Daniels v Campbell N.O and Others (1646/01) [2003] ZAWCHC 25; [2003] 3 All SA 139 (C) (24 June 2003)

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[2003] ZAWCHC 25
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Daniels v Campbell N.O and Others (1646/01) [2003] ZAWCHC 25; [2003] 3 All SA 139 (C); 2003 (9) BCLR 969 (C) (24 June 2003)

IN THE HIGH COURT OF
SOUTH AFRICA
REPORTABLE
(CAPE OF GOOD
HOPE PROVINCIAL DIVISION)
CASE NO. 1646/01
In the matter
between:
JULEIGA
DANIELS
Applicant
and
ROBIN
GRIEVE CAMPBELL N.O.
First Respondent
MELISSA
FOURIE N.O.
Second Respondent
SORAYA
DANIELS
Third Respondent
ADELAH
JAKOET
Fourth Respondent
SHAHIEDA
MANUEL
Fifth Respondent
MOGAMAT
SHARIEF MANUEL
Sixth Respondent
SARAH
DANIELS
Seventh Respondent
MINISTER
OF JUSTICE
Eighth Respondent
REGISTRAR
OF DEEDS
Ninth Respondent
MASTER OF
THE HIGH COURT
Tenth Respondent
________________________________________________________________
JUDGMENT
DELIVERED : 24 JUNE 2003
________________________________________________________________
VAN
HEERDEN J:
Introduction
In terms
of the
Intestate Succession Act 81 of 1987
, the surviving ‘
spouse
’
of a deceased person has the right to inherit from the intestate
deceased estate, in accordance with certain rules governing the
order
of intestate succession set out in some detail in
section 1
of the
Act. The Maintenance of Surviving Spouses Act 27 of 1990, in turn,
provides that when a ‘
marriage
’ is dissolved by death
after the commencement of the Act (on 1 July 1990), the ‘
survivor
’
(ie the surviving ‘
spouse
’ has a claim for maintenance
against the estate of the deceased ‘
spouse
’ in certain
circumstances. Neither Act contains a definition of the word
‘
spouse
’ – in essence, the meaning to be given to the
word ‘
spouse
’ in each of these Acts is what lies at the
heart of this case.
On 27
November 1994, Mogamat Amien Daniels (‘
the deceased
’) died
intestate. The main asset in his deceased estate is a house situate
at 2A Athon Walk, Lucerne Place, Hanover Park, Western
Cape (‘
the
property
’). The applicant and the deceased were married in
accordance with Muslim rites on 2 March 1977. The marriage, which
was at all
times monogamous, was not solemnized by a marriage officer
appointed in terms of the Marriage Act 25 of 1961. No children were
born
of this marriage. Throughout his marriage to the applicant (and
indeed until his death), the deceased lived with the applicant in
the
property, and the applicant still lives there.
The property
was transferred to the estate of the deceased on 29 July 1998 under
Title Deed No. T 70953/98. On 25 January 2001, the
first respondent
was appointed by the Master of the High Court (the tenth respondent)
as the executor of the estate of the deceased
and, in these
proceedings, the first respondent is cited in his official capacity
as such.
The deceased
was survived by four children, namely two daughters, Shahieda Manuel
and Sarah Daniels (the fifth and seventh respondents,
respectively),
and two sons, Mogamat Sharief Manuel (the sixth respondent) and
Mogamat Cassiem Daniels (‘
M C Daniels
’). M C Daniels died
intestate on 12 June 1999, leaving four children, who are all still
minors. Soraya Daniels (the third respondent)
is the mother and
natural guardian of two of these children, while Adelah Jakoet (the
fourth respondent) is the mother and natural
guardian of the other
two minor children.
On 15 December 2000, the second respondent was
appointed by the tenth respondent, in terms of
section 18(3)
of the
Administration of Estates Act 66 of 1965
, to take control of the
assets in the deceased estate of M C Daniels, to pay the debts, and
to transfer the residue of the estate
to his heirs. The second
respondent is cited in these proceedings in her official capacity as
the
section 18(3)
respresentative of the estate of the late M C
Daniels.
The eighth respondent is the Minister of Justice,
who is cited in these proceedings in his official capacity as the
member of the
National Executive responsible for the administration
of the
Intestate Succession Act and
the Maintenance of Surviving
Spouses Act. The ninth respondent, also cited in his official
capacity, is the Registrar of Deeds.
The applicant
now seeks an order in the following terms:
‘
1. Declaring that the Applicant was, for the purposes of the
Intestate Succession Act, 81 of 1987
, the spouse of Mogamat Amien
Daniels at the time of his death and is an heir in the Estate of the
Late Mogamat Amien Daniels.
In
the alternative to paragraph 1 above
Declaring
that the omission in
Section 1(4)
of the
Intestate Succession Act,
81 of 1987
, of the following definition is unconstitutional and
invalid:
“’
spouse
’” shall include a husband or wife married in
terms of Muslim rites in a
de facto
monogamous union”.
Declaring that
Section 1(4)
of the
Intestate Succession
Act, 81 of 1987
, shall be read as though it included the following
paragraph after paragraph (f):
“(g) ‘
spouse
’ shall include a husband or wife married in
terms of Muslim rites in a
de facto
monogamous union”.
Declaring that the orders in paragraphs 2.1 and 2.2 above
shall have no effect on the validity of any acts performed in
respect
of the administration of an Intestate Estate that had been
finally wound up by the date of this order.
Declaring
that the Applicant is, for purposes of the Maintenance of Surviving
Spouses Act, 27 of 1990, the survivor of Mogamat Amien
Daniels and
is entitled to lodge a claim for maintenance in the Estate of the
Late Mogamat Amien Daniels and to have such claim
determined by the
First Respondent.
In
the alternative to paragraph 3 above
Declaring
that the omission from the definition of
“survivor”
in
Section 1 of the Maintenance of Surviving Spouses Act, 27 of 1990
of the words
“and includes the surviving husband or wife of a
de facto
monogamous union solemnized in accordance with
Muslim rites”
at the end of the existing definition is
unconstitutional and invalid.
4.2 Declaring that the definition of
“survivor”
in
Section 1 of the Maintenance of Surviving Spouses Act, 27 of 1990, is
to be read as if it included the following words after the
words
“dissolved by death”:
“and includes the surviving husband or wife of a
de facto
monogamous union solemnized in accordance with Muslim rites”.
The first and
second respondents are the only respondents opposing this
application.
Factual
background
As
indicated above, the applicant presently resides at the property and
has done so for a very long time. She married one Mogamat
Amien
Wilson (‘
Wilson
’) on
2 February
1969 and, on 7 July 1969, the said Wilson submitted a written
application to the City of Cape Town to rent a council dwelling.
On
15 October 1976, the City of Cape Town allocated a council dwelling
(the abovementioned property) to the applicant. By that
time, the
applicant and Wilson had been divorced from each other, the City of
Cape Town had been apprised of this fact, and the property
was
according allocated to the applicant in her own name. The applicant
and her children took occupation of the property during
October 1976
and she has occupied the property continuously since that time.
When she
married the deceased by Muslim rites on 2 March 1977, the applicant
informed the City of Cape Town of this marriage and furnished
it with
a copy of her marriage certificate. In accordance with its then
applicable housing policy, the City of Cape Town subsequently
transferred the tenancy of the property to the deceased, who was the
principal breadwinner of the family at that time. The transfer
of
tenancy was effected on 17 July 1978.
It would
appear that, under the so-called ‘
National Sales Campaign
’,
tenants of council houses were later given the opportunity to
purchase such houses and, on 24 September 1990, a written instalment
sale agreement was entered into between the City of Cape Town (as
seller) and the deceased (as purchaser), in terms whereof the
deceased
purchased the property from the City of Cape Town for a
purchase price of R3 915.00, less a 10% discount. The applicant also
signed
the Deed of Sale, ostensibly thereby consenting to the
deceased purchasing the property. The Deed of Sale, however,
incorrectly
reflects that the applicant was married to the deceased
in community of property.
Although it
is not possible, on the papers before this Court, to ascertain any
details in this regard, it would appear that the applicant
was
employed for lengthy periods during her marriage to the deceased and
that she contributed substantially towards the household
expenses,
including the rental and later the purchase price of the property and
the service charges levied in respect of the property.
The deceased
died on 27 November 1994 without leaving a will and, on 29 July 1998,
the property was transferred to the ‘
Estate of the late MOGAMAT
AMIEN DANIELS
’. The outstanding balance owing on the purchase
price of the property was written off in terms of ‘
the State
discount
’ when such transfer was registered in the Deeds
Registry.
Some years
prior to the death of the deceased, the late M C Daniels and the
third respondent had erected a shack on the property.
After the
death of the deceased, the applicant’s continued occupancy of the
property was threatened by the late M C Daniels and
the third, fifth,
sixth and seventh respondents. This threat to the applicant’s
continued occupancy of the property and her belief
that she was
entitled to the property, led to the applicant instituting
proceedings in this Court in July 1998 under Case No. 9787/98
(‘
the
1998 application
’), wherein she sought an order,
inter alia
declaring that she was ‘
entitled to all right, title and
interest in and to
’ the property. In the 1998 application, the
late M C Daniels was cited in his personal capacity as the first
respondent and the
Master of High Court (the present tenth
respondent) was cited as the second respondent. While the Master
indicated that he would
abide by the decision of the Court, the 1998
application was opposed by the late M C Daniels. On 10 May 1998, the
said application
was dismissed with costs by Steyn AJ. A full copy
of the papers in the 1998 application, as also a copy of the judgment
and order
of court, are attached to the founding affidavit deposed to
by the applicant in the present application.
Subsequent to
the dismissal of the 1998 application, the tenth respondent indicated
in writing that, as the applicant was married
to the deceased in
terms of Muslim rites only, she is not a surviving spouse for the
purposes of the
Intestate Succession Act and
therefore ‘
does not
stand to inherit
’ from the intestate estate of the deceased.
The tenth respondent stated further that, ‘
in terms of the
Intestate Succession Act the
estate devolves upon the descendants of
the deceased
per stirpes
’. Furthermore, a claim
for maintenance against the estate of the deceased, lodged with the
first respondent on the applicant’s
behalf by her attorneys of
record, was rejected by the first respondent on the grounds that –
‘
In terms of the present legal system, your client, who was
married to the deceased in terms of Muslim rites, is not a surviving
spouse
as contemplated in the Maintenance of Surviving Spouses Act 27
of 1990 and thus is not entitled to maintenance. In terms of this
Act
“the survivor”
means the surviving spouse in a
marriage dissolved by death. Currently, marriages in accordance with
Muslim rites are not considered
valid legal marriages.
’
Having regard
to the answering affidavit filed on behalf of the first and second
respondents in these proceedings, and to the arguments
advanced by Mr
Breitenbach
and Ms
Bawa
, who appeared for the
respondents before me, the issues which arise for determination may
be summarised as follows:
Is
the question whether the applicant can, on constitutional grounds,
inherit from the deceased in terms of the
Intestate Succession Act
res
judicata
or, alternatively, is the applicant estopped
from raising this issue again?
Can
the word ‘
spouse
’, as utilised in the
Intestate
Succession Act and
in the Maintenance of Surviving Spouses Act, be
interpreted to include a person in the position of the applicant,
i.e., a husband
or wife married in terms of Muslim rites in a
de
facto
monogamous union?
If,
on a proper construction of these Acts, a husband or wife married in
accordance with Muslim rites in a
de facto
monogamous union
cannot be regarded as a ‘
spouse
’ for the purposes of the
Intestate Succession Act and
the Maintenance of Surviving Spouses
Act, is the failure to provide for such persons in such Acts
unconstitutional and invalid
and, if so, can such invalidity be
‘
cured
’ by ‘
reading in
’ the provisions
proposed by the applicant?
Res judicata
and issue estoppel
Counsel
for the respondents argued that, on a proper application of the rule
of
res judicata
or, alternatively, of the ‘
doctrine of
issue estoppel
’, the question whether the applicant can, ‘
on
constitutional grounds
’, inherit from the deceased in terms of
the
Intestate Succession Act cannot
be raised in the present
proceedings. According to counsel, in the 1998 application, the
applicant unsuccessfully sought ‘
essentially the same relief
’
on a number of grounds, one of which was ‘
essentially the same
as that now advanced
’.
In accordance
with the rule of
res judicata
, ‘
where a final judgment
has been given in a matter by a competent court, then subsequent
litigation between the same parties, or their
privies, in regard to
the same subject-matter and based upon the same cause of action is
not permissible and, if attempted by one
of them, can be met by the
exceptio rei judicatae vel litis finitae
. The
object of this principle is to prevent the repetition of law suits,
the harassment of a defendant by a multiplicity of actions
and the
possibility of conflicting decisions
’ (per Corbett JA (as he
then was) in
Evins v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 835F-G).
The
requirements for the common law defence of
res judicata
and
the (English-inspired) doctrine of issue estoppel were discussed by
Thring J in the recent case of
Holtzhausen & Another v Gore NO
& Others
2002 (2) SA 141
(C) at 148E-150G. The court set out
the requirements for the defence of
res judicata
, as stated by
the Supreme Court of Appeal in
National Sorghum Breweries Ltd (t/a
Vivo African Breweries) v International Liquor Distributors (Pty) Ltd
[2000] ZASCA 159
;
2001 (2) SA 232
(SCA) at 235I, namely –
‘
(i) dat die twee aksies tussen dieselfde partye aanhangig
gemaak is;
(ii) dat
die skuldoorsaak in beide gedinge dieselfde was, en (iii) dat
dieselfde regshulp in beide aksies gevorder is.’
