental values therein contained  (See:
Investigating
Directorate:  Serious Economic Offences and Others  v
Hyundai Motor Distributors  (Pty) Ltd and
Others:  In re
Hyundai Motor Distributors  (Pty) Ltd and Others  v
Smit NO and Others
2001(1) SA 545  (CC) at 558 G –
H).  It furthermore is a recognised principle of constitutional
interpretation
that if it is reasonably possible to construe a
statute in such a manner that an inconsistency with the Constitution
is avoided  preference
should be given thereto rather than
another reasonable construction that would result in an
inconsistency.  In that context
a construction lacks
reasonableness if it can be arrived at only by straining the meaning
of the words of the particular enactment
(See:
National
Coalition for Gay and Lesbian Equality and Others  v
Minister of Home Affairs and Others
2006(2) SA 1  (CC)
at paragraph 23).  In a nutshell:  legislation now falls be
construed in a manner consistent
with the foundational values of
human dignity, equality and freedom as encapsulated in the Bill of
Rights.
15]
As has been already observed, the majority of the court in the
Daniels
case came to the conclusion that the ordinary meaning
of the concepts  “spouse” in the ISA and  “survivor”
the MSSA
are sufficiently wide to encompass also surving spouses of
marriages contracted according to Muslim private law.  It opted
for
a wide and inclusive construction which extended the application
of the provisions of the said acts to also the surviving spouse
of a
monogamous Muslim marriage as their object and purpose are fully
inconsistent therewith and any other interpretation would result
in a
violation of such widows’ rights to equality as regards marital
status, religion and culture and would furthermore compromise
their
right to dignity.
16]
The applicant in this matter would be entitled to the relief claimed
only if it could be found that the concepts
“spouse” in the
ISA and “survivor” in the MSSA encompass also the widows of
polygynous Muslim marriages and not only a widow
of such a de facto
monogamous marriage.
Marriages
concluded under Muslim private law are potentially polygynous as the
male in such a union, subject to compliance with the
onerous
prescripts of the Qur’an, is permitted to marry more than one
woman.  Unless the concept  “spouse” and
“survivor” are construed to encompass also widows of polygynous
Muslim marriages the practical effect would be that the widows
of
such marriages will be discriminated against solely because of the
exercise by their deceased husbands of the right accorded them
by the
tenets of a major faith to marry more than one woman.  Such
discrimination would not only amount to a violation of their
rights
to equality on the basis of marital status, religion  (it being
an aspect of a system of religious personal law) and
culture but
would also infringe their right to dignity.  In terms of section
9(5) of the Constitution discrimination of that
kind is presumptively
unfair unless valid grounds exist under Section 36 of the
Constitution for limiting their rights as regards
equality and human
dignity.  It is not insignificant that the Minister of Justice
and Constitutional Development  (the
fifth respondent) has not
even suggested that any such grounds exist:  neither has any of
the other parties to these proceedings.
Furthermore, no
governmental purpose that could be advanced by such a differentiation
has been raised or appears to be self-evident.
17]
There in my view, does not appear to be any justification for
excluding the widows of polygynous Muslim marriages
from the
provisions of the ISA or the MSSA.  Not only do the
considerations which in the context of de facto monogamous Muslim
marriages prompted the Constitutional Court in the
Daniels
case to opt for an extensive interpretation of the concepts
“spouse” and  “survivor” apply with equal force to
widows in polygynous Muslim marriages, but polygyny as practiced in
African customary law as well as in Muslim personal law, has
received
increasing legislative and judicial recognition in our constitutional
democracy.  It is unsurprising that it has come
about as
-  unlike in our pre-constitutional past  -  the
content of public policy must now be determined with
reference to the
founding values underlying our constitutional democracy including
human dignity and equality  (See:
Barkhuizen  v
Napier
2007(5) SA 323  (CC) at paragraphs 28 and 29).
