Daniels v Campbell and Others (CCT 40/ 03) [2004] ZACC 14; 2004 (5) SA 331 (CC); 2004 (7) BCLR 735 (CC) (11 March 2004)

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[2004] ZACC 14
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Daniels v Campbell and Others (CCT 40/ 03) [2004] ZACC 14; 2004 (5) SA 331 (CC); 2004 (7) BCLR 735 (CC) (11 March 2004)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 40/03
JULEIGA
DANIELS

Applicant
versus
ROBIN
GRIEVE
CAMPBELL
NO

First Respondent
MELISSA
FOURIE
NO

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 AND
CONSTITUTIONAL
DEVELOPMENT

Eighth Respondent
REGISTRAR
OF
DEEDS

Ninth Respondent
MASTER OF
THE HIGH
COURT

Tenth Respondent
Heard
on
:           6 November
2003
Decided
on
:           11 March 2004
JUDGMENT
SACHS J:
[1]
This case concerns an
application for confirmation of an order,
[1]
and, in the alternative, an
appeal against the order
[2]
made by the High Court in Cape
Town (the High Court) declaring certain provisions of the Intestate Succession
Act
[3]
and the Maintenance of
Surviving Spouses Act
[4]
unconstitutional and invalid
for failing to include persons married according to Muslim rites as spouses for
the purposes
of these Acts.
[2]
Section 1 of the
Intestate Succession Act states:
“1.
Intestate succession
— (1) If after the commencement of this Act a
person (hereinafter referred to as the “deceased”) dies intestate, either
wholly
or in part, and —
(a)
is
survived by a spouse, but not by a descendant, such
spouse shall           inherit
the
intestate estate;
(b)
is
survived by a descendant, but not by a spouse, such
descendant            shall

inherit the intestate estate;
(c)
is
survived by a spouse as well as a descendant —
(i)
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, whichever
is the greater;
and
(ii)
such
descendant shall inherit the residue (if any) of the
intestate estate;
(d)        .
. . . ”
Section
2(1) of the Maintenance of Surviving Spouses Act states:
“2.
Claim for maintenance against estate of deceased spouse
— (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 in so far 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 “survivor” is defined
as “the surviving spouse in a marriage
dissolved by death”.  Although both
Acts confer rights on spouses who are predeceased by their husbands or wives,
in neither
is the word “spouse” defined.
[3]
The applicant married
her now deceased husband by Muslim rites in 1977.  The marriage, which was
at all times monogamous, was
not solemnised by a marriage officer appointed in
terms of the Marriage Act.
[5]
No children were born of this marriage, though the applicant and her deceased
husband had children from previous marriages.
The deceased died intestate
in 1994.
[4]
The main asset in the
deceased estate is a modest house in a low-income suburb of
Cape Town
.
[6]
The applicant is a domestic worker who has supplemented her income by selling
goods from in front of her house.  She
resides on the property, having
lived there for nearly thirty years.  In July 1969 her first husband, to
whom she was also
married by Muslim rites, submitted a written application to
the City of
Cape Town
to rent a council dwelling.  In 1976, after she and her first husband were
divorced, the City of
Cape Town
allocated the dwelling to her in her own name.  The applicant and her
children were in occupation of the property when she
married the deceased by
Muslim rites in 1977.  She informed the City of
Cape Town
of her remarriage and furnished it
with a copy of her marriage certificate.  In accordance with its then
policy of registering
the principal breadwinner of the family as the tenant,
the City of
Cape Town
transferred the tenancy of the property to the deceased.
[5]
Tenants of council houses
were later given the opportunity to purchase such houses, and in 1990 the
deceased entered into an instalment-sale
agreement to purchase the house from
the City of
Cape Town
.
The applicant, who had contributed substantially towards the household expenses,
including the rent and the service charges,
as well as towards the purchase
price of the property, also signed the deed of sale.
[7]
When the deceased died the outstanding balance owing on the purchase price of
the property was written off in terms of state
policy, and the property was
transferred to the estate of the deceased in 1998.
[6]
The second respondent
and first respondent were thereafter respectively appointed in 2000 and 2001 by
the tenth respondent, the
Master of the High Court (the Master) as the
executors,
[8]
the
second respondent as executor of the estate of the deceased, and the first
respondent as executor of the estate of a deceased
son of the latter from his
previous marriage.  I will refer to them as the executors.
[7]
The third to seventh
respondents are interested family members.  The eighth respondent is the
Minister of Justice and Constitutional
Development (the Minister).  The
ninth respondent is the Registrar of Deeds and the tenth respondent is the
Master.
None of these respondents oppose the application.
[8]
The applicant was told
by the Master that she could not inherit from the estate of the deceased
because she had been married in
terms of Muslim rites, and therefore was not a
“surviving spouse”.  A claim for maintenance against the estate was
rejected
on the same basis.  With the support of the Women’s Legal Centre,
the applicant approached the High Court for an order declaring
that she was a
spouse of the deceased and his survivor.  In the alternative, she asked
for the Acts to be declared unconstitutional
to the extent that they
discriminated unfairly against Muslim marriages.
Proceedings
in the High Court
[9]
The High Court
reluctantly came to the conclusion that the applicant was not a “spouse” or
“survivor” for the purposes of
the Acts.  This was because her marriage to
the deceased was not recognised as a valid marriage in terms of South African
law.  Van Heerden J held that:
“[M]arriages
by Muslim rites have . . . not been recognised by South African courts as valid
. . . marriages, firstly, because
such marriages are potentially polygamous 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”.
[9]
[10]
In reaching her
conclusion, van Heerden J considered herself bound by the decisions of this
Court on the interpretation of the word
“spouse” in the
National Coalition
(2)
[10]
case
and in
Satchwell
.
[11]
She was of the view that these cases made it clear that the term “spouse” only
applied to parties to a marriage recognised
as valid in terms of South African
law.
[12]
A second consideration was the existence of a number of statutes where express
provision for the inclusion of the parties
to a Muslim union had been made, for
example – the Estate Duty Act
[13]
as
amended.  By explicitly creating exceptions to the general rule that the
only marriages to which legal consequences
are attached are those solemnised in
accordance with the provisions of the Marriage Act, these statutes supported
the view that
in the absence of any such deeming or interpretative provision,
the word “spouse” must be given its “traditional, limited
meaning”.  In
her view, accordingly, the statutes as they stand could not be interpreted to
include parties to Muslim marriages
under the term “spouses”.
Amendments to provide the broader meaning lay in the hands of the
legislature.
[14]
[11]
The learned judge went
on to consider the constitutional consequences of such an interpretation.
After a comprehensive contextual
analysis of the impact of the Acts, she
concluded that the interplay between the applicant’s religious beliefs and the
cultural
practices in her community – and the failure of South African law
properly to accommodate such beliefs and practices – resulted
in the applicant
being denied relief.
[15]
As a result, the omission of people such as the applicant from the protection
provided by the
statutes,
violated their rights to
equality and was unconstitutional and invalid.  The learned judge held
that until such time as Muslim
personal law of succession was recognised by the
legislature and regulated in a manner consistent with the values underlying the