(See
further in this regard Rabie
‘Estoppel’ in
LAWSA
Volume
9
(first reissue, 1996) paras 421-443 and the cases there
cited.)
The learned
judge pointed that, under the influence of the English doctrine of
issue estoppel, it had been held in several cases -
amongst them
Horowitz v Brock & Others
1988 (2) SA 160
(A),
Kommissaris
van Binnelandse Inkomste v ABSA Bank Bpk
1995 (1) SA 635
(A) and
Bafokeng Tribe v Impala Platinum Ltd & Others
1999 (3) SA
517
(B) - that the second and third requirements mentioned above are
not immutable and can be relaxed in order to ensure overall fairness.
As regards
the doctrine of issue estoppel, Thring J agreed with the description
by Friedman JP in the
Bafokeng Tribe
case (
supra
) of
the requirements of this doctrine and its application in the South
African case law. The relevant passage in the
Bafokeng Tribe
case (at 566F-J) reads as follows:
‘
The doctrine of issue estoppel has the following requirements:
(a) where a court in a final judgment on a cause has determined an
issue involved in the cause of action in a certain way, (b) if the
same issue is again involved, and the right to reclaim depends
on
that issue, the determination in (a) may be advanced as an estoppel
in a later action between the same parties, even if the later
action
is founded on a dissimilar cause of action.
Issue estoppel is a rule of
res judicata
but
is distinguished from the Roman-Dutch Law exception in that in issue
estoppel the requirement that the same subject-matter or
thing must
be claimed in the subsequent action is not required. Issue estoppel
has a twofold requirement.
Issue estoppel has been applied in our law in decisions of
Provincial and Local Divisions. However, in the
Kommissaris
case
supra
the Court accepted that the
expression
“issue estoppel”
had been in use in our law for
a long time, and is a useful description of these cases which do not
strictly conform to the threefold
requirements of
res
judicata
, because the same relief is not claimed on the
same cause of action, but nothwithstanding that the defence may be
successful.
Issue estoppel is also founded on public policy to avoid a
multiplicity of actions in order
“
inter alia
to
conserve the resources of the courts and litigants”.
There is a
tension between a multiplicity of actions and the palpable realities
of injustice. It must be determined on a case by
case foundation
without rigidity and the overriding or paramount consideration being
overall fairness and equity
.’
(See also
Signature Design Workshop CC v Eskom Pension and Provident Fund &
Others
2002 (2) SA 488
(C) at 492H-493I, 497J-498F; Rabie
op
cit
para 444 – 447 and the other authorities there cited.)
A perusal of
the papers before the court in the 1998 application makes it clear
that the applicant’s present cause of action in
respect of the
Intestate Succession Act was
not raised
in any way
in the
affidavits filed. On the contrary, in seeking an order declaring
that she was ‘
entitled to all right, title and interest in and
to
’ the property, the applicant relied on an oral agreement
between her and the deceased in terms of which ‘
indien hy voor
my sou sterwe, … die betrokke onroerende eiendom uitsluitlik myne
sou wees,
’ as well as acknowledgements by the deceased during
his lifetime that ‘
die onroerende eiendom nie syne is nie omdat
hy my en die kinders daarin kom kry het
’. It appears from the
judgment of Steyn AJ that the possibility of an alternative cause of
action, based on constitutional grounds,
was only raised by
applicant’s counsel during the hearing of the application, and that
applicant’s counsel requested that the
matter be postponed so that,
inter alia
, the notice of motion could be amended and
affidavits supplemented to provide for the applicant's proposed
alternative cause of action
(‘
beweerde beoogde alternatiewe
eisoorsaak
’). This application for a postponement was opposed
by counsel representing M C Daniels, the then first respondent, and
was ultimately
refused by Steyn AJ. The relevant parts of the
judgment delivered in the 1998 application read as follows:
‘
Mogamat het intestaat gesterf op 27 November 1994. Volgens
Intestate Erfreg erf sy boedel op sy kinders. (Sien in hierdie
verband
die Wet op Intestate Erfreg, Wet 81 van 1978
[sic –
1987]
en wel artikel 1(1)(b).) Applikant kan nie van Mogamat erf
nie, aangesien daar nie 'n wettige huwelik bestaan het, soos bepaal
deur
Suid-Afrikaanse Huwelikswetgewing nie. Daar was nie aanvanklik
namens applikant aangevoer of in haar beëdigde verklaring beweer
dat
sy geregtig is om te erf van Mogamat nie, maar ek sal later weer na
hierdie aspek verwys.
’
Dealing with
the applicant’s cause of action based on an oral agreement between
her and the deceased in terms of which the applicant
would, upon the
deceased’s death, be the owner of the property, Steyn AJ held that
any such agreement would be null and void for
failure to comply with
the formalities prescribed by
section 2
of the
Alienation of Land Act
68 of 1981
, and then continued:
‘…
Die
applikant kan derhalwe nie steun op hierdie eisoorsaak nie.
Tydens die aanhoor van die aansoek het die advokaat vir die
applikant, mnr
Jethro,
te kenne gegee dat hy ook
op grond van 'n alternatiewe eisoorsaak namens applikant
wil
voortgaan
en dit is naamlik dat sy weens konstitutionele
gronde behoort te erf, soos wat 'n wettige vrou sal erf. In die saak
van
DAVIDS v THE MASTER
193
[sic –
1983]
(1) SA 458
(C) is bepaal dat 'n eggenoot, soos bedoel in
artikel 49(1) van die Boedelwet, 1965 van 1966, nie insluit 'n vrou
getroud volgens
Moslemreg of –gebruik nie. JUNE SINCLAIRE
[sic
– Sinclair]
in haar boek
THE LAW
OF
MARRIAGE IN SOUTH AFRICA
, Volume 1, op 158, 176 en 177 wys
daarop dat 'n huwelik wat gesluit word ingevolge die bepalings van
die Huwelikswet, Wet 25 van
1961, aan wettige eggenote sekere
beskerming en ondersteunende regsmaatreëls verleen. Moslemhuwelike
is 'n intieme verhouding waarna
die volledige reeks van beskermende
huwelikswette nog nie uitgebrei is nie. Sy wys ook daarop dat vroue
wat die beskerming geniet
van die Egskeidingswet en ander
huwelikswetgewing ook soms ernstige finansiële probleme ondervind by
beëindiging van hul huwelike.
Daar word deur mnr
Hack
,
namens die eerste respondent, aangevoer dat vir applikant om te kan
slaag op hierdie grond die Hof revolusionêre nuwe reg sal moet
skep.
Daar is geen gesag dat die Hof al ooit voorheen 'n soortgelyke bevel
gemaak het nie.
Die sake waarna mnr
Jethro
verwys het, is nie
direk van toepassing in die aangeleentheid nie. Ek meld terloops dat
ek verneem dat volgens die bepalings van
Moslemreg, sou die applikant
geregtig gewees het op een-agtste van die oorledene se boedel …
Indien mnr
Jethro
se argument ontleed word, blyk dat
applikant die Hof vra om te beveel dat sy ingevolge die bepalings van
artikel 1(1)(c) van die
Intestate Erfreg, Wet 81 van 1978
[sic
1987]
, kan erf wat in effek dan sal behels dat sy die hele boedel
van die oorledene kan erf. Applikant voer dus aan dat dit
konstitusioneel
sal wees dat haar Moslemhuwelik wettig beskou word en
dat sy erf nie volgens Moslemgebruik en wette nie, maar volgens die
bepalings
van Suid-Afrikaanse Reg.
Ek is van mening dat hierdie Hof nie 'n bevel kan maak, soos wat
mnr
Jethro
beweer
applikant sal vra
nie. Nuwe wetgewing sal deur Parlement uitgereik moet word om
voorsiening te maak vir die wettigheid van huwelike wat nie gesluit
word volgens die streng vereistes wat tans gestel word deur
Suid-Afrikaanse huwelikswetgewing nie. Ek haal ook aan 'n opmerking
van KENTRIDGE, WnR in
DU PLESSIS & OTHERS v DE KLERK &
ANOTHER
[1996] ZACC 10
;
1996 (3) SA 850
(Konstitusionele Hof) bladsy 881C
waar hy sê:
“The
radical amelioration of the common law has hitherto been
a function of Parliament; there is no reason to believe that
Parliament will not continue to exercise that function.”
Hierdie opmerking verskyn in die saak waarna mnr
Jethro
my verwys het, naamlik
MTEMBO
[sic Mthembu]
v LETSALA & ANOTHER
1988
[sic
1998]
(2)
SA 675
(TPD) op 687A.
Applikant het haar aansoek aan die Hof gerig by wyse van
mosieprosedure. Soos te wagte moes gewees het, het daar 'n groot
feitedispuut
tussen die partye ontstaan. Ingevolge die bepalings van
artikel
[sic]
6(5)(g) van die Hooggeregshofreëls het die Hof
'n diskresie om die aansoek te weier of te verwys vir die lei van
mondelinge getuienis
of 'n ander bevel te maak. Mnr
Hack
vra dat die aansoek van applikant van die hand gewys word met koste
en mnr
Jethro
, wat aanvanklik 'n finale bevel
wou hê,
vra tans dat
die
aangeleentheid uitgestel moet word sodat hy in die interim
kan voldoen aan sekere prosedurele vereistes,
sy
Kennisgewing van Mosie kan wysig en beëdigde verklarings kan aanvul
om
voorsiening te maak vir
applikant
se beweerde beoogde alternatiewe eisoorsaak
…
Die vraag wat die Hof moet beoordeel is of die applikant
hoegenaamd
prima facie
'n saak uitgemaak het wat
tans voor die Hof geliasseer is sodat die Hof aan haar die vergunning
kan gee dat die saak wel verder uitgestel
word sodat aan prosedurele
vereistes voldoen kan word en beëdigde verklarings aangevul kan
word. Applikant het geen
prima facie
saak
uitgemaak dat sy geregtig is op die aangevraagde regshulp gebaseer op
'n eisoorsaak van 'n ooreenkoms dat sy die eienaar was
van die
onroerende eiendom nie.
Soos die aansoek tans voor die Hof staan
het sy ook
nie 'n
prima facie
saak uitgemaak dat sy
geregtig is op die regshulp wat sy vra dat sy geregtig is om
intestaat van Mogamat te erf nie. Soos gemeld,
is daar in elk geval
'n feitedispuut op wesentlike aspekte van applikant se saak wat sy
moes voorsien het en het sy ook nie sekere
verpligte prosedurele
stappe geneem om haar saak behoorlik voor die Hof te plaas nie. Die
Hof het 'n diskresie met betrekking tot
die verdere verloop van die
saak. Dit is my mening dat dit onbillik sal wees teenoor die
respondent en teenoor die regbank dat die
saak verder uitgestel word
om applikant 'n geleentheid te bied om 'n saak behoorlik voor die Hof
te plaas, soos wat sy aanvanklik
moes gedoen het. As die applikant,
na behoorlike oorweging en regsadvies, van mening is dat sy wil
voortgaan met 'n eis gebaseer
op haar sogenaamde konstitusionele punt
of moontlik 'n ander eisoorsaak, soos universele vennootskap waarna
die Meester verwys het,
dan staan dit haar steeds vry, maar op
hierdie stadium
WORD DIE AANSOEK VAN DIE HAND GEWYS MET
KOSTE
.
’ (Emphasis – in bold - added.)
To my
mind, a analysis of the affidavits filed and of the judgment
delivered in the 1998 application makes it abundantly clear that
the
applicant’s cause of action in the present proceedings, based on
the meaning of the word ‘
spouse
’ in the
Intestate
Succession Act, was
neither properly raised as a cause of action in
the 1998 application, nor finally adjudicated upon between the
parties at that stage.
I will assume, in favour of the first and
second respondents, that the fact that this issue was not explicitly
raised on the affidavits
filed in the 1998 application is not
necessarily
decisive of the question of
res judicata
or
issue estoppel
. Thus, in
Horowitz v Brock & Others
1988 (2) SA 160
(A) at 180J-181A, the Appellate Division (as it then
was) held that -
‘
while a Court in motion proceedings may decide a dispute on an
issue which has not been raised on the affidavits or in the relief
sought provided it has been fully canvassed
“it must be fully
canvassed by both sides in the sense the Court is expected to
pronounce upon it as an issue”.’
(See too, in
this regard, Rabie
op cit
para 442;
South Peninsula
Municipality v Evans & Others
2001 (1) SA 271
(C) at
280I-283H; and cf.
South British Insurance Co Ltd v Unicorn
Shipping Lines (Pty) Ltd
1976 (1) SA 708
(A) at 714F-G.)
By no
stretch of the imagination, however, can it be said that the
interpretative and/or the constitutional issue in respect of the
Intestate Succession Act, raised
by the applicant in these
proceedings,
was
fully canvassed by both sides in the 1998
application, nor that the Court in that application finally
pronounced upon such issue.