Such values have been described by Sach J in the
Daniels
case
(at 344 G) as the source of a  “new ethos of tolerance,
pluralism and religious freedom” that presently informs
the
assessment of the prevailing boni mores of society in contrast to the
rigidly exclusive approach, of the pre-constitutional era
which was
based on the values and beliefs of a limited sector of society as was
manifested in the
Ismail
case.
18]
In the context of polygynous marriages the shift in legislative and
judicial policy, as a reflection of public policy,
has manifested
itself in a number of ways.  Firstly, the legislature has given
explicit recognition thereto by the enactment
of the
Recognition of
Customary Marriages Act 120 of 1998
.  Secondly, the legislature
has implicitly recognised it in a number of statutes which define,
without any qualification, marriage
to include Muslim marriages
(See:  the
Daniels
case at paragraph 27 footnote 40).
Thirdly, the South African Law Commission has given recognition to
polygynous Muslim marriages
in its report on Islamic Marriages and
Related Matters.  Fourthly, African customary law, which
recognises polygamy, is now
given its rightful recognition as an
integral part of South-African law to the extent that its rules and
principles are compatible
with the Constitution and the Bill of
Rights  (See:  the
Bhe
(case) at paragraphs 43 to
46).  Finally, as appears from a number of decided cases, it is
now judicial policy to give recognition
to polygynous marriages and
their legal consequences  (See:
Kahn  v
Kahn
2005(2) SA 272  (T) where it was held that
parties to a Muslim marriage, irrespective of whether it is
polygynous or monogamous,
are entitled to claim maintenance in terms
of section 2(1) of Act 99 of 1998;
Wormald N.O. and Others
v  Kambule
2006(3) SA 562  (SCA) in which the
right of the surviving spouse of a polygynous customary union to be
maintained and
provided with residential and agricultural land
(but without any right to title therein) was recognised; and
Gaza  v  Road Accident Fund
(unreported
Supreme Court of Appeal Case No 579/2001) in which, by consent, an
order was made the effect whereof is to recognise
an actionable duty
of support by a customary law wife despite the existence of a prior
valid civil law marriage).
(The
above examples do not purport to constitute a closed list).
19]
I, in view of the aforegoing incline to the view that the continued
exclusion of the widows of polygynous Muslim marriages
from the
benefits of the ISA and the MSSA would be unfairly discriminatory
against them and be in conflict with the provisions of
section 9 of
the constitution.
20]
The provisions of the ISA, save for section 1(4)(f), are readily
capable of being applied to spouses in polygynous
marriages in that
each spouse would be entitled to a child’s portion of the estate,
if there are descendants and an equal share
if there are none.
It is for that reason that the Constitutional Court in
Bhe’s
case could, in the context of a polygynous customary law union, use
it as the basic mechanism for determining the content of an interim
regime.   Section 1(4)(f) which provides that a child’s
portion is to be arrived at by dividing the monetary value of
the
estate by a number equal to the number of surviving children of the
deceased as well as children that have predeceased him and
have left
descendants, from a linguistic perspective, presents interpretive
difficulties.  The submission that such difficulties
could be
overcome by interpreting the words  “plus one” as conveying
‘plus one for each spouse”, in my view, places
an intolerable
strain on the language used with the consequence that it, to that
extent, is inconsistent with the constitution and
warrants the
reading in of words in order to remedy its unconstitutionality.
21]
The concept  “survivor” is in the MSSA defined as meaning
the surviving spouse in a marriage dissolved by
death and every
reference to it is preceded by the definite article  “the”
which lends support to an inference that the
singular was envisaged.