South African Constitution, there was no justification for the limitation of
the equality rights.
[16]
Following the approach adopted by this Court in
National Coalition
(2),
[17]
she
accordingly “read-in” words to remedy the defect.
[12]
The order of the High
Court that is before us for confirmation reads as follows:
“1.
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”.
2.
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.”
3. 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.
4. 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.
5. 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.’”
[18]
[13]
The applicant was
concerned that this Court might refuse to confirm the declaration of
invalidity,
[19]
and
that she might end up without the relief she desired.  She accordingly
applied in the High Court for leave to appeal
against the interpretation given
to the word “spouse”, should the application for confirmation fail.
[20]
Binns-Ward AJ, who heard the application, indicated that a contextual and
purposive reading of the Acts could well lead to
this Court deciding to refuse
to confirm the orders of constitutional invalidity, on the grounds that the
proper construction of
the statutes allows for the applicant to be recognised
as a “spouse” or “survivor”.  In such a case there might not
be a need for
an appeal because the reasoning of the Court would itself indicate that parties
to Muslim marriages were covered
by the Acts.
[21]
He nevertheless granted conditional leave to appeal as requested by the
applicant.
[14]
To avoid uncertainty it
should be made clear that an appeal to this Court against a declaration of
constitutional invalidity made
by a competent court under section 172(2)(a) of
the Constitution lies as of right in terms of section 172(2)(d) and does not
require
leave of the court making the declaration or this Court.
[22]
[15]
The applicant’s appeal
was lodged nine days late.  Condonation for this delay which caused no
prejudice has been requested,
has not been opposed, and is granted.
Argument
in this Court
[16]
Counsel for the
applicant relied primarily on the appeal rather than on the application for
confirmation.  His principal argument
was that the word “spouse” should be
interpreted so as to include persons married according to Muslim rites; not
only did the
literal meaning of the word “spouse” include people in the
position of the applicant, but also a purposive interpretation of
the Acts
pointed in that direction.  Any interpretation which gave a narrow meaning
to the word “spouse” so as to exclude
parties to a Muslim marriage resulted in
unfair discrimination on grounds of marital status, religious practices and
culture and
violated the right to dignity.  An interpretation consistent
with the Constitution should be preferred to one which led to
invalidity.
[17]
The Minister supported
confirmation of the High Court order, and was not in favour of interpreting the
word “spouse” so as to
include a party to a Muslim marriage.
[18]
The executors, on the
other hand, contended that the word “spouse” did not cover parties to a Muslim
marriage, and further,
that what they regarded as the correct interpretation of
the Acts did not render the provisions unconstitutional.  In their
view no
violation of the right to equality was involved.  They argued that Imams
are not barred from being registered as marriage
officers under the Marriage
Act and therefore are able to conclude a valid marriage.
[23]
They contended further that the Marriage Act constituted legislation envisaged
in the interim Constitution
[24]
recognising
the validity of marriages concluded under systems of religious law.
Muslim couples therefore have the choice
to conclude marriages that are
recognised in terms of South African law.  The executors acknowledged that
if their argument
was upheld, the applicant in the present matter would end up
with no relief at all.  She would not be entitled to the protection

offered by the Acts because she was not lawfully married and therefore not a
spouse.  Nor could she secure any benefits conferred
under Muslim personal
law, because such law was not recognised and enforceable in the courts.
They argued, however, that
this unfortunate consequence was a result of her
failure to avail herself of her rights under the Marriage Act, and not because

of any defects in the Acts under consideration.  In their view this Court
should refuse to confirm the order of the
Cape
High Court
and dismiss the appeal.  Any change to be made concerning the status of
persons in the situation of the applicant lay with
the legislature.
The
meaning of “spouse”
[19]
The word “spouse” in
its ordinary meaning includes parties to a Muslim marriage.  Such a
reading is not linguistically
strained.  On the contrary, it corresponds
to the way the word is generally understood and used.  It is far more
awkward
from a linguistic point of view to exclude parties to a Muslim marriage
from the word “spouse” than to include them.  Such
exclusion as was
effected in the past did not flow from courts giving the word “spouse” its
ordinary meaning.  Rather,
it emanated from a linguistically strained use
of the word flowing from a culturally and racially hegemonic appropriation of
it.
Such interpretation owed more to the artifice of prejudice
[25]
than
to the dictates of the English language.  Both in intent and impact the
restricted interpretation was discriminatory,
expressly exalting a particular
concept of marriage, flowing initially from a particular world-view, as the
ideal against which
Muslim marriages were measured and found to be wanting.
[20]
Discriminatory interpretations
deeply injurious to those negatively affected
[26]
were
in the conditions of the time widely accepted in the courts.  They are no
longer sustainable in the light of our
Constitution.  In
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors
(Pty) Ltd and Others: In Re Hyundai
Motor Distributors (Pty) Ltd and Others v
Smit NO and Others
[27]
Langa
DP stated that:
“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.
. . . 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 purport of an Act and to read
the provisions of the legislation, so far as is possible, in conformity with
the Constitution.”
[28]
[21]
In
the present matter the constitutional values of equality, tolerance and respect
for diversity point strongly in favour of giving
the word “spouse” a broad and
inclusive construction, the more so when it corresponds with the ordinary
meaning of the word.
The issue is not whether to impose some degree of
strain on the language in order to achieve a constitutionally acceptable
result.
It is whether to remove the strain imposed by past discriminatory
interpretations in favour of its ordinary meaning.
[29]
[22]
A
contextual analysis of the manner in which the word “spouse” is used in the two
Acts reinforces the justification for this
approach.  An important purpose
of the statutes is to provide relief to a particularly vulnerable section of
the population,
namely, widows.  Although the Acts are linguistically
gender-neutral, it is clear that in substantive terms they benefit mainly

widows rather than widowers.  The value of non-sexism is foundational to
our Constitution
[30]
and
requires a hard look at the reality of the lives that women have been compelled
to lead by law and legally-backed social
practices.  This, in turn,
necessitates acknowledging the constitutional goal of achieving substantive
equality between men
and women.
[31]
The
reality has been and still in large measure continues to be that in our
patriarchal culture men find it easier than women
to receive income and acquire
property.  Moreover, social and institutional practice has been to
register homes in the name
of the male “heads of households”, as was done by
the Council in the present matter.  Widows for whom no provision had
been
made by will or other settlement were not protected by the common law.
[32]
The
result was that their bereavement was compounded by dependence and potential
homelessness – hence the statutes.
[23]
The
present case illustrates well why statutory protection was deemed
necessary.  A long-standing dispute between the applicant
and some of the
descendants of the deceased has resulted in her facing eviction from the home
that was originally hers, and in
which she has lived for three decades.
The applicant signed her affidavit with a cross.  She does not belong to
that
section of society that has lawyers at hand to draft wills and arrange
property settlements.  In any event, it did not lie
in her hands to compel
the deceased to make provision for her.  The Acts were introduced to
guarantee what was in effect a
widow’s portion on intestacy as well as a claim
against the estate for maintenance.  The objective of the Acts was to
ensure
that widows would receive at least a child’s share instead of their
being precariously dependent on family benevolence.
There seems to be no
reason why the equitable principles underlying the statutes should not apply as
tellingly in the case of Muslim
widows as they do to widows whose marriages
have been formally solemnised under the Marriage Act.  The manifest
purpose of
the Acts would be frustrated rather than furthered if widows were to
be excluded from the protection the Acts offer, just because
the legal form of
their marriage happened to accord with Muslim tradition and not the Marriage
Act.
[24]
This
was the reasoning underlying the decision in
Amod
,
[33]
which
concerned the rights of a Muslim widow to claim relief from the Multilateral
Motor Vehicle Accidents Fund
.
Mahomed CJ held that the insistence
that the duty of support which a serious
de facto
monogamous marriage
imposed on the husband was not worthy of protection, could only be justified on
the basis that the only duty
of support which the law will protect in such
circumstances was a duty flowing from a marriage solemnised and recognised by
one
faith or philosophy to the exclusion of others.
[34]
This
was inconsistent with the new ethos of tolerance, pluralism and religious
freedom which had consolidated itself even
before the adoption of the interim
Constitution.
[35]
Dealing
with the argument that Muslim couples suffered no special discrimination
because they were free to solemnise their
marriages in terms of the Marriage
Act and thus acquire for their relationship the status of a civil marriage, he
held that for
purposes of the dependant's action the decisive issue was not
whether the dependant concerned was or was not lawfully married to
the deceased
but whether the deceased was under a legal duty to support the dependant in a
relationship which deserved recognition
and protection at common law.
[36]
In the
English case of
Din v National Assistance Board
[37]
Salmon L
J reasoned along similar lines, stating that:
“When a question arises, of recognising a foreign marriage or of
construing the word ‘wife’ in a statute, everything in my
view depends on the
purpose for which the marriage is to be recognised and the objects of the
statute.  I ask myself first
of all: is there any good reason why the
appellant’s wife and children should not be recognised as his wife and children
for
the purpose of the National Assistance Act, 1948?  I can find no such
reason, and every reason in common-sense and justice
why they should be so
recognised.”
[38]
[25]
The
same considerations apply in the present matter.  The central question is
not whether the applicant was lawfully married
to the deceased, but whether the
protection which the Acts intended widows to enjoy should be withheld from
relationships such
as hers.  Put another way, it is not whether it had
been open to the applicant to solemnise her marriage under the Marriage
Act,
but whether, in terms of “common sense and justice” and the values of our
Constitution, the objectives of the Acts would
best be furthered by including
or excluding her from the protection provided.  The answer, as in
Amod
,
must be in favour of the interpretation which is consistent with the ordinary
meaning of the word “spouse”, aligns itself
with the spirit of the Constitution
and furthers the objectives of the Acts.
[26]
It
is important to underline the limited effect of such an inclusive
interpretation.  As in
Amod
, it eliminates a discriminatory
application of particular statutes without implying a general recognition of
the consequences of
Muslim marriages for other purposes.  Accordingly, the
recognition which it accords to the dignity and status of Muslim marriages
for
a particular statutory purpose, does not have any implications for the wider
question of what legislative processes must be
followed before aspects of the
shariah
may be recognised as an enforceable source under South African law.
[39]
[27]
The
fact that many statutes adopted in recent times
[40]
dealing
with married persons expressly include parties to Muslim unions under their
provisions is indicative of a new approach
consistent with constitutional
values.  The existence of such provisions in other statutes does not imply
that their absence
in the Acts before us has special significance.  The
Intestate Succession Act and
the Maintenance of Surviving Spouses Act were both
last amended before the era of constitutional democracy arrived.  The fact