At the most, Steyn AJ expressed certain
views in regard to a
potential
alternative cause of action
which the applicant
wished to
raise
, and in order to
provide for which the applicant’s counsel applied for a
postponement of the hearing. This application for a postponement
was
refused by Steyn AJ and it is clear from her judgment that the views
expressed by her on the applicant’s ‘
beweerde beoogde
alternatiewe eisoorsaak
’ were preliminary only, and did not
form part of the basis upon which she dismissed the 1998 application.
I disagree with the
argument advanced by counsel for the first and
second respondents in the proceedings before me to the effect that
the part of the
judgment of Steyn AJ dealing with the applicant’s
so-called ‘
konstitutionele punt
’ was a final judgment on
the merits of that cause of action. This being so, one of the
requirements for a successful defence of
res judicata
, namely
that the previous judgment was based on the same cause of action as
that presently relied upon (or, to put it differently,
that ‘
the
cause of action has been finally litigated between the parties
’
– see
Custom Credit Corporation (Pty) Ltd v Shembe
1972 (3)
SA 462
(A) at 472A-B), has not been satisfied.
This
conclusion renders it unnecessary for me to consider whether the
other two requirements for the defence of
res judicata
(namely, that the previous judgment was given in proceedings between
the same parties, and with respect to the same relief) have
been met.
Suffice it to say that, despite the strenuous arguments to the
contrary advanced by counsel for the first and second respondents,
I
am inclined to the view that this question should be answered in the
negative. I do not, however, express any definite conclusion
one way
or the other in this regard.
This is also
not a case in which, in order to ensure overall fairness and equity,
a relaxation of any of the requirements for the
defence of
res
judicata
would be appropriate. As indicated, the interpretative
and/or the constitutional issue in respect of the
Intestate
Succession Act was
neither properly canvassed, nor finally
adjudicated upon, in the 1998 application. There can thus be no
question of the application
of the doctrine of issue estoppel, as it
is understood by the South African courts, in the present case.
Indeed, were I to allow
the first and second respondents to shelter
behind the defence of
res judicata
or of
issue estoppel
in the present proceedings, I would, in effect, be blocking the
determination of an important issue which has not previously been
determined in a court of law, and I may well thereby be doing an
injustice to
both
parties, not only to the applicant. In my
view, therefore, the reliance of the first and second respondents on
res judicata
and
issue estoppel
must fail.
Interpretation
of the word
‘
spouse
’
as utilised in the relevant Act
Section 1
of
the
Intestate Succession Act provides
that:
‘
(1) If
after the commencement of this Act a person (hereinafter referred
` to as the
“deceased”
) dies intestate, either wholly or
in part, and –
is
survived by a spouse, but not by a descendant, such spouse shall
inherit the intestate estate;
is
survived by a descendant, but not by a spouse, such descendant shall
inherit the intestate estate;
is
survived by a spouse as well as a descendant –
such
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 of Justice by notice in the
Gazette
[fixed at present at R125 000.00 –
see GN 483 in
Government Gazette
11188 of 18 March 1988],
whichever is the greater; and
such
descendant shall inherit the residue (if any) of the intestate
estate;
…’.
Section 2 of the Maintenance of Surviving Spouses
Act, in turn, provides the following:
‘
(1) If a marriage is dissolved by death after the commencement
of this Act the survivor shall have a claim against the estate of the
deceased spouse for the provision of his reasonable maintenance needs
until his death or remarriage insofar as he is not able to
provide
therefor from his own means and earnings.
’
In terms of
Section 1 of the Maintenance of Surviving Spouses Act, the word
‘
survivor
’ is defined as meaning ‘
the surviving
spouse in a marriage dissolved by death
’.
As indicated
above, however, there is no definition of the word ‘
spouse
’
in either of the two Acts.
Mr
Chaskalson
and Ms
Williams
, who represented the applicant in the
proceedings before this Court, contended that the ‘
ordinary
’
meaning of the word ‘
spouse
’ – namely, ‘
married
person; a wife, a husband
’ (see
The New Shorter Oxford
English Dictionary
(Clarendon Press, 1993)) – is clearly
capable of including a person in the position of the applicant (ie, a
person who was the
wife or husband of the deceased in a
de facto
monogamous marriage by Muslim rites). Thus, on the ordinary literal
interpretation of the two Act, the applicant is entitled to
those
rights which the Acts vest in surviving ‘
spouses
’.
As was
pointed out by counsel for both sides, marriages by Muslim rites have
thus far not been recognised by South African courts
as valid
(‘
legal
’) marriages, firstly, because such marriages are
potentially polygynous and hence contrary to public policy (whether
or not the
actual union is in fact monogamous) and secondly, because
such marriages are not solemnised by authorised marriage officers in
accordance
with the provisions of the Marriage Act 25 of 1961 (see,
for example,
Bronn v Fritz Bronn’s Executors & Others
(1860)
3 Searle 313
;
Seedat’s Executors v The Master (Natal)
1917
AD 302
;
Davids v The Master
1983 (1) SA 458
(C);
Ismail v
Ismail
1983 (1) SA 1006
(A), and
S v Johardien
1990 (1) SA
1026
(C)). Applicant’s counsel submitted, however, that the
‘
cultural chauvinism
’ of the line of cases refusing to
recognise marriages by Muslim rites as valid marriages, or parties
married by Muslim rites as
‘
spouses
’, for the purposes of
common law and statutory rights is incompatible with the
boni
mores
of contemporary South Africa. As evidence of the changing
approach of South African courts to marriages by Muslim rites,
applicant’s
counsel relied,
inter alia
, on the judgment of
Farlam J (as he then was) in
Ryland v Edros
1997 (2) SA 690
(C) and the judgment of Mahomed CJ in
Amod v Multilateral Motor
Vehicle Accidents Fund (Commission for Gender Equality intervening)
1999 (4) SA 1319
(SCA).
Ryland v
Edros
concerned an attempt by the defendant, a woman previously
married by Muslim rites in a
de facto
monogamous union which
had been terminated by her husband in accordance with Islamic law, to
enforce (by way of a claim in reconvention)
certain incidents of ‘
the
contractual agreement
’ constituted by the marriage by Muslim
rites between the parties. It is important to note that, as was
emphasised by counsel for
the defendant in that case, the Court was
not
asked to recognise the marriage by Muslim rites as a valid
marriage, ‘
but merely to enforce certain terms of a contract
made between the parties which are in a sense collateral thereto
’
(at 709F). Farlam J formulated the relevant question for
determination by the court as follows (at 701I-702A):
‘
Is the Court precluded from enforcing the terms of the
“
contractual agreement”
between the parties because of the
decision of the Appellate Division in
Ismail v Ismail
1983 (1) SA 1006
(A), in which it was held that claims for
maintenance and deferred dowry brought by a woman against a man to
whom she had been married
by Muslim rites were not enforceable
because they were intrinsic to a conjugal union between the parties
which, being potentially
polygamous (although in fact monogamous) was
void on the grounds of public policy?
’
Applying
section 35(3) of the interim Constitution (Constitution of the
Republic of South Africa Act, 200 of 1993), the learned judge
considered whether the spirit, purport and objects of Chapter 3 of
the interim Constitution and the values underlying such Chapter
were
in conflict with the views as to public policy expressed and applied
in the
Ismail
case, holding that, if this question were to be
answered in the affirmative, then the values underlying Chapter 3 of
the interim
Constitution should prevail. Relying upon the values of
equality, tolerance of diversity and the recognition of the plural
nature
of South African society as being among the values underlying
the interim Constitution, Farlam J ultimately came to the conclusion
there was nothing offensive to public policy or good morals in the
contract which the defendant was seeking to enforce in those
proceedings
– ‘
a contract concluded by parties which arises
from a marriage relationship entered into by them in accordance with
the rites of their
religion and which as a fact is monogamous
’
(at 707E-F read together with 710D-711C). The Court in the
Ismail
case had taken into account the views (or presumed views) of only one
group in the heterogeneous South African society and, in the
light of
the interim Constitution:
‘…
It
is quite inimical to all the values of the new South Africa for one
group to impose its values on another and … the Courts should
only
brand a contract as offensive to public policy if it is offensive to
those values which are shared by the community at large,
by all
right-thinking people in the community and not only by one section of
it
’ (at 707G).
Farlam J
emphasised that his views were confined to contractual terms agreed
to in the context of a
de facto
monogamous Muslim marriage and
would not necessarily apply to contractual terms flowing from a
polygamous Muslim marriage (at 709D).
While the judgment of Farlam J is enlightened, progressive and
constitutionally sensitive, and has correctly been applauded as such
(see, in this regard, Van Heerden
et al
Boberg’s Law of
Persons and the Family
(2 ed, 1999) 165 note 13 and authorities
there cited), it cannot be construed as authority for the proposition
that a marriage by
Muslim rites (albeit a
de facto
monogamous
marriage) is a ‘
valid marriage
’ for purposes of the South
African law, nor that the parties to such a marriage are to be
recognised as ‘
spouses
’ in the interpretation of South
African legislation.
Exactly the
same can be said of the judgment of the Supreme Court of Appeal in
the
Amod
case (
supra
). In this case, a dependant’s
action was brought against the insurer of a driver who had
negligently killed the husband of a woman
(the appellant) married
according to Muslim rites in a
de facto
monogamous marriage,
which marriage had not been registered as a civil marriage in terms
of the Marriage Act 25 of 1961. Counsel
for the respondent in that
case contended that the appellant’s claim should fail because the
marriage between her and the deceased
did not enjoy the status of a
‘
marriage
’ in the civil law; that any legal duty which
the deceased had to support the appellant was therefore a contractual
consequence
of the union between them and not an
ex lege
consequence of the marriage
per se
; and that the dependant’s
action for loss of support should not be extended to cover claims for
loss of support undertaken contractually,
but not flowing from the
common-law consequences of a valid marriage (at para [16]).
As in
Ryland
v Edros
(
supra
), Mahomed CJ did not consider it necessary
to grapple with the question whether or not the marriage between the
appellant and the
deceased was a ‘
valid marriage
’ in terms
of the South African law. According to the learned Chief Justice:
‘ [20]
The crucial question which therefore needs to be applied
is whether or not the legal right which appellant had to support from
the
deceased during the subsistance of the marriage is a right which,
in the circumstances disclosed by the present case, deserves
recognition
and protection by the law for the purposes of the
dependant’s action. In my view, it does, if regard is had to the
fact that at
the hearing before us it was common cause that the
Islamic marriage between the appellant and the deceased was a
de
facto
monogamous marriage; that it was contracted
according to the tenets of a major religion; and that it involved
“a
very public ceremony, special formalities and onerous obligations for
both parents in terms of the relevant rules of Islamic
law
applicable”.
The insistence that the duty of support which such
a serious
de facto
monogamous marriage imposes
on the husband is not worthy of protection can only be justified on
the basis that the only duty of support
which the law will protect in
such circumstances is a duty flowing from a marriage solemnised and
recognised by one faith or philosophy
to the exclusion of others.
This is an untenable basis for the determination of the
boni
mores
of the society. It is inconsistent with the new
ethos of tolerance, pluralism and religious freedom which had
consolidated itself
in the community even before the formal adoption
of the interim Constitution on 22 December 1993…
[23]
I
have no doubt that the
boni mores
of the
community at the time when the cause of action arose in the present
proceedings would not support a conclusion which denies
a duty of
support arising from a
de facto
monogamous
marriage solemnly entered into in accordance with the Muslim faith
any recognition in the common law for the purposes
of the dependant’s
action; but which affords to the same duty of support arising from a
similarly solemnised marriage in accordance
with the Christian faith
full recognition in the same common law for the same purpose; and
which even affords to polygamous marriages
solemnised in accordance
with African customary law exactly the same protection for the same
purpose (by virtue of the provisions
of s 31 of the Black Law
Amendment Act 76 of 1963, which reverses the consequences of the
Fondo
judgment
[
Suid-Afrikaanse Nasionale
Trust en Assuransie Maatskappy Bpk v Fondo
1960 (2) SA 467
(A)]
in respect of customary marriages). The inequality,
arbitrariness, intolerance and inequity inherent in such a conclusion
would be
inconsistent with the new ethos which prevailed on 25 July
1993 when the cause of action in the present matter commenced...
[25] …
For
the purposes of the dependent’s action the decisive issue is not
whether the dependant concerned was or was not lawfully married
to
the deceased, but whether or not the deceased was under a legal duty
to support the dependant in a relationship which deserved
recognition
and protection at common law. If the marriage between the dependant
and the deceased was a valid marriage in terms of
the civil law, she
would of course have the right to pursue a dependant’s claim based
on the duty of the deceased to support her,
but it does not follow
that, if she were not so married, she should have no such right. On
the analysis I have previously made she
would indeed have such a
right even if she was not validly married to the deceased in the
civil law if the deceased was under a legally
enforceable contractual
duty to support her following upon a
de facto
monogamous marriage in accordance with a recognised and accepted
faith such as Islam.
’
(For critical
discussion of the judgment of Mahomed CJ in the
Amod
case, see
inter alia
Goldblatt ‘
Amod v Multilateral Motor Vehicle
Accidents Fund (Commission for Gender Equality Intervening)
1999
(4) SA 1319
(SCA)
’
(2000) 16
SAJHR
138
; Bonthuys
‘The South African Bill of Rights and the Development of Family
Law’
(2002) 119
SALJ
748
at 762-763; Sinclair ‘Embracing
New Family
Forms, Entrenching Outmoded Stereotypes: Building
the Rainbow Nation’, unpublished paper presented at the
International Society
of Family Law 11
th
World Conference
Family Law and Human Rights
August 2002, Copenhagen/Oslo at
pages 22-24.)