However, if regard is had thereto, firstly, that section 6 of the
Interpretation Act 33 of 1957 provides
that in every law, unless the
contrary intention appears, words in the singular number include the
plural;  and secondly, that
the mechanisms created in sections
2(3)(b) and 3 of the MSSA in order to determine how the competing
claims of spouses and minor
children are to be dealt with as well as
the factors to be considered in the determination of the reasonable
maintenance needs of
a spouse, the concept  “survivor”,
irrespective of the number of surviving spouses, is capable of being
applied without
unduly straining the language of the act.  In
fact, the provisions of the MSSA have already been held to be capable
of being
applied to multiple surviving spouses, albeit in the context
of polygynous customary law marriages  (See:
Kambule
v  The Master and Others
2007(3) SA 403  (E) at
414 B – F).
22]
In view of the aforegoing, I incline to the view that the applicant
has succeeded in making out a case for the relief
in the amended
notice of motion.  In arriving at that conclusion I have not
lost sight of the fact that, although the constitutional
validity of
polygamy has not been subjected to judicial scrutiny as yet
(See:  the
Bhe
case at paragraph 124), it is in conflict
with certain international human rights instruments  (See:
Article 16 of the
Convention on the Elimination of All Forms of
Discrimination Against Women) but that Article 6 of the Protocol to
the African Charter
on Human and People’s Rights on the Rights of
Women in Africa, whilst contemplating the encouragement of monogamy,
provides for
the promotion and protection of the rights of women in
polygynous marital relationships.
23]
In the premises the following order is made:
23.1]
It is declared that –
23.1.1]
the word  “survivor” as used in the Maintenance of Surviving
Spouses Act 27 of 1990, includes
a surviving partner to a polygamous
Muslim marriage;
23.1.2]
Fatima Gabrie Hassam is, for the purpose of the Maintenance of
Surviving Spouses Act 27 of 1990, a
“survivor” of the late
Ebrahim Hassam;
23.1.3]
Miriam Hassasm is, for the purpose of the Maintenance of Surviving
Spouses Act 27 of 1990, a “survivor”
of the late Ebrahim
Hassam;
23.1.4]
the word  “spouse” as used in the
Intestate Succession Act
81 of 1987
, includes a surviving partner to a polygamous Muslim
marriage;
23.1.5]
Fatima Gabrie Hassam is, for the purpose of the
Intestate Succession
Act 81 of 1987
, a  “spouse” of the late Ebrahim Hassam;
23.1.6]
Miriam Hassam is, for the purpose of the
Intestate Succession Act 81
of 1987
, a  “spouse” of the late Ebrahim Hassam.
23.2]
It is declared that
section 1(4)(f)
of the
Intestate Succession Act
81 of 1987
is inconsistent with the Constitution, to the extent that
it makes provision for only one spouse in a Muslim marriage to be an
heir
in the intestate estate of their  deceased husband.
23.3]
Section 1(4)(f)
of the
Intestate Succession Act 81 of 1987
is to be
read as though the whole of it was substituted by the following:
“
In the application of
sections
1(1)(c)(i)
to the estate of a deceased person who is survived by more
than one spouse:
A child’s share in relation to the
intestate estate of the deceased, shall be calculated by dividing
the monetary value of the
estate by a number equal to the number of
the children of the deceased who have either survived or predeceased
such deceased person
but are survived by their descendants, plus the
number of spouses who have survived such deceased;
Each surviving spouse shall inherit a
child’s share of the intestate estate or so much of the intestate
estate as does not exceed
in value the amount fixed from time to
time by the Minister for Justice and Constitutional Development by
notice in the Gazette,
whichever is the greater;  and
Notwithstanding the provisions of
sub-para (b) above, where the assets in the estate are not
sufficient to provide each spouse with
the amount fixed by the
Minister, the estate shall be equally divided between the surviving
spouses.”
23.4]
The orders in paragraphs 23.2 and 23.3 hereof are referred to the
Constitutional Court
for confirmation.
23.5]
The Estate of the late Ebrahim Hassam is to pay the cost of this
application.
24]
The amicus is thanked for the helpful contribution it has made to the
resolution of this matter.
_______________
D.
VAN REENEN