that the new democratic Parliament has not as yet included Muslim marriages
expressly within the purview of the protection granted
by the Acts,
accordingly, cannot be interpreted so as to exclude them contrary to the
spirit, purport and objects of the Constitution.
[28]
I
turn now to the reasoning which caused van Heerden J “with considerable
reluctance” to hold that Muslim husbands and wives
could not for the purposes
of the Acts be considered as spouses.  The issue before her was whether
the Court could give an
extensive interpretation to the word spouse, and so
avoid discriminatory impact, or whether the word was not reasonably capable
of
such interpretation, with the result that the discriminatory effect of the Acts
could only be cured by a declaration of invalidity
coupled with a “reading-in”
to include Muslim marriage partners.  In this respect she felt she was
bound by decisions
of this Court to the effect that the undefined word “spouse”
in the Aliens Control Act
[41]
and the
Judges’ Remuneration and Conditions of Employment Act
[42]
respectively,
could not be extended to include permanent same-sex life partners.  She
states that in the
National Coalition case
(2):
“. . . 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 1996, 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 interpretive
arguments relied upon by
the applicants in the present proceedings, it is important to note that
Ackermann J went further by stating
(at paragraph [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” .
. . .”
[43]
She then goes on to add:
“. . . i.e. marriages that are solemnised in
accordance with the provisions of the Marriage Act 25 of 1961.”
[44]
She continues by stating that the interpretive point of
departure in
Satchwell
was the same, quoting the following passage from
the judgment of Madala J:
“In the circumstances the ordinary wording of the provisions [of the
Judges’ Remuneration and Conditions of Employment Act] 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.”
[45]
[29]
In
my view, a proper reading of
National Coalition
(2) and
Satchwell
does not lead to the conclusion that partners to a Muslim marriage do not fall
under the term “spouse”.
[30]
In
the first place, there is no express statement in either judgment referring to
solemnisation under the Marriage Act as a pre-condition
for parties to be
considered to be spouses.  For the purposes of the statutes being
construed in those cases, it was in fact
not necessary to go beyond holding
that permanent same-sex life partners could not reasonably be included in the
term “spouse”;
as Ackermann J pointed out, the ordinary meaning of the word
“spouse” connoted a “married person; a wife, a husband”.
The difficulty confronting
permanent same-sex life partners on this score, then, was that they could not
ordinarily be considered
to be married persons, husbands and wives.  The
position of people married by Muslim rites in this respect is different.

They fall within the ordinary meaning of the word spouse.  They are
married to each other, wife and husband.  As Mahomed
CJ pointed out in
Amod
:
“. . .
the
Islamic marriage between the
appellant and the deceased was a
de facto
monogamous marriage; . . . it
was contracted according to the tenets of a major religion; and . . . it
involved ‘a very public
ceremony, special formalities and onerous obligations
for both parents in terms of the relevant rules of Islamic law applicable’.”
[46]
[31]
Secondly,
the judgments in both cases were careful to underline that the word “spouse”
had to be interpreted in the context
of the particular statutes under
consideration.  In both cases the judgments indicated that there was
nothing in the context
in which the word “spouse” was used to suggest a wider
meaning than married persons.  In
National Coalition
(2)
it
was indicated that there was a significant textual pointer against the more
extensive use of the word spouse.  Ackermann
J stated that:
“Had the word ‘spouse’ been used in a more extensive sense in s 25(5) of
the Act, it would have been unnecessary to provide
specifically in s 1(1) that
marriage ‘includes a customary union’.  It is significant that the
definition of ‘customary
union’ namely:
‘. . . the association of
a man and a woman in a conjugal relationship according to indigenous law and
custom, where neither the
man nor the woman is party to a subsisting marriage,
which is recognised by the Minister in terms of ss (2);’
is
based on an opposite-sex relationship.”
[47]
In the present matter, however, no such textual pointers
in favour of a limited construction exist.  On the contrary, both the