While the
articulation, in the
Ryland
and
Amod
cases, of the
changes in the
boni mores
of South African society in a
post-constitutional era in respect of marriages by Muslim rites may
well be relevant in the determination
of the applicant’s
(alternative) reliance on the unconstitutionality of the
Intestate
Succession Act and
the Maintenance of Surviving Spouses Act, neither
case ‘
address
[ed]
the persistent invalidity of Muslim…
marriages (
see Van Heerden
et al op cit
167-168), or dealt
in any way with the meaning to be given to the word ‘
spouse
’
in South African legislation. Indeed, in the
Amod
case, the
Supreme Court of Appeal emphasised (at para [27]) that its
recognition of a legal duty of support as a contractual incident
of a
Muslim marriage for the purposes of the dependant’s action would
not lead ‘
to a recognition of possibly other incidents of such a
marriage which have neither been articulated or properly analysed in
the present
appeal … It is perfectly possible to recognise one
incident of such a marriage for a special purpose without necessarily
recognising
any other incident of such marriage for that purpose or
any other purpose
’.
In support of
the proposition that, on an ordinary interpretation, the word
‘
spouse
’ in the
Intestate Succession Act and
in the
Maintenance of Surviving Spouses Act would include a person in the
position of the applicant, applicant’s counsel also relied
on
various recently enacted or amended statutes which expressly
recognise Muslim marriages and other religious marriages for the
purposes of conferring certain rights on the parties to such
marriages. In this regard, reference was made to,
inter alia
,
the following statutory provisions:
In terms of section 10(1) of the Civil Proceedings Evidence Act 35
of 1965, neither a husband nor a wife may be compelled, in civil
proceedings, to disclose any communication made to him or her by the
other spouse during the existence of the marriage. Section
10A of
the Act, which was inserted by section 4 of the Justice Laws
Rationalisation Act 18 of 1996 (with effect from 1 April 1997),
provides that ‘
any customary marriage or customary union,
concluded under the indigenous law and custom of any of the
indigenous peoples of the
Republic of South Africa or
any
marriage concluded under any system of religious law, shall be
regarded as a valid marriage for the purposes of the law of

evidence
’.
In terms of
section 195(2)
of the
Criminal Procedure Act 51 of 1977
,
as substituted by
section 4
of Act 18 of 1996 (with effect from 1
April 1997), the word ‘
marriage
’, for the purposes for
the law of evidence in criminal proceedings (and in particular, in
the context of section 195, for the
purposes of the compellability
of one spouse as a witness for the prosecution in criminal
proceedings against the other spouse)
is expressly defined to
include ‘
a customary marriage or customary union concluded
under the indigenous law and custom of any of the indigenous peoples
of the Republic
of South Africa or
any marriage concluded
under any system of religious law
’.
In terms of section 1 of the Government Employees Pension Law 1996
(Proclamation No. 21 of 1996) (date of commencement 1 May 1996),
the
word ‘
dependant
’ is defined, in relation to a member or a
pensioner, as including ‘
(b) any person in respect of whom the
member or pensioner is not legally liable for maintenance, if such a
person – (i) … ;
(ii) is the spouse of a member of pensioner,
including a party to a customary union according to indigenous law
and custom, or
to a
union recognised as a marriage
under the tenets of any religion
’.
Similarly, item 1.19 of Schedule 1 to the Government Employees
Pension Law defines ‘
spouse
’ as meaning ‘
a person
who can provide proof to the satisfaction of the Board of Trustees
that he or she was the lawful husband or wife of a member
or
pensioner at the time of that member’s or pensioner’s death, or,
if he or she was
not the lawful husband or wife of that
member or pensioner
, that he or she was the
spouse
of that member of pensioner according to indigenous law or custom or
the tenets of any Asiatic religion
’.
In terms of section 1(d) of the Taxation Laws Amendment Act 5 of
2001 (date of commencement 20 June 2001), the following definition
of ‘
spouse
’ was inserted into
section 1
of the
Transfer
Duty Act 40 of 1949
:
‘”Spouse”
in relation to any person, means the partner
of such person
in a marriage or customary union recognised in terms of the laws
of the Republic;
in a union recognised as a marriage in accordance with the
tenets of any religion
; or
in a same-sex or heterosexual union which the Commissioner is
satisfied is intended to be permanent;
provided that a marriage or union contemplated in paragraph (b) or
(c) shall, in the absence of proof to the contrary, be deemed to
be a
marriage or union without community of property.
’
One of the consequences of this new definition is that the exemption
from transfer duty of property acquired by ‘
a surviving spouse …
in any manner from the estate of the deceased spouse
’
(section
9(1)(f))
now also applies to property inherited by the surviving
spouse from a deceased spouse to whom he or she was married by Muslim
rites.
Similarly, with effect from 27 April 1994, a definition of
‘
spouse
’ was inserted into section 1 of the Estate Duty
Act 45 of 1955 by
section 1(1)
of the
Revenue Laws Amendment Act 59
of 2000
. The definition of ‘
spouse
’ included, in relation
to any deceased person, ‘
a person who at the time of death of
such deceased person was the partner of such a person – (a) in a
marriage recognised in terms
of the Laws of the Republic; (b) in a
marriage entered into in accordance with any system of religious law
which is recognised in
the Republic; or (c) in a permanent same-sex
life relationship
’.
This definition of ‘
spouse
’ was subsequently amended by
sections 1(a) and (b) of the Taxation Laws Amendment Act 5 of 2001
(with effect from 20 June 2001)
so that it is now, in all material
respects, virtually identical to the definition of ‘
spouse
’
inserted into the
Transfer Duty Act by
section 1(d)
of Act 5 of 2001
(as cited in full above). One of the consequences of these
amendments to the Estate Duty Act is that, with effect
from 27 April
1994 (when the interim Constitution came into operation), property
included in a deceased estate which accrues to the
surviving spouse
who was married to the deceased by Muslim rites is exempted from the
payment of estate duty (see section 4(ii)).
Mention could
also be made of the definition of ‘
marriage
’ inserted into
section 1 of the Child Care Act 74 of 1983 by section 1(d) of the
Child Care Amendment Act 96 of 1996 (with effect
from 1 April 1998).
For the purposes of the Child Care Act, ‘
marriage
’ is now
defined as meaning ‘
any marriage which is recognised in terms of
South African law or customary law, or
which was concluded
in accordance with a system of religious law subject to specified
procedures
, and any reference to a husband, wife, widower,
widow, divorced person, married person or spouse shall be construed
accordingly
’. (The emphasis in all of the statutory provisions
cited above is my own.)
There are
other examples of statutes or amendments to statutes in terms of
which words such as ‘
marriage
’, ‘
spouse
’ and
‘
dependant
’ are expressly defined so as to include,
inter
alia
, marriages by Muslim rites and other religious marriages for
specified purposes. Some of these were referred to by the
applicant’s
counsel, others not.
The argument
advanced by counsel for the applicant in this regard was that these
legislative enactments and amendments, seen together
with the shift
in South African public policy in respect of the recognition of
certain incidents of Muslim marriages (as articulated
in cases such
as
Ryland
and
Amod
(
supra
)), indicate that there
is no longer any legal basis upon which to ‘
strain
’ the
‘
ordinary
’ meaning of ‘
spouse
’ in the
Intestate
Succession Act and
the Maintenance of Surviving Spouses Act so as to
interpret ‘
spouse
’ as excluding Muslim husbands and wives.
In my view,
however, counsel’s reliance upon these legislative enactments and
amendments in support of this proposition is misplaced.
Neither the
Intestate Succession Act, nor the
Maintenance of Surviving Spouses
Act, contains any interpretative provisions along the lines of those
discussed above. Far from
supporting the argument that, on ordinary
principles of statutory interpretation, the word ‘
spouse
’
in either of these two Acts includes any person other than a party to
a marriage recognised as valid in South African law, the
deeming and
interpretative provisions referred to in fact point in the opposite
direction. By explicitly creating exceptions to
the general rule
that the only marriages to which legal consequences are attached in
South African law are marriages solemnised in
accordance with the
provisions of the Marriage Act 25 of 1961 and, as such, recognised as
valid marriages in this country, the said
statutory provisions
provide support for the view that,
in the absence of any such
deeming or interpretative provision
, the word ‘
spouse
’
in a statute must be given its ‘
traditional, limited meaning.
’
There is
another important component to that part of the applicant’s case
which is based upon the interpretation of the word ‘
spouse
’
in the relevant Acts. It relies upon the ‘
new
’ method of
interpreting statutory provisions ushered in by the enactment of
first the interim Constitution and, later, of the Constitution
of the
Republic of South Africa Act 108 of 1996. Counsel for both sides
were in agreement that, because any rights which the applicant
may
have in respect of the estate of the deceased vested upon his death
on 27 November 1994, at a time when the interim Constitution
was in
operation, it is the interim Constitution which is applicable when
determining whether the relevant statutory provisions may
legitimately be interpreted in such a way as to conform to the Bill
of Rights in that Constitution (ie Chapter 3 of Act 200 of 1993).
Section 35(3)
of the interim Constitution provides that ‘
in the interpretation
of any law and the application and development of the common law and
customary law, a court shall have due regard
to the spirit, purport
and objects of this Chapter
’. Moreover, section 35(2)
expressly provides for a process of interpretation of legislative
provisions sometimes called ‘
reading-down
’, ie that ‘
no
law which limits any of the rights entrenched in this chapter, shall
be constitutionally invalid solely by reason of the fact that
the
wording used
prima facie
exceeds the limits
imposed in this chapter, provided such law is reasonably capable of a
more restricted interpretation which does
not exceed such limits, in
which event such law shall be construed as having a meaning in
accordance with the said more restricted
interpretation
’ (see
also section 232(3)).
Section 35(2)
of the interim Constitution was not repeated explicitly in the final
Constitution, but the method of statutory interpretation
mandated
(and indeed required) by this section, read in conjunction with
section 35(3), is now to be found in section 39(2) of the
1996
Constitution. Section 39(2) states that: ‘
When interpreting
any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.
’
In the recent case of
Govender v Minister of Safety and Security
2001 (4) SA 273
(SCA), in which the interim Constitution was the
applicable one, the Supreme Court of Appeal (per Olivier JA) drew no
distinction
between the method of statutory interpretation mandated
by sections 35(2) and (3) of the interim Constitution with that
followed
by,
inter alia
, the Constitutional Court in applying
section 39(2) of the final Constitution. As regards the latter
section, a clear statement
of the approach to be followed is to be
found in the judgment of Langa
DP in the
Constitutional Court case of
Investigating Directorate: Serious
Economic Offences & Others v Hyundai Motor Distributors (Pty) Ltd
& Others
: In re Hyundai Motor Distributors (Pty) Ltd &
Others v Smit NO & Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC). According to
Langa DP, section 39(2) of the Constitution means –
‘[21] …
That all statutes must be interpreted through the
prism of the Bill of Rights. All law-making atuhority must be
exercised in accordance
with the Constitution. The Constitution is
located in a history which involves a transition from a society based
on division,
injustice and
exclusion from the democratic process to one which respects the
dignity of all citizens, and includes all in the process
of
governance. As such, the process of interpreting the Constitution
must recognise the context in which we find ourselves and the
Constitution’s goal of a society based on democratic values, social
justice and fundamental human rights. This spirit of transition
and
transformation characterises the constitutional enterprise as a
whole.
[22]
The purport and objects of the Constitution find expression
in s 1 which lays out the fundamental values which the Constitution
is
designed to achieve. The Constitution requires that judicial
officers read legislation, where possible, in ways which give effect
to its fundamental values. Consistently with this, when the
constitutionality of legislation is in issue, they are under a duty
to examine the objects and the purport of an Act and to read the
provisions of the legislation, so far as is possible, in conformity
with the Constitution.
[23]
In
De
Lange v Smuts NO & Others
[1998] ZACC 6
;
[1998 (3) SA 785
(CC)],
Ackermann J stated that the principle or reading in
conformity does
“no more than
give expression to a sound principle of constitutional interpretation
recognised by other open and democratic societies
based on human
dignity, equality and freedom such as, for example, the United States
of America, Canada and Germany, whose constitutions,
like our 1996
Constitution, contain no express provision to such effect. In my
view, the same interpretative approach should be
adopted under the
1996 Constitution.”
Accordingly,
judicial officers must prefer interpretations of legislation that
fall within constitutional bounds over those that do
not, provided
that such an interpretation can be reasonably ascribed to the
section.
[24]
Limits must, however, be placed on the application of this
principle. On the one hand, it is the duty of a judicial officer to
interpret
legislation in conformity with the Constitution so far as
this is reasonably possible. On the other hand, the Lgislature is
under
a duty to pass legislation that is reasonably clear and
precise, enabling citizens and officials to understand what is
expected of
them. A balance will often have to be struck as to how
this tension is to be resolved when considering the constitutionality
of
legislation. There will be occasions when a judicial officer will
find that the legislation, though open to a meaning which would
be
unconstitutional, is reasonably capable of being read
“in
conformity with the Constitution”.
Such an interpretation
should not, however, be unduly strained.
’
(On the
application of this principle of ‘
reading in conformity
’,
sometimes referred to as the indirect application of the Bill of
Rights to legislation, see further De Waal
et al The Bill of
Rights Handbook
(4 ed 2001) 70-75 and the other authorities there
cited.)