clear wording of the Acts and their purpose point strongly in favour of an
extensive interpretation of the word “spouse”.
[32]
Thirdly,
it cannot be said that Muslim marriages lack legal recognition in the way that
permanent same-sex unions have done.
Statutes dealing with a great
variety of social and economic questions have given express recognition to
Muslim unions, treating
parties to them as married persons.
[48]
[33]
Judgments
should not be read as though they are statutes where every word is presumed to
have a precise and special meaning.
What matters is the reasoning that
lies at the heart of the decision and that, as a matter of legal logic, leads
to the order made.
Central to the determinations in
National Coalition
(2) and
Satchwell
, was a legal finding that it would place an
unacceptable degree of strain on the word “spouse” to include within its ambit
parties to a permanent same-sex life partnership.  Thus, in
Satchwell
Madala
J pointed to members of such same-sex partnerships as well as to heterosexual
couples who chose not to marry, as belonging
to a class of persons who could
not be considered to be “spouses”.  The crucial distinction underlying the
two judgments
is the one made between married and unmarried
persons,
not that
between persons married under the Marriage Act and those
not.  There is nothing to indicate that the attention of the Court
in
either case was directed to marriages such as those contracted by the
applicant.  I accordingly do not agree that the two
cases serve as
authority for denying to parties to Muslim marriages the protection offered by
the Acts.  Ngcobo J has come
to the same conclusion.  I would like to
express my agreement with the supplementary reasons he has advanced.
[34]
The
fact that permanent same-sex life partnerships could not be included in the
term “spouse” affected the manner in which the
resulting discriminatory impact
of the statutes under consideration was remedied in
National Coalition
(2) and
Satchwell
.  Once it was established that members of
permanent same-sex life partnerships, although not classifiable as married
people,
merited the same recognition as is accorded by the law to married
persons, the indicated remedy was to declare the unconstitutionality
and
read-in a provision to cure the defect.  Thus, recognition of the right to
equality and dignity of permanent same-sex
life partners was achieved not by
means of imposing undue strain on the word “spouse”, but by pointing to the
constitutionally
unacceptable manner in which the statutes fail to treat them
on a par with married people.
Such partners were accordingly
equated with, rather than subsumed into the concept of spouses.  The
under-inclusiveness in
their regard was cured by adding to the category of
entitlement so as to avoid unconstitutionality.  In the present matter
the
potential under-inclusiveness and consequent discriminatory impact is avoided
simply by correcting the interpretation.
It is not necessary to follow
the process the High Court felt compelled to do, that is, of making a
declaration of invalidity coupled
with a curative remedial reading-in.
[35]
Acceptance
of the fact that the word “spouse” covers people married by Muslim rites makes
it unnecessary to deal with the submission
advanced by the executors that the
law did not discriminate against the applicant because in terms of the Marriage
Act she could
have solemnised her marriage before an Imam recognised as a
marriage officer.  The question of discrimination no longer arises
once
Muslim husbands and wives are able to enjoy the benefits provided by the Acts.
[36]
It
was made clear on the papers and in argument that the effect of the declaration
sought was to cover the situation of the applicant
who was a party to a Muslim
marriage that was monogamous.  This Court is not called upon to deal with
the complex range of
questions concerning polygamous Muslim marriages.
[37]
In
the result, the Acts fall to be interpreted so as to include a party to a
monogamous Muslim marriage as a spouse.  So interpreted,
they are not
invalid and unconstitutional.  The order of the High Court should
accordingly not be confirmed.  Instead,
the appeal must be upheld and a declaration
made indicating to the executors and all interested parties that the applicant
is a
“spouse” and a “survivor” under the Acts.
[38]
The
High Court declaration of invalidity coupled with a remedial reading-in was
expressly declared not to affect estates already
wound up.  It is not
necessary for the purposes of this case to deal with the possible retrospective
effect of upholding the
appeal.  No pronouncement is made on whether in
the absence of a declaration of
invalidity,
this Court
is empowered to limit the retrospective effect of the declaration.  Should
problems concerning retrospectivity
arise, they stand to be dealt with on a
case by case basis.
[39]
No
award of costs was asked for.
The Order
[40]
The
following order is made:
1.
The order made by the High Court is set aside and replaced with the following

order:
“(a)
It
is declared that:
(i)
the
word “spouse” as used in the
Intestate Succession Act 81 of 1987
, includes the
surviving partner to a monogamous Muslim marriage;
(ii)
the
word “survivor” as used in the Maintenance of Surviving Spouses Act 27 of 1990,
includes the surviving partner to a monogamous
Muslim marriage.
(b)
It is declared that:
(i)
the
applicant is, for the purpose of the
Intestate Succession Act 81 of 1987
, a
“spouse”;
(ii)
the
applicant is, for purposes of the Maintenance of
Surviving Spouses Act 27 of 1990, a “survivor”.
(c)
No order as to costs is made.”
2.
No order as to the costs of the appeal or the confirmation application is made.
Chaskalson CJ, Langa DCJ, Ackermann J, Mokgoro J, Ngcobo
J, O’Regan J and Yacoob J concur in the judgment of Sachs J.
NGCOBO J:
Introduction
[41]
I
have read the judgments prepared by my colleagues Moseneke and Sachs JJ.
I agree with the order proposed in the judgment
of Sachs J.  However, I
prefer to approach the matter differently.  In particular, I wish to
elaborate on my reasons
for that agreement and for my not agreeing with the
conclusion reached by Moseneke J.
[42]
I propose to
deal with two questions.  First, what is the proper approach to the
interpretation of legislation under our constitutional
democracy; and second,
do our
decisions in the
National Gay and Lesbian Coalition
[1]
and
Satchwell
[2]
cases preclude
us from upholding the appeal?
Proper approach to legislative interpretation
[43]
Section
39(2) of the Constitution contains an injunction on the interpretation of
legislation.  It requires courts when interpreting
any legislation to
“promote the spirit, purport and objects of the Bill of Rights.”
Consistent with this interpretive
injunction, where possible, legislation must
be read in a manner that gives effect to the values of our constitutional
democracy.
These values include
human dignity, equality and
freedom.  Thus where legislation is capable of more than one plausible
construction, the one which
brings the legislation within constitutional bounds
must be preferred.
[44]
In
Investigating Directorate: Serious Economic Offences and Others v Hyundai
Motor Distributors (Pty) Ltd and Others: In Re Hyundai
Motor Distributors (Pty)
Ltd and Others v Smit NO and
Others
, this Court
explained the meaning of this interpretive injunction as follows:
[3]
“This means that all statutes must be interpreted through the prism of
the Bill of Rights.  All law-making authority 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.
The purport and objects of the Constitution find expression in section 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 purport of an Act
and to read the provisions of the legislation, so far as is possible,
in
conformity with the Constitution.”
[45]
Courts
are therefore under an obligation, where possible, to construe legislation in a
manner that promotes the spirit, purport
and objects of the Bill of
Rights.  The Bill of Rights is a cornerstone of our constitutional
democracy.  It “enshrines
the rights of all people in our country” and
affirms the foundational values of human dignity, equality and freedom.
[4]
Courts
must give expression to these foundational values when construing any
legislation.  They must interpret legislation
so as to give effect to
these fundamental values and to the specific provisions of the Bill of Rights
which encompass them.
Legislation must now been seen through the prism of
the Constitution.  The Constitution provides the context within which all

legislation must be understood and construed.
[5]
[46]
However,
as this Court noted in the
Hyundai
case, there are limits to the
application of this interpretive injunction.  While there will be
occasions when legislation,
though open to a meaning which will be
unconstitutional, is reasonably capable of being read in conformity with the
Constitution
“[such] an interpretation should not, however be unduly strained.”
[6]
It
follows therefore that courts “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.”
[7]
[47]
Obviously,
when dealing with old order
legislation, this interpretive injunction
may require courts to depart from a construction
previously placed on
the legislation.  This departure is required because the context in which
legislation must now be construed
is different to that which
prevailed
when these cases were decided.  These cases must be understood in the
context in which they were decided, and in
particular, the values that were
prevailing at the time.
[48]
The
context in which old order legislation was construed during the
pre-constitutional era was very different from the present era.
Old order
legislation was previously construed in the context of a legal order that did
not respect human dignity, equality and
freedom for all people.  Discrimination
fuelled by prejudice was the norm.
Black people were denied
respect and dignity.  They were regarded as inferior to other races.
[8]
The
decision of the Appellate Division in the case of
Moller v
Keimoes
School
Committee
is most revealing in this regard.
[9]
[49]
In
that case the central question was whether a child born of a white and a black
was a child of “European parentage or extraction”
within the meaning of the
Cape School Board Act of 1905.
[10]
The
phrase “European parentage or extraction” was not defined in the relevant
statute.  And as one member of the
court in that case accepted, it was
“possible to read it in two ways, either as meaning wholly European extraction,
or partly
of European extraction.”
[11]
The
court construed the phrase to mean “of pure European descent” or “unmixed
European parentage or extraction.”
In so doing the court denied black
children born of mixed marriages the right to attend ordinary public schools in
the
Cape Province
,
which had superior education compared to other schools.
[50]
Lord
de Villiers CJ who wrote the main judgment explained the rationale for the decision
as follows:
[12]
“Now, in
construing a vague expression in a statute, like that of “European parentage or
extraction or descent,” the Court
should endeavour to ascertain its popular
sense and place itself as far as possible in the position of the authors of the
enactment.
As a matter of public history we know that the first civilised
legislators in
South Africa
came from
Holland
and regarded the aboriginal natives of the country as belonging to an inferior
race, whom the Dutch, as Europeans, were entitled
to rule over, and whom they
refused to admit to social or political equality.  We know also that,
while slavery existed, the
slaves were blacks and that their descendants, who
form a large proportion of the coloured races of
South Africa
, were never admitted
to social equality with the so-called whites.”
[13]
And then continued:
“These
prepossessions, or, as many might term them, these prejudices, never have died
out, and are not less deeply rooted at the
present day among the Europeans in
South Africa, whether of Dutch or English or French descent. We may not from a
philosophical
or humanitarian point of view be able to approve this prevalent
sentiment, but we cannot, as judges, who are called upon to construe
an Act of
Parliament, ignore the reasons which must have induced the legislature to adopt
the policy of separate education for
European and non-European children.
In consenting to the passing of a Bill requiring separate schools for children
of European
extraction, the average legislator would not understand the
expression “children of European extraction” to include children
of mixed
European and non-European extraction.  His objection to his child being
educated in the same school with a child
whose mother was coloured and whose
maternal grandmother was a native would be almost as great as to his child
associating at school
with black children.  It is certainly inconceivable
that he would be a consenting party to an Act by which European parents
could
be compelled to send their children to a school which children of mixed origin
can also be compelled to attend.  It
is regrettable that there should be this
social chasm between the races, but it undoubtedly exists, and it has had its
effects
on legislation throughout
South Africa
.”
[14]
[51]
On
the basis of this assumption Blacks were denied most, if not all basic human
rights that we now take for granted.  They
were discriminated
against.  Their cultures and laws were not recognised except when they
conformed to “the boni mores”
of the “civilised peoples”.  Their marriages
were not recognised.  The law reflected the values of one section of

society which constituted the minority.  It is within this context that
the old order legislation was construed in the pre-constitutional
era.
[52]
It
is within this context that cases such as
Seedat’s Executors
[15]
and
Ismail
[16]
must be
understood.  These cases reflect the values of one section of our
society.  In
Seedat’s
Executors
case, the court
declined to recognise a widow of a Muslim marriage as a “surviving spouse”
because a Muslim marriage was “repugnant
to the policy and the legal
institution both of
Holland
and
England
”
[17]
and
“reprobated
by the majority
of the civilised peoples, on grounds
of morality and religion.”
[18]
On the
basis of views
of the “civilised peoples” the court refused to recognise
a widow of a Muslim marriage as a surviving spouse for the purposes
of the
statute in question.  The rights of the Muslim community to marry
according to Muslim law were ignored.
[53]
Similarly,
in
Ismail’s
case, and relying on the
Seedat’s Executors
case, the
court refused to recognise a marriage by Muslim rites.  The central issue
in that case was whether the proprietary
consequences of such a marriage and
its termination according to Muslim law were enforceable in law.  The
marriage in that
case was de facto monogamous.  The court reasoned,
however,
that a Muslim marriage is potentially polygamous.  The
court held that such marriages are “contrary to the accepted customs
and usages
which are regarded as morally binding
upon all members of our society.”
[19]
It
found that there were no reasons for it to depart “from the long line of
decisions
in which our [courts] have consistently
refused,
on grounds of public policy, to recognise, or to give effect to the
consequences of, polygamous unions.”
[20]
[54]
The
new constitutional order rejects the values upon which these decisions were
based and affirms the equal worth and equality of
all South Africans
.
The
recognition and protection of human dignity is the touchstone of this new
constitutional order.  The new constitutional
order is based on the
recognition of our diversity and tolerance for other religious faiths.  It
is
founded on human dignity, equality and freedom.  These founding
values have introduced new values in our society.  The
process of
interpreting legislation must recognise the context in which we find ourselves
and the constitutional goal of establishing
a society based on democratic
values, social justice and fundamental human rights.
[55]
And
these values are given expression in the relevant provisions of the Bill of
Rights which contains the fundamental human rights.
Thus our Bill of
Rights guarantees, among other things, freedom of religion.  In
particular, it prohibits discrimination based
on religion, conscience, belief
or culture.
[21]
Section
15(3
)(
a) of the Constitution permits the recognition
of “marriages concluded under any tradition or a system of religion, personal
or
family law.”
[22]
The
founding values as given expression in the Bill of Rights now provide the
context within which legislation must be construed.
The interpretive
injunction contained in section 39(2), namely, that when interpreting any
legislation courts must promote the
spirit, purport and objects of the Bill of
Rights must be understood in this context.
[56]
Our
Constitution contemplates that there will be a coherent system of law built on
the foundations of the Bill of Rights, in which
common law and indigenous law
should be developed and legislation should be interpreted so as to be
consistent with the Bill of
Rights and with our obligations under international
law.  In this sense the Constitution demands a change in the legal norms

and the values of our society.  This change is indeed reflected in a
number of statutes which now expressly recognise Muslim
marriages for the
purposes of the rights that they vest in spouses.
[23]
In my
view the word “spouse” in the statutes under consideration must be construed to
reflect this change.  It follows
therefore that the word “spouse” must now
be construed in a manner that is consistent with the foundational values of
human
dignity, equality and freedom.
[57]
Thus
the word “spouse” in the
Intestate Succession Act
href="#_ftn72" title="">
class=MsoFootnoteReference>
lang=EN-ZA style='mso-ansi-language:EN-ZA'>
[24
]
and the
Maintenance of Surviving Spouses
Act,
[25]
is not
defined.  It must therefore now be given its ordinary meaning unless the
context suggests otherwise.  I agree
with Sachs J that the ordinary
meaning of the word “spouse” includes parties to a Muslim marriage.  I can
find nothing
in the word “spouse” to suggest that it excludes spouses of a
marriage by Muslim rites.  Nor is there anything in the object
or the
purpose of these statutes to suggest that.  Both these statutes were
intended to provide the surviving spouse with
a claim for maintenance against
or claim for a share in the estate of the deceased spouse.  A construction
of the word “spouse”
to include parties to a Muslim marriage is consistent with
this object.
[58]
This
construction of the word “spouse” recognises “marriages concluded under any
tradition or a system of religion, personal
or family law.”
[26]
In so
doing, it “promotes the spirit, purport and objects of the Bill of Rights.”
[27]
It
follows therefore that the word “spouse” in the two statutes must be construed
to include parties to a Muslim marriage,
unless the decisions in
National
Gay and Lesbian Coalition
and
Satchwell
preclude us from adopting
such a construction.
Do the National Gay and
Lesbian Coalition and Satchwell decisions preclude a construction giving the
word spouse its ordinary meaning?
[59]
The
High Court took the view that these cases preclude such a construction because
they held that the term “spouse” only applied
to a marriage recognised as valid
in terms of South African law.  The High Court relied upon the statements
in the two judgments
to the effect that the word “spouse” as used in the
statute did not suggest a wider meaning.  It relied in particular,
upon
the statements that there was no indication that marriages or “spouse” as used
in the relevant statutes extended “any
further than those marriages that are
ordinarily recognised by our law.”
[28]
[60]
In
my view these two cases are distinguishable from the present case.  They
concerned couples who did not claim to be married
under any law.  They
were concerned with people who asserted rights to have their partners
recognised in law.  They did
not assert such rights based on any marriage
but it was based on living together in a permanent same-sex relationship.
They
did not therefore claim that their “partners” are “spouses”.  The
question in each of these cases was therefore whether
the parties in a same-sex
relationship should be accorded the same rights as spouses in a marriage.
It was in this context
that the Court held that partners in same-sex
relationship are not spouses within the meaning of the statutes in question.
[61]
Here
we are concerned with a claim that the applicant is married by Muslim rights
and that she is therefore a “spouse” within
the meaning of that word as used in
the statutes in question.  The question therefore is whether the word
“spouse” as
used in the two statutes includes parties to a Muslim
marriage.  The question is not whether the word “spouse” should be
construed
to include same-sex couples who are not married.  This, in my view,
distinguishes this case from the two cases relied
upon by the High Court.
[62]
Much
was made of the statements in the two cases that the word spouses or marriage
“extended no further than those marriages that
are ordinarily recognised by our
law.”
[29]
As
pointed out above, in the two cases the Court was concerned with the question
whether the word “spouse” could be extended
to include parties to a permanent
same-sex life partnership.  These cases must be understood to hold that
the word “spouse”
cannot be construed to include persons who are not
married.  Seen in this context, the Court probably went too far when it