Relying upon
sections 35(2) and (3) of the interim Constitution (and, by analogy,
on section 39(2) of the final Constitution), counsel
for the
applicant argued that an interpretation of ‘
spouse
’ which
would have the effect of excluding persons in the position of the
applicant from the provisions of the
Intestate Succession Act and
the
Maintenance of Surviving Spouses Act, would result in a violation of
the applicant’s fundamental rights (enshrined in section
8(2) of
the interim Constitution) not to be discriminated against unfairly
and unjustifiably on the grounds of,
inter alia
, religion and
culture. This being so, such an interpretation would render both
statutes unconstitutional and hence invalid. However,
because the
inclusion of Muslim husbands and wives within the meaning of the word
‘
spouse
’, as utilised in these statutes, is a ‘
plausible
’
interpretation which can reasonably be ascribed to the relevant
provisions, such an interpretation, which would be in conformity
with
the Constitution, must be adopted by this Court.
This argument
is, at least superficially, an attractive one. However, where it
falls down, in my view, is in the proposition that
the interpretation
of the word ‘
spouse
’, in the context of the
Intestate
Succession Act and
the Maintenance of
Surviving Spouses Act,
is a ‘
plausible
’ one. I have already indicated that, seen
against the background of recent statutory enactments and amendments
which, by way of
express deeming or interpretative provisions,
recognise (
inter alia
) marriages by Muslim rites for specific
purposes, as also in the light of the approach to the ‘
recognition
’
of Muslim marriages adopted in the
Ryland
and
Amod
cases (
supra
), an interpretation of the word ‘
spouse
’
in the
Intestate Succession Act and
the Maintenance of Surviving
Spouses Act to include any person other than a party to a marriage
currently recognised as valid in
South African law would
not
be
a reasonably possible interpretation.
I have
reached this conclusion with considerable reluctance. It is,
however, borne out by the approach adopted by the Constitutional
Court in recent cases, particularly
National Coalition for Gay and
Lesbian Equality & Others v Minister of Home Affairs & Others
2000 (2) SA 1
(CC) and
Satchwell v President of the Republic of
South Africa & Another
2002 (6) SA 1
(CC). In the former
case, Ackermann J, writing for the full Court, held that the word
‘
spouse
’, as used in section 25(5) of the Aliens Control
Act 96 of 1991, was not reasonably capable of a broad construction so
as to include
partners in permanent same-sex life partnerships. The
word ‘
spouse
’ was not defined in the Act, but its ordinary
meaning connoted a ‘
married person: a wife, a husband
’
and the context in which ‘
spouse
’ was used in section
25(5) did not suggest a wider meaning. While some of these
statements by Ackermann J may possibly be construed
as
supporting
the interpretative arguments relied upon by the applicants in the
present proceedings, it is important to note that Ackermann J went
further by stating (at para [25]) that there was no indication that
the word ‘
marriage
’ as used in the Aliens Control Act
extended ‘
any further than those marriages that are ordinarily
recognised by our law
’, ie marriages that are solemnised in
accordance with the provisions of the Marriage Act 25 of 1961. In
coming to these conclusions,
the learned judge made the following
salient comments:
‘[23]
… There is, it is true, a principle of constitutional
interpretation that where it is reasonably possible to construe a
statute
in such a way that it does not give rise to constitutional
inconsistency, such a construction should be preferred to another
construction
which, although also reasonable, would give rise to such
inconsistency. Such a construction is not a reasonable one, however,
when
it can be reached only by distorting the meaning of the
expression being considered.
[24]
There
is a clear distinction between interpreting legislation in a way
which
“promote[s] the spirit, purports and objects of the Bill
of Rights”
as required by s 39(2) of the Constitution and the
process of reading words into or severing them from a statutory
provision which
is a remedial measure under section 172(1)(b),
following upon a declaration of constitutional invalidity under s
172(1)(a))… What
is now being emphasised is the fundamentally
different nature of the two processes. The first process, being an
interpretative one,
is limited to what the text is reasonably capable
of meaning. The latter can only take place after the statutory
provision in question,
notwithstanding the application of all
legitimate interpretative aids, is found to be constitutionally
invalid.
’
In a similar
vein, Madala J (writing for the full Court) in the
Satchwell
case (
supra
) considered the meaning of the word ‘
spouse
’
in sections 8 and 9 of the Judges’ Remuneration and Conditions of
Employment Act 88 of 1989 (which Act was subsequently replaced
by the
Judges’ Remuneration and Conditions of Employment Act 47 of 2001
),
both of which sections provided for the payment of certain financial
benefits to the ‘
surviving spouse
’ of a deceased judge.
Despite the previous finding by Ackermann J in the
National
Coalition for Gay and
Lesbian Equality
case (
supra
),
to the effect that the omission from section 25(5) of the Aliens
Control Act after the word ‘
spouse
’ of the words ‘
or
partner
,
in a
permanent same-sex life partnership
’
was
unconstitutional, the interpretative point of departure
taken by Madala J was precisely the same as that previously adopted
by Ackermann
J. Pointing out that the Judges’ Remuneration and
Conditions of Employment Act 88 of 1989 restricted the provision of
certain
benefits to ‘
spouses
’ only and that there was no
definition of the word ‘
spouse
’ in the provisions under
attack, Madala J continued as follows (at para [9]):
‘
In the circumstances the ordinary wording of the provisions
must be taken to refer to a party to a marriage that is recognised as
valid in law and not beyond that … The context in which ‘
spouse
’
is used in the impugned provisions does not suggest a wider meaning,
nor do I know of one. Accordingly, a number of relationships
are
excluded, such as same-sex partnerships and permanent life
partnerships between unmarried heterosexual cohabitants.
’
In the light
of what I have said above, it follows that I am of the view that the
word ‘
spouse
’, as utilised in the
Intestate Succession Act
and
the Maintenance of Surviving Spouses Act, cannot be interpreted
so as to extend to a husband or wife in a
de facto
monogamous
marriage by Muslim rites. Prayers 1 and 3 of the relief sought by
the applicant therefore cannot be granted.
The
Constitutional issues
As indicated above, counsel for the applicant contended that if this
Court were to decide that, on a proper construction of the
Intestate
Succession Act and
the Maintenance of Surviving Spouses Act, a person
such as the applicant married in accordance with Muslim rites in a
de facto
monogamous union is not a ‘
spouse
’ for the
purposes of such Acts, the failure to provide for such persons in
these Acts is unconstitutional and invalid. Counsel
based their
submissions in this regard on an alleged violation of the equality
clause (section 8) contained within the Bill of Rights
(Chapter 3) of
the interim Constitution. The relevant provisions of section 8 read
as follows:
‘
(1) Every person shall have the right to equality before the
law and to equal protection of the law.
No person shall be unfairly discriminated against, directly or
indirectly, and, without derogating from the generality of this
provision,
on one or more of the following grounds in particular:
race, gender, sex, ethnic or social origin, colour, sexual
orientation,
age, disability, religion, conscience, belief, culture
or language.
(3) (a) This
section shall not preclude measures designed to achieve
the adequate
protection and advancement of persons or groups or categories of
persons disadvantaged by unfair discrimination, in order
to enable
their full and equal enjoyment of all rights and freedoms.
…
Prima
facie
proof
of discrimination on any of the grounds specified in subsection (2)
shall be presumed to be sufficient proof of unfair discrimination
as
contemplated in that subsection, unless the contrary is
established.
’
According to applicant’s counsel, the interpretation of the word
‘
spouse
’ as utilised in the two Acts so as to exclude a
person in the position of the applicant results in a differentiation
between
de facto
monogamous marriages entered into in
accordance with the procedures of religions (like Islam) which permit
polygynous marriages,
and
de facto
monogamous marriages
entered into in accordance with the procedures of religions which do
not permit polygynous marriages or in accordance
with the procedures
performed by a civil marriage officer - as such differentiation
between different types of spouses is on the
listed grounds of
religion and culture, it is presumed to be unfair discrimination.
I have
interpreted the word ‘
spouse
’, as utilised in the relevant
Acts, to mean a party to a ‘
marriage
’ celebrated in
accordance with the provisions of the Marriage Act 25 of 1961. This
Act requires that, to be valid, a marriage
must be solemnised by an
authorised marriage officer. Certain public officials (such as
magistrates) are
ex officio
marriage officers, while other
officers or employees of the public service or the diplomatic or
consular service of the Republic may
be designated as marriage
officers by the Minister of Home Affairs or any officer in the public
service authorised thereto by him
(see section 2 of Act 25 of 1961).
As regards what may be called ‘
religious marriage officers
’,
section 3(1) of Act 25 of 1961 provides that the Minister of Home
Affairs and any officer in the public service authorised thereto
by
him ‘
may designate any minister of religion of, or any person
holding a responsible position in, any religious denomination or
organisation
to be, so long as he is such a minister or occupies such
position, a marriage officer for the purpose of solemnising marriages
according
to Christian, Jewish or Mohammedan rites or the rites of
any Indian religion.
’ Theoretically, therefore, Muslim couples
are free to solemnise their marriage in terms of the Marriage Act and
thus acquire for
their relationship the status of a valid civil
marriage.
The matter is
not, however, as simple as it may seem. As was held by Trengove JA
in the
Ismail
case (
supra
) at 1021D-E, the words
‘
marriages according to Christian, Jewish or Mohammedan rites or
the rites of any Indian religion
’ in section 3(1) of the
Marriage Act relate only to the
form
of the marriage ceremony,
and not to the
essentials
of the marriage as such. Section
3(1) does not accord any recognition whatsoever to polygynous unions
and, while it (theoretically)
enables a Muslim couple to have their
marriage solemnised - according to Muslim rites - by a Muslim priest
who has been designated
a marriage officer, if the marriage is
intended to be a monogamous one, such Muslim priest would have to
comply with all the prescribed
formalities pertaining to the
solemnisation of marriages under the Act. It would appear that very
few Muslim priests have in fact
been appointed as marriage officers
in terms of section 3 of the Marriage Act and, accordingly, the great
majority of marriages contracted
in South Africa in accordance with
Muslim rites are
not
solemnised in terms of the Marriage Act
(see, in this regard, Cachalia ‘Citizenship, Muslim Family Law and
a Future South African
Constitution: A Preliminary Enquiry’
(1993)
56
THRHR
392
at 398-399 note 44; Sinclair (assisted by
Heaton)
The Law of Marriage
Volume 1 (1996) 265; and Joubert
‘Law of Marriage’ in Clark (ed)
Family Law Service
(1987,
with looseleaf updates) para A7).
In terms of
section 2 of the Indians Relief Act 22 of 1914, it was possible to
transform a ‘
marriage
’ entered into in South Africa
between Indian persons according to Muslim or Hindu custom into a
‘
legal marriage
’ by registration, provided the marriage by
Muslim or Hindu rites was recognised as a marriage under the tenets
of the relevant
religion and was, in fact, monogamous. When section
2 of Act 22 of 1914 was repealed by section 2 of the General Law
Amendment Act
80 of 1981, this possibility ceased to exist.
By contrast
with marriages by Muslim rites, it would appear that the vast
majority of marriages by Christian or Jewish rites, which
marriages
are monogamous marriages,
are
solemnised in accordance with
the provisions of the Marriage Act and are hence regarded as valid
marriages (see, for example, Sinclair
(assisted by Heaton)
op cit
158 and Van Heerden
et al op cit
164-168; cf also South
African Law Commission Discussion Paper 88 ‘
The Review of the
Marriage Act, 25 of 1961
’ Project 109 (September 1999) paras
2.1.2.24
et seq
). I am therefore not unduly impressed by the
argument seemingly advanced on behalf of the first and second
respondents to the effect
that, when the applicant married the
deceased by Muslim rites only, she exercised ‘
an election
’
not to enter into a marriage in accordance with the provisions of the
Marriage Act. To my mind, the reality of the situation
in which the
applicant – and other persons in her position – find themselves
is cogently illustrated by the following statement
made by the
applicant in the replying affidavit deposed to by her:
‘
I deny that I exercised any
“election”
when I
married in terms of Islamic Law. My late husband and I married under
Islamic Law because that is how marriages are concluded
in our
community. Neither my husband, nor I intended by our mode of
marriage to choose not to be married in the eyes of the law.
’
The
fundamental importance of equality in the South African
constitutional endeavour has repeatedly been emphasised by South
African
courts. In the words of Mohamed DP (as he then was) in
Fraser v Children’s Court, Pretoria North & Others
1997
(2) SA 261
(CC) at para [20]:
‘
There can be no doubt that the guarantee of equality lies at
the very heart of the Constitution. It permeates and defines the
very
ethos upon which the Constitution is premised
.’
It is also clear from several judgments of,
inter alia
, the
Constitutional Court that the concept of equality must be understood
in a
substantive
, rather than in a
formal
sense.
Promoting substantive equality requires an acute awareness of the
lived reality of people’s lives and an understanding
of how the
real life conditions of individuals and groups have reinforced
vulnerability, disadvantage and harm.