referred to “marriages ordinarily recognised in law.”  This statement was
not required by the conclusion reached by the
Court.
[63]
In
my view therefore our decisions in the
National Gay and Lesbian Coalition
and
Satchwell
do not preclude the adoption of a construction of the word
“spouse” to include parties to a Muslim marriage.  It follows
that the
word “spouse” in the statutes in issue in this case must be construed to
include parties to a Muslim marriage.
It is not necessary in this case to
consider whether spouses to polygamous marriages would fall within the meaning
of the word
“spouse” as used in the statutes under
consideration
.  That question must be deferred until the occasion arises for
this Court to do so.  I agree with the judgment and the
order proposed by
Sachs J.
Chaskalson CJ, Langa DCJ, Ackermann J, Mokgoro J,
O’Regan J, Sachs J and Yacoob J concur in the judgment of Ngcobo J.
MOSENEKE J:
Introduction
[64]
These
are proceedings for the confirmation of an
order of
the
Cape
High Court
(High Court)
[1]
declaring
provisions of the
Intestate
Succession Act
href="#_ftn79" title="">
class=MsoFootnoteReference>
lang=EN-ZA style='mso-ansi-language:EN-ZA'>
[2]
and the
Maintenance of Surviving Spouses Act
[3]
(the
Acts) unconstitutional and invalid because they exclude persons married
according to Muslim rites as spouses for the
purposes of the Acts.  In
this Court, the applicant urged us to confirm the orders or uphold her conditional
appeal against
the High Court’s interpretation of the word “spouse” in the Acts
and its resultant orders of constitutional invalidity and
remedial
“reading-in”.  The applicant prefers a declaratory order that “spouse”, as
used in the Acts, includes a surviving
partner to a
de facto
monogamous
Muslim marriage.
[65]
The
first and second respondents resist the confirmation of the orders and the
appeal on the ground that the impugned legislation
does not offend the equality
guarantee in the Constitution.  On behalf of the Minister of Justice and
Constitutional Development
(the Minister) it was submitted that the orders of
constitutional invalidity are correct and should be confirmed.
[66]
The
main judgment declines to confirm the orders of constitutional invalidity, but
upholds the appeal.  It finds that the Acts
fall to be “read-down” to
comport with the prescripts of the Constitution.  On that interpretative
approach, the main
judgment opts for declarations that the word “spouse” as
used in the Acts includes a surviving partner to a
de facto
monogamous
Muslim marriage.
[67]
I
take the view that the order of constitutional invalidity should be confirmed
and the appeal dismissed.  Like the High Court,
I am of the opinion that
the word “spouse” must be given a meaning limited to a party to a marriage
valid in our law and solemnised
in accordance with the requirements of the
Marriage Act.
[4]
So
construed, the Acts impermissibly encroach upon the equality and dignity
commitment of the Constitution the applicant
is accordingly entitled to
effective remedy.  It is therefore just and equitable to cure the omission
of Muslim spouses from
the respective definitions
[5]
of the
Acts by “reading-in” appropriate words.
[68]
The
main judgment favours an inclusive construction of the word “spouse” because it
avoids constitutional invalidity.
I see the matter differently.
Such a reading of the impugned legislation would be impermissible, as it is
unduly strained,
not reasonably available and distorts the text.  This is
so because
first
, I do not accept that the word “spouse” bears an
“ordinary meaning” other than a partner in a legally enforceable
marriage.
Second
, thus far, for all the reasons embedded in the
racial, cultural and religious bigotry of our unequal and bruising past,
pre-constitutional
courts have not recognised Islamic marriages as valid
marriages.
Third
, in its previous decisions, this Court has
ascribed to the words “marriage” and “spouse”, as used in statutes, a meaning

at odds with the one now advanced in the main judgment.
Fourth
, a
significant body of post-constitutional legislation ascribes to “marriage” and
“spouse” the narrow and exclusionary
meaning and overcomes the omission of
Muslim wives and husbands through interpretative aids.
Lastly
,
important considerations of separation of powers favour legislative rather than
interpretive intervention.
Recognition of Muslim marriages
[69]
Marriages
that have been solemnised under the tenets of the Islamic faith remain
unrecognised as valid marriages under the common
law.
[6]
None of
the parties before us contended otherwise.  With the common law as it
stands, such a submission would have been
devoid of any merit.  A fleeting
survey of the cases makes the point.
[70]
This
Court, in
Fraser v Children’s Court, Pretoria North and Others
[7]
unanimously
observed that the effect of
Seedat’s Executors v The Master (Natal
)
[8]
and
Ismail
v Ismail
[9]
and
Ryland
v Edros
[10]
is that:
“. . .
unions
which have been solemnised in
terms of the tenets of the Islamic faith, for example, are not recognised in
our law because such
a system permits polygamy in marriage.  It matters
not that the actual union is in fact monogamous.  As long as the religion

permits polygamy, the union is ‘potentially polygamous’ and for that reason,
said to be against public policy.”
[11]
[71]
In
Seedat’s Executors
, Innes CJ refused to recognise a Muslim widow as a
“surviving spouse” for purposes of a statute which exempted surviving spouses

from estate duty because marriages solemnised under the tenets of Islam were
“potentially polygamous”, repugnant to “the
policy and institutions of Holland
and of England” and “reprobated by the majority of civilised peoples, on
grounds of morality
and religion.”  The court further characterised such
marriages as “being fundamentally opposed to our principles and institutions”.
[12]
[72]
Trengove
JA, in
Ismail
, found such marriages to be potentially polygamous and as
such contrary to “accepted custom and usages, which are regarded as
morally
binding upon all members of our society.”
[13]
The
court further found that although marriage is not defined in the Marriage Act,
it is clear from the context of the Act
as a whole that it means marriage under
the common law.  The court further held that the provisions of section 3
of the Marriage
Act which authorise the appointment of a marriage officer for
purposes of solemnising marriages according to “Mohammedan rites”
relate only
to the form of the ceremony and do not purge the invalidity of a Muslim
marriage.  That is so, it found, because
the common law and not the Marriage
Act, determines the essential elements and thus the consequences of marriage.
[14]
[73]
In
Ryland
, the
Cape
High Court
did not find
that a Muslim marriage is valid in law.  It held that the contractual
obligations arising from a Muslim marriage,
including the duty of a husband to
maintain his wife, were enforceable.
[15]
Mahomed
CJ in
Amod v Multilateral Motor Vehicle Accident Fund (Commission for Gender
Equality Intervening)
,
[16]
emphasised
that the question to be decided was not whether the marriage was lawful at
common law, but whether the deceased
was under a legal duty to support the
appellant during the subsistence of the marriage and, if so, whether her right
was one which
“deserved protection for purposes of a dependant’s claim”.
[17]
[74]
This
“persisting invalidity of Muslim marriages”
[18]
is, of
course, a constitutional anachronism.  It belongs to our dim past.
It originates from deep-rooted prejudice
on matters of race, religion and
culture.  True to their worldview, judges of the past displayed remarkable
ethnocentric bias
and arrogance at the expense of those they perceived
different.  They exalted their own and demeaned and excluded everything

else.  Inherent in this disposition, says Mahomed CJ, is “inequality,
arbitrariness, intolerance and inequity”.
[19]
[75]
These
stereotypical and stunted notions of marriage and family must now succumb to
the newfound and restored values of our society,
its institutions and diverse people.
They must yield to societal and constitutional recognition of expanding
frontiers of
family life and intimate relationships.  Our Constitution
guarantees not only dignity
[20]
and
equality,
[21]
but also
freedom of religion and belief.
[22]
What is
more, section 15(3)
[23]
of the
Constitution foreshadows and authorises legislation that recognises marriages
concluded under any tradition or a system
of religious, personal or family
law.  Such legislation is yet to be passed in regard to Islamic marriages.
[76]
As
matters stand, the underlying restrictive common law conception of marriage and
the intertwined constitutive formalities of the
Marriage Act are not the target
of the present constitutional claim.  This Court was not urged, nor is it
appropriate, to
develop the applicable common law or to scrutinise the Marriage
Act for constitutional compliance in this case.  In any event
that was not
the basis of the applicant’s case.
[24]
Statutory recognition of
Muslim marriages
[77]
Before
us and in the High Court, the applicant drew attention to recent and amended statutes
which expressly recognise Muslim marriages
for purposes of the rights they vest
in spouses.
[25]
The
applicant submitted that these statutes reflect the change in norms
and
legal conceptions of our society towards family and marriage in general and
Muslim marriages in particular.  With that
submission I agree.  It is
underscored by several judgments of this Court.
[26]
One
such is
Du Toit and Another v Minister of Welfare and Population Development
and Others (Lesbian and Gay Equality Project as Amicus Curiae
)
[
27
]
in which
Skweyiya AJ observed that:
“The institutions of marriage and family are important social pillars
that provide for security, support and companionship between
members of our
society and play a pivotal role in the rearing of children.  However, we
must approach the issues in the present
matter on the basis that family life as
contemplated by the Constitution can be provided in different ways and that
legal conceptions
of the family and what constitutes family life should change
as social practices and traditions change.”
[28]
[78]
In
further argument, the applicant submitted that these recent and amended
statutes indicate that the word “spouse” in the Acts
is capable of a meaning
inclusive of Muslim husbands and wives.  I do not agree.  In all of
the statutes we were referred
to, Muslim spouses are included through deeming
or interpretive aids.  The compelling inference is that the deeming
provisions
or definitional extensions in the statutes restrict the meaning of
“spouse” and “marriage” to common law spousal relationships.
I am fortified
in this conclusion by the reasoning of this Court in
National Coalition for
Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
[29]
in which an
identical submission was met with the finding that:
“Had the word ‘spouse’ been used in a more extensive sense in section
25(5) of the Act, it would have been unnecessary to provide
specifically in
section 1(1) that marriage ‘includes a customary union’.”
[30]
[79]
I
agree with the High Court that the increasing number of statutes that recognise
wider conceptions of marriage and family, point
away from widening the
interpretation of the word “spouse”.
[31]
Normal
canons of statutory construction dictate that where the legislature recognises
that a definition needs to be explicitly
widened for a statute to apply to
Muslim spouses, the opposite would also be true.  The narrower common law
definition would
apply whenever there is no expanded definition.
[32]
Applicable principles of
interpretation
[80]
The
husband of the applicant died on 27 November 1994.  Her claim against the
deceased estate vested on that day.  The
High Court held that it is the
interim Constitution that is applicable when determining whether the relevant
statutory provisions
may be properly interpreted in conformity with its Bill of
Rights.  However, the proceedings in the High Court were initiated
on 5
March 2001, well after the commencement of the final Constitution.  Thus,
the proper construction to be placed on the
Acts must be determined, not in
accordance with section 35(2) and (3) of the interim Constitution but in the
light of the provisions
of section 39(2)
[33]
of the
Constitution.
[34]
However, nothing significant turns on that distinction.  The method of
construction authorised in section 35(2) and
(3) of the interim Constitution is
now to be found in 39(2) of the 1996 Constitution.
[35]
[81]
Section
39(2) obliges a court construing legislation to promote the spirit, purport and
objects of the Bill of Rights.  Where
possible, a statute must be read in
a manner that makes it comport with the dictates of the Constitution.  In
De
Beer NO v North Central Local Council and South Central Local Council and
Others (Umhlatuzana Civic Association intervening)
,
[3
6
]
Yacoob J
articulates this duty as follows:
“. . .
w
here
a statutory provision is capable of more than one
reasonable construction, one of which would lead to constitutional invalidity
and
the other not, a court ought to favour the construction which avoids
constitutional invalidity, provided such interpretation
is not unduly
strained.”
[37]
[82]
Implicit
in this interpretive injunction found in section 39(2) is that previously
binding pre-constitutional reading of legislation
may now be open to
reconsideration in the light of the statement of fundamental rights and
freedoms in Chapter 2 of our Constitution.
[38]
[83]
However,
this affirmative duty to “read” legislation in order to bring it within
constitutional confines is not without bounds.
An impugned statute may be
read to survive constitutional invalidity only if it is reasonably capable of such
compliant meaning.
To be permissible, the interpretation must not be
fanciful or far-fetched but one that reasonably arises from the challenged text

without unwarranted strain, distortion or violence to the language.  This
is so because statutes are:
“. . .
products
of conscious and planned
law-making by demonstrable and authorised law making authors and are therefore
meant to be of effect.
By replacing them as final authority, the
Constitution has not deprived statutes of their worth or force, but has given
them new
direction.”
[39]
As our courts, duty bound as they are, give articulation
to the fundamental values of the Constitution in reading statutes, the language

of the text is not “infinitely malleable”
[117]
but sets
limits for generous reading.  Kentridge AJ, writing for the Court, warned
that “if the language used by the
lawgiver is ignored in favour of a general
resort to ‘values’ the result is not interpretation but divination.”
[40]
[84]
In
De Lange v Smuts NO and Others
[
4
1]
Ackermann
J cautions that limits must be placed on reading of statutes to avoid
constitutional invalidity.  This is so
also because:
“. . .
the
Legislature 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 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.”
[
42
]
The ordinary meaning of “spouse”
[85]
The
main judgment finds that the ordinary meaning of the word “spouse” extends to a
party to a monogamous Muslim marriage because
such a meaning is not
linguistically strained.  It accords with the way the word is generally
understood and used.  The
main judgment holds that by excluding others,
courts in our past attributed a “discriminatory” and “strained” rather than

ordinary meaning to the word “spouse”.
[86]
I
cannot support that approach to the construction of the Acts.
First,
it fails to make the necessary distinction between the interpretation of
legislation under section 39(2) and remedial measures
under section 172(1
)(
b) of the Constitution.  Of this distinction, the
following is said in
Gay and Lesbian Equality
:
“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.”
[43]
The meaning of “spouse” preferred in the main judgment
is said to be compelled by the need to redress “past discriminatory

interpretations”.  The main judgment explains that “the potential
under-inclusiveness and consequent discriminatory impact
is avoided simply by
correcting the interpretation.”
[44]
In this
way, the main judgment conflates the meaning that the Acts can reasonably bear
with the constitutional remedy the
applicant and others similarly situated may
be entitled to.  These processes ought to be two separate enquiries; the
first
goes to interpretation, and the second to remedy. Otherwise the meaning
of the text becomes subservient to a preferred outcome or
relief.
[87]
Second
,
much is made of the “
ordinary
meaning”
of “spouse”.  I am
unable to agree that in its ordinary sense the word “spouse” also signifies a
man or a woman whose
conjugal relationship or union is not recognised as a
marriage by law.  “Spouse” and “marriage” are not words of general