In the first
case in which the Constitutional Court had to grapple with the
equality clause in the interim Constitution, namely
Brink v
Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC), O’Regan J pointed out that –
‘[40]
As in other national constitutions, section 8 is the
product of our own particular history. Perhaps more than any of the
other provisions
in chap 3, its interpretation must be based on the
specific language of s 8, as well as our own constitutional context …
[41]
Although
our history is one in which the most visible and most vicious pattern
of discrimination has been racial, other systematic
motifs of
discrimination were and are inscribed on our social fabric. In
drafting s 8, the drafters recognised that systematic patterns
of
discrimination on grounds other than race have caused, and many
continue to cause, considerable harm. For this reason, s 8(2)
lists
a wide, and not exhaustive, list of prohibited grounds of
discrimination.
[42]
Section
8 was adopted then in the recognition that discrimination against
people who are members of disfavoured groups can lead to
patterns of
group disadvantage and harm. Such discrimination is unfair. It
builds and entrenches inequality amongst different groups
in our
society … The need to prohibit such patterns of discrimination and
remedy their results are the primary purposes of section
8 …
’
(See further
in this regard Albertyn & Goldblatt
‘Facing the
Challenge of Transformation: Difficulties in the Development of an
Indigenous Jurisprudence of Equality’
(1998) 14
SAJHR
248
;
Kentridge ‘Equality’ in Chaskalson
et al
(eds)
op cit
para 14.2; Cheadle, Davis & Haysom
South African
Constitutional Law: The Bill of Rights
(2002) 55-59, and the
other authorities discussed by these writers.)
In
Harksen
v Lane NO & Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC), the Constitutional
Court, drawing on its previous judgments in the cases of
Prinsloo
v Van der Linde & Another
1997 (3) SA 1012
(CC) and
President of the Republic of South Africa & Another v Hugo
1997 (4) SA 1
(CC), set out the stages of enquiry to be followed in
any case involving an alleged violation of the fundamental right to
equality,
as follows (at para [54]):
‘…
it
may be as well to tabulate the stages of enquiry which become
necessary where an attack is made on a provision in reliance on
section
8 of the interim Constitution. They are:
Does the provision differentiate between people or categories of
people? If so, does the differentiation bear a rational connection
to a legitimate government purpose? If it does not, then there is a
violation of section 8(1). Even if it does bear a rational
connection, it might nevertheless amount to discrimination.
Does the differentiation amount to unfair discrimination? This
requires a two-stage analysis:
Firstly, does the differentiation amount to
“discrimination”
?
If it is on a specified ground, then discrimination will have been
established. If it is not on a specified ground, then whether
or
not there is discrimination will depend upon whether, objectively,
the ground is based on attributes and characteristics which
have the
potential to impair the fundamental human dignity of persons as
human beings or to affect them adversely in a comparably
serious
manner.
If the differentiation amounts to
“discrimination”
,
does it amount to
“unfair discrimination”
? If it has
been found to have been on a specified ground, then unfairness will
be presumed. If on an unspecified ground, unfairness
will have to
be established by the complainant. The test of unfairness focuses
primarily on the impact of the discrimination on
the complainant and
others in his or her situation.
If, at the end of this stage of the enquiry, the differentiation
is found not to be unfair, then there will be no violation of section
8(2).
If the differentiation is found to be unfair then a determination
will have to be made as to whether the provision can be justified
under the limitations clause (s 33 of the interim Constitution).
’
This approach to the stages of equality analysis has been repeated
and confirmed by the Constitutional Court in several other cases
and
is now well-established in South African jurisprudence. (See, for
example,
National Coalition for Gay and Lesbian Equality &
Another v Minister of Justice & Others
1999 (1) SA 6
(CC) at
para [17];
National Coalition for Gay and Lesbian Equality &
Others v Minister of Home Affairs & Others (supra)
at para
[32];
Hoffmann v South African Airways
2001 (1) SA 1
(CC) at
para [16];
Satchwell v The President of the Republic of South
Africa & Another (supra)
at para [20];
Du Toit &
Another v Minister for Welfare and Population Development &
Others
2002 (10) BCLR 1006
(CC) at para [24].)
As I have
tried to illustrate above, the interpretation of the word ‘
spouse
’
in the relevant Acts as meaning only a party to a marriage recognised
as valid in South African law by virtue of its compliance
with the
provisions of the Marriage Act 25 of 1961
does
, because of the
practical, cultural and historical realities surrounding the
solemnisation of marriages in this country, differentiate
between
de
facto
monogamous marriages celebrated in accordance with Muslim
rites, on the one hand, and marriages celebrated in accordance with
Christian
and Jewish rites, as also non-religious (civil) marriages,
on the other. To my mind, this differentiation flows from, and is
linked
to, the religion, belief and cultural background of persons in
the position of the applicant: it is because the applicant is a
practising
Muslim that she entered into a marriage by Muslim rites;
according to the tenets of her religion, this marriage was a
potentially
polygynous one and, as such, not in line with the meaning
of ‘
marriage
’ underlying the provisions of the Marriage
Act 25 of 1961; because of the cultural practices of her community,
the applicant and
her husband failed to have their marriage –
although
de facto
a monogamous one – also solemnised by a
marriage officer in terms of the provisions of the Marriage Act. The
net result of all
these factors is that the applicant’s marriage –
and the marriages of persons in a like position – are not
recognised as ‘
valid
’ marriages in South African law and
the parties thereto do not enjoy the protection afforded to ‘
spouses
’
by virtue of,
inter alia
, the
Intestate Succession Act and
the
Maintenance of Surviving Spouses Act.
It is the
interplay between her religious beliefs and the cultural practices in
her community – and the failure of the South African
law properly
to accommodate such beliefs and practices - which have resulted in
the applicant being in her present position. Religion,
belief and
culture are all prohibited grounds of discrimination expressly listed
in section 8(2) and thus, in terms of section 8(4)
of the interim
Constitution, it is presumed that such differentiation constitutes
unfair discrimination, ‘
until the contrary is established
’.
In view of this conclusion, it is to my mind not necessary to embark
upon the ‘
rational connection enquiry
’ postulated by the
Constitutional Court in the
Harksen
case (
supra
) as the
first stage of an enquiry into an alleged violation of the equality
clause, nor to attempt to ascertain what government purpose
(if any)
may be said to be furthered or achieved by the differentiation in
question. (See, in this regard,
National Coalition of Gay and
Lesbian Equality & Another v Minister of Justice & Others
(
supra
) at para [18];
Hoffmann v South African Airways
(
supra
) at para [26]; and cf De Waal
et al op cit
203-204 and 206-210, and the other authorities there cited.)
The facts of this case highlight a cruel irony. As mentioned above,
the main asset in the deceased estate of the applicant’s late
husband is the house situate at 2 Athon Walk, Lucerne Place, Hanover
Park, which house was previously a council dwelling belonging
to the
City of Cape Town. On 15 October 1976 – prior to her marriage to
the deceased – the tenancy of this council dwelling
was allocated
by the City of Cape Town to the applicant. The applicant had by that
time been divorced from her previous husband
(Wilson) and it would
appear that, in terms of the then applicable council housing policy,
the applicant was regarded as ‘
a single person with dependants
residing permanently with him/her
’. As such, the applicant was
entitled to have the tenancy allocated to her in her own name. The
applicant and her children took
occupation of the council dwelling
during October 1976 and she has lived there continuously ever since.
The applicant
subsequently married the deceased by Muslim rites on 2 March 1977.
She informed the City of Cape Town of this marriage,
furnishing it
with a copy of her marriage certificate. Although this marriage by
Muslim rites was not then (nor is now) recognised
as a ‘
valid
’
marriage under South African law, it was nevertheless recognised by
the Council of the City of Cape Town, in accordance with the
housing
policy prevailing at that time, as a ‘
marriage
’ for the
purposes of effecting a transfer of the tenancy of the council
dwelling from the applicant’s name into the name of her
husband
(the deceased). The extracts from the ‘
Department of Community
Development Housing Code
’ annexed to the applicant’s founding
affidavit make it clear that a ‘
married female
’ could at
that time only be the tenant or the purchaser of a council dwelling
if she was ‘
the breadwinner of her family and who has dependants
residing permanently with her
’, although no such restrictions
were imposed upon the sale or letting of a council dwelling to ‘
a
married male
’. The transfer of tenancy was effected on 17 July
1978, at the time when the deceased was apparently the principal
breadwinner
of the family.
The transfer
of tenancy form (a copy of which is also annexed to the applicant’s
founding affidavit) reflects the marital status
of the deceased as
‘
Married (Moslem Rites)
’, while the reason for the
transfer of the tenancy is stated to be ‘
Transfer of Tenancy –
New Husband
’. The ‘
recognition
’ by the Council of
the City of Cape Town of the applicant’s marriage by Muslim rites
as a ‘
marriage
’ for the purposes of its housing policy
therefore had the result that the tenancy of a council dwelling
(recognised as a ‘
patrimonial benefit
’ in
Persad v
Persad & Another
1989 (4) SA 685
(D) at 688B-F) ceased to be
an asset in the estate of the applicant and became an asset in the
estate of her husband, the deceased.
As community of property is not
recognised under Islamic law, each spouse retaining sole ownership
and control of his or her property
(whether movable or immovable and
whether acquired before or during the marriage), the transfer of the
tenancy was also not in accordance
with the matrimonial property
regime ‘
governing
’ the marriage by Muslim rites (see, in
this regard, South African Law Commission Discussion Paper 101
‘
Islamic Marriages and Related Matters
’ Project 59
(December 2001) para 5.26; Cachalia
op cit
401, and Rautenbach
& Goolam (eds)
Introduction to Legal Pluralism in South
Africa: Part II – Religious Legal Systems
(2002) para 3.3.2.1).
This in itself is not surprising in view of the approach adopted by
the South African courts, until fairly
recently, that no custom or
contract flowing from a marriage by Muslim rites could be enforced
because the marriage was potentially
polygynous and hence contrary to
public policy (see, for example, the cases of
Seedat’s Executors
v The Master (Natal) (supra)
and
Ismail v Ismail (supra).
The anomalous
situation created by the application of the then prevailing council
housing policy was compounded by the subsequent
application of the
conditions of the so-called ‘
National Sales Campaign
’, in
terms of which only the tenants of council houses were given the
opportunity to purchase such houses on what appeared to have
been
extremely favourable terms. Thus, when the opportunity to purchase
the applicant’s home arose, the written instalment sale
agreement
was entered into (on 24 September 1990) between the City of Cape Town
(as seller) and the then tenant, the deceased (as
purchaser). As
indicated above, the applicant also signed the Deed of Sale,
ostensibly thereby consenting to the deceased purchasing
the
property, but the Deed incorrectly reflects that the applicant was
‘
married
’ to the deceased ‘
in community of property
’.
In
Ryland
v Edros (supra)
, Farlam J departed from the previous South
African jurisprudence by recognising and enforcing certain terms of
the ‘
contractual agreement
’ arising from the conclusion of
a
de facto
monogamous marriage by Muslim rites. Similarly, in
the
Amod
case (
supra
), Mahomed CJ recognised, for the
purposes of the dependant’s action, the contractually enforceable
right of a Muslim wife to be
maintained by her husband in the context
of a
de facto
monogamous Muslim marriage. In view of these
developments, it might have been open to the applicant to argue that
recognition should
be given to the fact that, in terms of the
marriage ‘
contract
’ between her and her deceased husband,
the tenancy of the property was an asset which she acquired prior to
her marriage to the
deceased and that, despite the subsequent
transfer of the tenancy – and indeed the subsequent sale and
transfer of the property
itself – into the name of the deceased/the
deceased’s estate, the value of the tenancy must be regarded as an
asset in her estate
to which she is presently entitled. In a rather
vague way, this does appear to have been one of the bases upon which
the applicant’s
claim to the property in the 1998 application was
based. Steyn AJ did not, however, in the course of her judgment make
any mention
of this possible cause of action, dealing only with the
applicant’s cause of action based on an alleged oral agreement
between
her and the deceased in terms of which the applicant would,
upon the deceased’s death, be the owner of the property.
This possible
cause of action was certainly not one upon which the applicant relied
in the proceedings before me, and it was not canvassed
in any way in
the arguments advanced by counsel for either side. It is also not
possible, on the papers before this Court, to even
make an attempt to
ascertain the value of the tenancy brought by the applicant into the
marriage (or possibly, the value of the rights
which the applicant
may have acquired by virtue of the tenancy) – although it would
appear that both the applicant and the deceased
were employed for
relatively lengthy periods during their marriage and that they both
contributed towards the household’s expenses,
including the rental
and later the purchase price of the property and the service charges
levied in respect of the property, the
proportion in which these
contributions were made is simply impossible to determine. This
whole saga illustrates vividly the anomalous
– and prejudicial –
consequences of the apparently arbitrary manner in which the State
recognised the applicant’s Muslim marriage
for the purposes of
transferring the tenancy of the property to her husband, on the one
hand, but now fails to recognise her Muslim
marriage for the purposes
of affording her the protection given to surviving ‘
spouses
’
in terms of the
Intestate Succession Act and
the Maintenance of
Surviving Spouses Act, on the other.
Counsel for
the first and second respondents submitted that a ruling by this
Court based on the constitutionality of possible interpretations
of
the relevant Acts or the Acts themselves was not ‘
feasible
’.
The submissions made by counsel in this regard may be construed as
an attempt to show that any discrimination caused by the
‘
narrow
’
interpretation of the word ‘
spouse
’ in the two Acts is
fair discrimination or, alternatively, that such discrimination may
be justified under the limitations clause
(section 33) of the interim
Constitution. Counsel rely, in the main, on the provisions of
section 14 of the interim Constitution,
subsection (1) of which
provides for the right to freedom of,
inter alia
, religion and
belief. Section 14(3) expressly permits the enactment of legislation
recognising (a) a system of personal and family
law adhered to by
persons professing a particular religion, and (b) the validity of
marriages concluded under a system of religious
law subject to
specified procedures. Furthermore, section 31 of the interim
Constitution entrenches the fundamental rights of every
person to
participate in the cultural life of his or her choice.
It is common
cause on the papers before me that, in terms of the Islamic law of
intestate succession, as governed by the Holy Qur’an,
read together
with the complilations of the practices and traditions of the Prophet
Mohammed, which form a body of commandments (‘
Shari’ah
’),
the applicant is ‘
entitled
’ to inherit one-eighth of the
deceased’s estate. This is confirmed by various authors on the
subject (see, for example, Cachalia
op cit
402-403 and
Rautenbach & Goolam (eds)
op cit
104). Moreover, it
appears from the papers before me (including the confirmatory
affidavit deposed to on behalf of the first and
second respondents by
one Shouket Allie, an expert on Islamic personal law) that, in terms
of Islamic law, the applicant is not entitled
to claim maintenance
from the deceased estate of her husband. Counsel for the first and
second respondents thus contended that the
constitutional relief
sought by the applicant would have the effect of negating the system
of inheritance law practised by those
who adhere to the system of
Islamic personal law in South Africa, and that such a result would be
contrary to ‘
the new ethos of tolerance, pluralism and religious
freedom which has consolidated itself in the new South African
society
’.
Counsel
attempted to draw a parallel between the present case and the recent
decision of the Supreme Court of Appeal in
Mthembu v Letsela &
Another
2000 (3) SA 867
(SCA). In that case, the appellant
(applicant) was the mother and guardian of a minor girl who was the
illegitimate child of the
deceased father. The father had died
leaving no will and, according to the African customary law of
succession, the father of the
deceased, as the oldest surviving male
relative, became the deceased’s heir. The applicant applied for an
order declaring,
inter alia,
that the customary law rule of
male primogeniture, as well as regulation 2 of the Regulations for
the Administration and Distribution
of the Estates of Deceased Blacks
(made in terms of section 23(10) of the Black Administration Act 38
of 1927 and promulgated under
Government Notice
R200 of 6
February 1987) which gives legislative recognition to the customary
law of succession, including the rule of male primogeniture),
were
invalid on the ground that they were inconsistent with the interim
Constitution. The applicant failed (twice) in the Transvaal
Provincial Division and, ultimately, the Supreme Court of Appeal
(like the court
a quo
) refused the invitation to develop the
customary law of succession, in terms of section 35(3) of the interim
Constitution, so as
to bring it into line with the principle of
equality enshrined in section 8 by allowing all descendants, whether
male or female,
legitimate or illegitimate, to inherit.
In his
judgment, Mpati AJA held that the interim Constitution was not
applicable, because the deceased had died prior to the date
upon
which that Constitution had come into operation, and that the case
before him was not one where, in a phrase taken from a
dictum
in
Du Plessis & Others v De Klerk & Another
[1996] ZACC 10
;
1996 (3) SA
850
(CC) at para
[20]
, ‘
the recognition and respecting of
previously acquired rights would be so grossly unjust and abhorrent,
in the light of the present
constitutional order, that they cannot be
countenanced
’ (see the
Mthembu
case at para [36] -
[40]). The Supreme Court of Appeal also stated (at para [40]) that
it ‘
would be ill-equipped to develop the rule for lack of
relevant information. Any development of the rule would be better
left to the
Legislature after a process of full investigation and
consultation, such as is currently being undertaken by the Law
Commission
.’
In rejecting
the appellant’s argument that the abovementioned regulation 2(e),
which gives legislative effect to the application
of customary rules
of succession on intestacy, is
ultra vires
at common law in
that, by discriminating gratuitously against women and girls,
children who are not eldest children, and illegitimate
children, it
is partial and unequal in its operation, the Supreme Court of Appeal
stated the following:
‘
[23] What needs to be stressed from the outset is that the
regulation in issue did not introduce something foreign to black
persons
… It merely gave legislative recognition to a principle or
system which had been in existence and followed, at least, for
decades.
It is not inconceivable that many blacks, even to this day,
would wish their estates to devolve in terms of black law and custom.
Section 23(3) of the Act
[the Black Administration Act 38 of
1927]
provides that:
“all
other property of whatsoever kind [excluding property referred to in
ss (1) and (2)] belonging to a black shall be capable
of being
devised by will.”
The existing law therefore enables blacks to
avoid the consequences of the application of the customary law of
succession if they
so wish. It is therefore within the power of
blacks to choose how they wish their estates to devolve. If they
take no steps to
alter the devolution of their estates (as is their
right), the resulting consequences cannot be assumed to be contrary
to their wishes
.’
The validity
of this reasoning has been subjected to criticism by,
inter alia
Keightley 2000
Annual Survey of South African Law
462 at
473-474. This writer rejects the assumption that black South
Africans choose to die intestate because they intend the customary
law of succession (which enjoys legislative recognition) to apply,
pointing out that:
‘
If one considers the circumstances of the majority of persons
in respect of whom African customary law applies, it is equally
likely
that such factors as lack of education, lack of access to
legal advice and general ignorance about legal matters have as much,
if
not more, of a role to play in their dying intestate as the role
played by the free choice or intent assumed by the court.
It is submitted that the issue before the court is not one of free
choice in the application of a discriminatory rule, but rather
one of
the application of a discriminatory rule
in the absence
of an indication of free choice. Thus the real question was whether
the default position of the law, ie the rule that applies in
the case
of a failure by a deceased person to indicate what his or her
intention is with regard to his or her estate, should be allowed
to
stand even though it is discriminatory in its nature and effect.
’
(For further
incisive discussion of the judgment of the Supreme Court of Appeal in
the
Mthembu
case (
supra
) see Himonga ‘Implementing
the rights of the child in African legal systems: the
Mthembu
journey in search of justice’ 2002 (9)
International Journal of
Children’s Rights
89 at 97-103.)
As was
ultimately conceded by counsel for the first and second respondents,
however, there is a very significant difference between
the situation
with which the Court was faced in the
Mthembu
case (
supra
)
and the present proceedings. It is this: while the African
customary law of intestate succession
is
recognised by
legislation, and hence enforceable, in South African law, the Islamic
law of intestate succession is
not
yet recognised by South
African law and any ‘
rights’
which the applicant may have
under the Islamic law of succession are not legally enforceable in a
South African court. Thus, when
a Muslim person dies intestate, his
or her estate devolves in accordance with the order of intestate
succession set out in the
Intestate Succession Act. The
Islamic
rules of succession can only be applied to the estate of a deceased
Muslim if they are contained in the will of such a person
(see
Rautenbach & Goolam
op cit
107-108). The effect of the
non-recognition of the applicant as a ‘
spouse
’ in terms of
the
Intestate Succession Act and
of the Maintenance of Surviving
Spouses Act is
not
to vest in her any enforceable rights to
claim an inheritance in terms of the Islamic law of intestate
succession. On the contrary,
as was conceded by respondents’
counsel, the deceased estate will devolve upon the descendants of the
deceased
per stirpes
in terms of the
Intestate Succession Act
– a result which itself bears no relation to the position under the
Islamic law of intestate succession (in terms of which a widow
in the
position of the applicant would inherit a one-eighth share of the
deceased estate, with the balance to be distributed among
the male
and female defendants in the ration of 2:1). For this reason, it was
(correctly, in my view) submitted by applicant’s
counsel that the
present case is
not
in fact about ‘
weighing
’ the
equality clause in the Constitution against the constitutional
imperatives of recognising cultural and religious pluralism,
promoting religious and cultural freedom, or applying an ‘
ethos
of tolerance
’. Nor is it about the recognition of Muslim
personal law or the compatibility of such law with the Bill of Rights
in the South
African Constitution. On the ‘
narrow
’
interpretation of the word ‘
spouse
’ in the relevant Acts,
coupled with the non-recognition of the Islamic law of succession,
inheritance ‘
rights
’ in Muslim families are
not
left to be regulated by Muslim personal law – rather, by not
recognising the applicant as a ‘
spouse
’ in terms of the
relevant Act, the estate of the deceased will be distributed in a
manner which is
both
inconsistent with Muslim personal law
and
which unfairly discriminates against the applicant by ignoring the
reality of her (
de facto
) monogamous marriage to her late
husband. To coin a phrase, should the applicant not succeed in the
present proceedings, she will
be in the most unfortunate position of
‘
falling between two stools
’. To my mind, this is clearly
unfair and cannot be tolerated in the new South African
constitutional order.
A further
argument relied upon by counsel for the respondents was based upon
the idea of judicial deference to the role of the Legislature
in
bringing about law reform. Counsel pointed out that, commencing in
1999, the South African Law Commission has undertaken a review
of
‘
Islamic Marriages and Related Matters
’ (Project 59) The
Law Commission has, in the process, published an Issue Paper (Issue
Paper 15, May 2000) and, after receiving
comment from a wide range of
interested and affected parties, a Discussion Paper (Discussion Paper
101, December 2001). The Discussion
Paper includes a draft Islamic
Marriages Bill which specifically amends
section 1
of the
Intestate
Succession Act and
section 1 of the Maintenance of Surviving Spouses
Act so as to include ‘
the spouse of an Islamic marriage
recognised in terms of the Islamic Marriages Act
’, as well as
‘
the spouse of a deceased person in a union recognised as a
marriage in accordance with the tenets of any religion
’
(clauses 16(3) and (4) of the draft Bill).
While the
Discussion Paper contains detailed discussion of, and proposals with
regard to the statutory recognition and regulation
of Muslim
marriages and the various incidents of such marriages, it is clear
that the Law Commission does not deal comprehensively
with the
Islamic law of succession, but proposes the abovementioned amendments
to the
Intestate Succession Act and
the Maintenance of Surviving
Spouses Act as an
interim measure
, so as to alleviate the
hardships endured by Muslim spouses who in the past have not enjoyed
recognition as ‘
spouses
’.
The Report
and final draft Bill in this investigation have yet to be approved by
the Law Commission. However, from a paper presented
by the
Chairperson of the Project Committee responsible for the
investigation (Navsa JA) at a recent conference (the Miller Du
Toit/Law
Faculty of the University of the Western Cape Family Law
Conference on ‘
Equality, Family Law and Family Law Processes
’,
April 2003), it would seem that no change is envisaged to the
proposed broadening of the definition of ‘
spouse
’ in the
Intestate Succession Act and
in the Maintenance of Surviving Spouses
Act so as to cover,
inter alia
, the spouse of an Islamic
marriage recognised in terms of the draft legislation. Once again,
it would appear that this will be proposed
as an interim measure,
pending a full investigation into the possible statutory recognition
and regulation of the Islamic law of
succession.
It is indeed
heartening that so much progress has been made by the Law Commission
in this important project. However, until such
time as any proposed
legislation has received the
imprimatur
of Parliament, persons
in the position of the applicant will continue to suffer the unfair
discrimination which I have set out above.
While it is clearly
entirely appropriate that the recognition and regulation of Islamic
personal and family law be dealt with by
the Legislature, rather than
by the courts – indeed, such legislation is expressly prefigured in
both the interim Constitution
(section 14(3)) and the final
Constitution (section 15(3)) – it does not follow that the courts
should, in the meantime, adopt
a supine attitude towards the
interpretation and application of existing statutes which have the
effect of violating the constitutional
rights of persons in the
position of the applicant.
In view of my
conclusion that the impugned provisions of the
Intestate Succession
Act and
the Maintenance of Surviving Spouses Act, as interpreted
above, are in breach of the equality clause (section 8) in the
interim Constitution,
the question remains as to whether the
provisions may be justified in terms of section 33. The relevant
part of section 33 reads
as follows:
‘
(1) The rights entrenched in this chapter may be limited by
law of general application, provided that such limitation –
shall be permissible only to the extent that it is –
reasonable; and
justifiable in an open and democratic society based on freedom
and equality; and
shall not negate the essential content of the right in question
…
’
It is well established in our constitutional jurisprudence that the
section 33 enquiry involves a proportionality assessment, in
which
the purpose, effects and importance of the infringing provisions are
weighed against the nature and extent of the infringement
caused.
The greater the infringement of the fundamental rights in question,
the more persuasive the grounds of justification will
have to be.
(See, for example,
S v Makwanyane & Another
[1995] ZACC 3
;
1995 (3) SA
391
(CC) at para
[104]
;
S v Bhulwana
;
S v Gwadiso
[1995] ZACC 11
;
1996
(1) SA 388
(CC) at paras [17] – [18];
Brink v Kitshoff NO
(
supra
)
[1996] ZACC 9
;
1996 (4) SA 197
(CC) at para
[46]
; and
National
Coalition for Gay and Lesbian Equality & Another v Minister of
Justice & Others
(
supra
) at paras [33] – [35]).
Apart from
the abovementioned submissions based, in the main, on section 14 of
the interim Constitution and on the idea of judicial
deference to the
role of the Legislature in bringing about law reform, the first and
second respondents did not specifically address
the question of
whether the impugned provisions of the relevant Acts are justifiable
in terms of section 33 of the interim Constitution.
As indicated
above, this application was not opposed by any of the other
respondents, including the Minister of Justice (the eighth
respondent), who is the Member of the National Executive responsible
for the administration of the two Acts. This attitude adopted
by the
various respondents is not, however, necessarily decisive of the
matter. As was pointed out by Heher J in
National Coalition for
Gay and Lesbian Equality & Others
v Minister of Justice &
Others
1998 (6) BCLR 726
(W) at 741A-B:
‘
A court faced with a matter of great public interest and
importance in which many potentially interested groups … have
received
no notice of the application, should do its best to place
itself in the position of the legislature and the law-enforcing arms
of
the State in order to determine, as best it can, what there is to
be said in favour of the legislation … The alternative is to
allow
laws to fall by default.
’
This is also
the approach that has been adopted by the Constitutional Court (see,
for example, the judgment of Ackermann J in
National Coalition for
Gay and Lesbian Equality & Another v Minister of Justice &
Others (supra)
at paras [5] –[6] and [33] – [57]; the
judgment of O’Regan J in
Dawood & Another; Shalabi &
Another; Thomas & Another v Minister of Home Affairs &
Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC) at paras [12] – [18] and [40] –
[58]; and the judgment of Skweyiya AJ in
Du Toit & Another v
Minister of Welfare and Population Development & Others
[2002] ZACC 20
;
2003
(2) SA 198
(CC) at para
[31]
).
I have found
that the impugned statutory provisions, as I have interpreted them,
do unfairly discriminate against persons in the position
of the
applicant on the grounds of religion, belief and culture. The
centrality and foundational nature of the right to equality,
in the
context of both the interim and the final Constitutions, have
repeatedly been emphasised by South African courts. So, for
example,
in
National Coalition for Gay and Lesbian Equality & Others v
Minister of Home Affairs & Others
1999 (3) SA 173
(C), Davis
J, quoting the remark of the Constitutional Court in
Fraser v
Children’s Court, Pretoria North (supra)
at para [20] to the
effect that equality ‘
lies at the very heart of the
Constitution
’, stated that, in the case of a breach of a
‘
foundational value
’ such as equality, the
onus
of
justification would be very difficult to discharge (at 186J-187A).
This is, in my view, particularly so in a case such as the
present
where, as a result of our past history of failing to afford
recognition and respect to the religious beliefs and practices
of,
inter alia
, members of the South African Muslim community,
persons in the position of the applicant have undeniably been the
victims of ‘
deep patterns of disadvantage
’ (see, for
example, Cachalia
op cit
399 and Rautenbach & Goolam
op
cit
113-115). It certainly cannot be gainsaid that the
non-recognition of marriages by Muslim rites has, in the past,
impaired the fundamental
human dignity of many such persons (see
Harksen v Lane NO & Others (supra)
at para [50]).
By
recognising the right of a surviving spouse to inherit from the
intestate estate of the deceased spouse, the
Intestate Succession Act
and
its predecessor, the Succession Act 13 of 1934, departed from the
South African common law. The common law rules of intestate
succession
deprived surviving spouses of any inheritance whatsoever
(see Corbett, Hofmeyr & Kahn
The Law of Succession in South
Africa
(2 ed, 2001) at 562-566). By recognising the surviving
spouse as an intestate heir, the Legislature acknowledged the reality
of the
contributions made by both spouses, during the existence of
the marriage, to each other’s estate and, at the same time, created
a mechanism for providing economically for the surviving spouse (and
in particular, it would seem, for surviving widows who constitute
a
socially vulnerable group) after the death of the deceased. The
promulgation of the Maintenance of Surviving Spouses Act 27 of
1990
appears to have been designed to serve the same purposes (see, in
this regard, Sinclair (assisted by Heaton)
op cit
178-179).
These are obviously important state objectives. However, restricting
the benefits afforded by such Acts only to the surviving
spouses of
marriages recognised as valid in South African law, coupled with the
non-recognition of marriages by Muslim rites and
all the
ramifications of such non-recognition, creates a situation where the
Muslim character of the applicant’s marriage to the
deceased,
despite its
de facto
monogamous character, withholds from that
marriage the status accorded by South African law to most Christian
and Jewish marriages,
and to all civil marriages, for the purpose of
the economic protection afforded by the law to surviving spouses.
Herein lies the
critical issue of discrimination in this case: the
situation in which the applicant and others in a like position find
themselves
results in their being economically impoverished in an
unfair way and, as discussed above, there does
not
presently
appear to be any justification for such unfair discrimination.
I have
already dealt in detail with, and rejected, the respondents’
attempt to ‘
justify
’ the ‘
narrow
’
interpretation of the word ‘
spouse
’ in the
Intestate
Succession Act and
the Maintenance of Surviving Spouses Act with
reference to section 14 of the interim Constitution, on the one hand
and the idea of
judicial deference to the Legislature, on the other.
I reiterate that, until such time as Muslim personal law,
particularly the
Muslim law of succession,
has
been recognised
by the Legislature and regulated in a manner consistent with the
values underlying the South African Constitution,
there is in my view
no justification for the limitation of the equality rights of persons
in the position of the applicant, which
limitation flows from the
impugned provisions of the relevant Acts – such provisions are
therefore, to the extent alleged by the
applicant, inconsistent with
the Constitution and accordingly invalid.
I am fully
aware that, by reaching this conclusion, I am unfortunately
contributing to what has been called the ‘
fractured landscape
’
of South African family law. In the words of June Sinclair (
op
cit
page 28) –
‘
The tension between nation-building through unifying legal
rules to conform as far as possible to one standard, whilst
simultaneously
respecting and celebrating the plural nature of our
multi-cultural society … manifests itself frequently in undue
complexity, testified
to by the myriad of rules that regulate the
intimate relationships of people of different races, different
cultures, different religions,
different sexual proclivities,
different marital statuses and different conceptions of
“family”,
often merely and arbitrarily according to the date upon which they
entered into these relationships. The result is a frighteningly
fractured family-law landscape, a canvas showing sunshine and blue
sky, but a fragmented rainbow composed of starkly separated shades.
’
It may well
be that the ultimate solution to this tension and resulting
fragmentation will be the promulgation of a comprehensive
‘
Family
Code
’, as is suggested by Sinclair. However, in the interim,
the kind of violation of constitutional rights thrown into relief by
the
facts of the present case cannot be tolerated and incremental
remedies must be found.
The
appropriate remedy
As was correctly submitted by counsel for the applicant, the remedial
jurisdiction of this court in this case is determined by the
provisions of the final Constitution, being the Constitution in force
at the time of the hearing (see, in this regard,
Fedsure Life
Assurance Ltd & Others v Greater Johannesburg Metropolitan
Council & Others
1991 (1) SA 374
(CC) at para [113], and
First National Bank of South Africa Ltd t/a Wesbank v Commissioner
South African Revenue Service & Another
2001 (3) SA 310
(C)
at 315C-G).
Section 172
of the final Constitution provides that when deciding a
constitutional matter within its power, a court:
‘
(a) must declare that any law or conduct that is inconsistent
to the Constitution is invalid to the extent of its inconsistency;
and
may make any order that is just and equitable, including –
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity for any
period and on any condition, to allow the competent authority to
correct
the defect.
’
Section
172(2)(a) provides that:
‘[t]
he Supreme Court of Appeal, a High Court or a court of
similar status may make an order concerning the constitutional
validity of
an Act of Parliament, a Provincial Act or any conduct by
the President, but an order of Constitutional invalidity has no force
unless
it is confirmed by the Constitutional Court
’.
In terms of
section 38 of the final Constitution, a court which has found that a
right in the Bill of Rights has been infringed or
threatened and that
this ‘
limitation
’ does not meet the test for
justification, ‘
may grant appropriate relief, including a
declaration of rights
’. Section 7(4)(a) of the interim
Constitution was the predecessor to section 38, and is in all
material respects identical thereto.
A detailed
discussion of the formulation of appropriate remedies in respect of
an infringement of constitutional rights is contained
in,
inter
alia
, the judgment of Ackermann J in
National Coalition for
Gay and Lesbian Equality & Others v Minister of Home Affairs &
Others (supra)
at paras [63] – [88]. I do not propose to
repeat this discussion. Suffice it to say that, as held by the
Constitutional Court
in
Fose v Minister of Safety & Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC):
‘
[19] Appropriate relief will in essence be relief that is
required to protect and enforce the Constitution. Depending on the
circumstances
of each particular case the relief may be a declaration
of rights, an interdict, a
mandamus
or such
other relief as may be required to ensure that the rights enshrined
in the Constitution are protected and enforced. If it
is necessary
to do so, the courts may even have to fashion new remedies to secure
the protection and enforcement of these all important
rights …
[69] … In our context an appropriate remedy must mean an
effective remedy, for without effective remedies for breach, the
values
underlying and the rights entrenched in the Constitution
cannot properly be upheld or enhanced. Particularly in a country
where
so few have the means to enforce their rights through the
courts, it is essential that on those occasions when the legal
process
does establish that an infringement of an entrenched right
has occurred, it be effectively vindicated. The courts have a
particular
responsibility in this regard and are obliged to
“forge
new tools”
and shape innovative remedies, if needs be, to
achieve this goal
.’
I am in agreement with the submissions made by applicant’s counsel
to the effect that, in the present case, appropriate relief
demands
not merely a declaration that the challenged provisions are
unconstitutional, but also the ancillary relief of ‘
reading
into
’ the challenged provisions wording that will cure the
constitutional defect and provide the applicant with meaningful
relief.
This type of relief was recognised as permissible by the
Constitutional Court in
National Coalition for Gay and Lesbian
Equality & Others v Minister of Home Affairs & Others
(supra),
where Ackermann J made the following salient comments:
‘
[74] The severance of words from a statutory provision and
reading words into the provision are closely related remedial powers
of
the Court. In deciding whether words should be severed from a
provision or whether words should be read into one, a Court pays
careful
attention first, to the need to ensure that the provision
which results from the severance or reading words into a statute is
consistent
with the Constitution and its fundamental values and,
secondly, that the result achieved would interfere with the laws
adopted by
the Legislature as little as possible. In our society
where the statute books still contain many provisions enacted by a
Parliament
not concerned with the protection of human rights, the
first consideration will in those cases often weigh more heavily than
the
second.
[75] In deciding to read words into a statute, a Court should also
bear in mind that it will not be appropriate to read words in,
unless
in so doing a Court can define with sufficient precision how the
statute ought to be extended in order to comply with the
Constitution. Moreover, when reading in (as when severing) a Court
should endeavour to be as faithful as possible to the legislature
scheme within the constraints of the Constitution …
[76] It should also be borne in mind that whether the remedy a
Court grants is one striking down, wholly or in part; or reading
into
or extending the text, its choice is not final. Legislatures
are able, within constitutional limits, to amend the remedy, whether
by re-enacting equal benefits, further extending benefits, reducing
them, amending them,
“fine-tuning”
them, or abolishing
them. Thus they can exercise final control over the nature and
extent of the benefits.
’
To my mind, pending the
statutory recognition and application of the Islamic law of
succession in a manner which is consistent with
the fundamental
values underpinning the South African constitutional order, the only
appropriate way in which the applicant and others
in a like position
can be afforded effective relief is by a suitable reading-in order.
The relief sought by the applicant in prayers
2.2 and 4.2 of the
Notice of Motion does define with sufficient clarity and precision
how the relevant statutes must be extended
in order to comply with
the Constitution and is, to the greatest extent possible, faithful to
the legislative scheme of these statutes.
Finally, in
order to preserve the interests of finality in respect of the winding
up of deceased estates and thus avoid undue disruption,
the
retrospective effect of the order which I propose to make in respect
of the
Intestate Succession Act must
be limited to deceased intestate
estates which have not been finally would up, as foreshadowed by
prayer 2.3 in the Notice of Motion
(cf. in this regard, the order of
the Constitutional Court in
Brink v Kitshoff NO (supra)
at
para [60]).
The applicant
did not ask for costs in the Notice of Motion or at any other stage
of these proceedings. No order as to costs will
therefore be made.
The
order
For the reasons set out
above, I make the following orders:
The omission from
section 1(4)
of the
Intestate Succession Act
81 of 1987
of the following definition is declared to be
unconstitutional and invalid:
“ ‘
spouse
’
shall include a husband or wife married in accordance with Muslim
rites in a
de facto
monogamous union”.
Section 1(4)
of the
Intestate Succession Act 81 of 1987
is to
be read as though it included the following paragraph after
paragraph (f):
“
(g)
‘
spouse
’
shall include a husband or wife married in accordance with Muslim
rites in a
de facto
monogamous union.”
The orders in paragraphs 1 and 2 above shall have no effect on
the validity of any acts performed in respect of the administration
of an intestate estate that has been finally wound up by the date of
this order.
The omission from the definition of
“survivor”
in section 1 of the Maintenance of Surviving Spouses Act
27 of 1990 of the words
“and includes the surviving
husband or wife of a
de facto
monogamous union
solemnised in accordance with Muslim rites”
at the end
of the existing definition, is declared to be unconstitutional and
invalid.
The definition of
“survivor”
in
section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 is
to be read as if it included the following words after the
words
“dissolved by death”:
“
and
includes the surviving husband or wife of a
de
facto
monogamous union solemnised in accordance with
Muslim rites.”
…………………………………….
B J VAN HEERDEN