import.  When used in ordinary language, they are reserved for an intimate
relationship with known and defined personal, family,
social and importantly,
legal obligations.  In addition to love, fidelity, companionship and
support, these words connote
a conjugal relationship with certain and secure
legal effect as between parties to it and as against all others.  However,

which of these societal notions of family and marriage would survive
constitutional scrutiny is another matter.
[88]
The “ordinary
meaning” rule of interpretation is premised on the approach that “the language
of the legislature should be
read in its ordinary sense.”
[45]
The
ordinary sense is often glibly equated with what is believed to be the plain
and literal or grammatical meaning of the
language.
[4
6
]
However, clarity of language does not rest on any “objective quality” of
language itself, but on the reader and the context.
In this regard,
Schreiner JA in
Savage v Commissioner for Inland Revenue
[47]
had
occasion to observe that:
“. . .
what
seems a clear meaning to one man may
not seem clear to another. . . . The ‘literal’ meaning is not something
revealed to judges
by a sort of authentic dictionary; it is only what
individual
judges
think is the literal meaning.”
[48]
[89]
Even
if the word “spouse” may bear the ordinary meaning advanced in the main
judgment, there can be, and often is, a distinction
between the common or
colloquial understanding of a word used in a statute and its legal
counterpart.  It is the legal meaning
of the text that should preoccupy
statutory interpretation.  Ultimately, it is courts which must ascertain
the meaning of
words and expressions in statutes.  That explains why the
determination of the meaning and effect of the language of a legislative
text
is, in the end, a question of law.
[49]
Decisions of this Court
[90]
The
interpretation of the impugned Acts and the resultant remedy favoured in the
main judgment is, in my view, at odds with precedents
of this Court.
Later I discuss the grounds upon which the main judgment seeks to distinguish
the present matter from its
precedent and why such distinction is unconvincing.
[91]
The New Shorter OED
[50]
defines
the word “spouse” as “a married person; a wife; a husband.”  In
Gay and
Lesbian Equality
,
[51]
this
Court cited this definition with approval as a reflection of the ordinary
connotation of the word.
[52]
In that
case, it was argued that it was reasonably possible, under section 39(2) of the
Constitution, to interpret the undefined
word “spouse” as used in the
challenged statute as including a same-sex life partner.  This Court held
that the word spouse
cannot, in its context, be so construed because it “is
used for a partner in a marriage”, “does not suggest a wider meaning”
and “was
not reasonably capable of the construction contended for.”
[53]
Alluding to the word “marriage” as used in a related subsection of the same
statute, this Court held that “[t]here
is no indication that the word
‘marriage’ . . . extends any further than those marriages that are recognised
by our law.”
[54]
[92]
That
approach is re-affirmed in
Satchwell
.
[55]
Madala
J, writing for the Court, held that:
“There is no definition of the word ‘spouse’ in the provisions under
attack.  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. . . .Accordingly,
a number of relationships are excluded,
such as same-sex partnerships and permanent life partnerships between unmarried
heterosexual
cohabitants.”
[56]
[93]
In
both decided cases, this Court found the statutes under attack to be
inconsistent with the Constitution and invalid.  It
remedied the
impermissible under- inclusiveness of the challenged legislation by making an
appropriate “reading-in” order.
Judicial precedent
[94]
The
doctrine of precedent is an incident of the rule of law.
[57]
Its
primary purpose is to advance justice by ensuring certainty of the law,
equality and equal treatment and fairness before
it.  To that end, the
doctrine imposes a general obligation on a court to follow legal rulings in
previous judicial decisions.
[58]
[95]
In
Bloemfontein
Town
Council v Richter
,
[59]
the
Appellate Division, the highest court of the time, set itself a stringent
stare
decisis
standard:
“The ordinary rule is that this Court is bound by its own decisions and
unless a decision has been arrived at on some manifest
oversight or
misunderstanding that is there has been something in the nature of a palpable
mistake a subsequently constituted Court
has no right to prefer its own
reasoning to that of its predecessors – such preference, if allowed, would
produce endless uncertainty
and confusion. The maxim “stare decisis” should,
therefore, be more rigidly applied in this the highest Court in the land, than

in all others.”
[138]
Of course, there are recognised exceptions to this
rule.  Notably, where the court is satisfied that its previous decision
was wrong or where the point was not argued or where the issue is in some
legitimate manner distinguishable.
[60]
[96]
In
Van der Walt v Metcash Trading Limited
[61]
this
Court re-affirmed and accepted the
stare decisis
principle emphasising
the merit of legal certainty and that similarly situated litigants must be
treated similarly.  Unsurprisingly,
similar precedent systems are followed
in other jurisdictions such as
Canada
,
USA
,
India
and the
United Kingdom
.
[62]
Is the present case distinguishable?
[97]
The
main judgment seeks to distinguish the present case from
Gay and Lesbian
Equality
and
Satchwell
on several grounds.  I find it necessary
to deal with only three of these grounds.  The rest have been dealt with
in
the course of this judgment.  The first ground is that, in neither
judgment, is there a statement referring to solemnisation
under the Marriage
Act as a pre-requisite for parties to be considered to be spouses.  That
may be so, but such a statement
would be redundant.  In our law, as it now
stands, “marriage”, for purposes of determining legal status, is one concluded

in accordance with the Marriage Act and nothing else.  Reference to
“marriage recognised as valid in law” must mean one
celebrated accordingly.
[63]
[98]
In
both
Gay and Lesbian Equality
and
Satchwell
the exclusion of
other intimate or conjugal relationships from the meaning of “spouse” and
“marriage” is not limited to
permanent same-sex partnerships, as the main
judgment now suggests.
Ackermann J made it clear in the judgment
that the word “spouse” excludes, for example, a customary union where neither
the
man nor the woman is a party to a subsisting marriage “based on an
opposite-sex relationship.”
[64]
In a
similar vein, Madala J excludes from the meaning of spouse both “same-sex
partnerships and permanent life partnerships
between unmarried heterosexual
cohabitants”.
[65]
The
suggestion that in
Gay and Lesbian Equality
and
Satchwell
same-sex
partnerships
only
were excluded because they cannot be considered to be
married persons, as husband and wife, is unconvincing.
[99]
It
is suggested that the present case is distinguishable from
Gay and Lesbian
Equality
and
Satchwell
because there was nothing in the context in
which the word “spouse” was used in those cases, which suggested a wider
meaning
than “married person”.  It is so that a word or expression has to
be interpreted in the context of the statute under consideration.

However, I find nothing in the text and purpose of the present Acts, which
warrants the expanded meaning given to “spouse”,
or “marriage”.  The
Intestate Succession Act does
not define the word “spouse” whereas the
Maintenance of Surviving Spouses Act defines “survivor” as “surviving spouse
in
a marriage dissolved by death”.  This is hardly surprising.  When
these Acts came into force, “spouse” and “marriage”
had meanings uncontested
and certain under the common law.  These statutes were enacted well ahead
of the advent of the present
constitutional era.  Both are designed to
provide economically for surviving spouses in order to advance the institution
of
marriage and to protect widows who constitute a socially vulnerable
group.  The legislation constitutes
a derogation
from the common law rules of intestate succession that deprived a surviving
spouse of any inheritance or a claim for support against
the estate of her or
his deceased spouse.
[66]
Both
statutes carry the baggage of the narrow common law notions of marriage and
family.  Thus, the target beneficiaries
of the Acts are limited and, by
definition, exclusionary.
[100]
The
main judgment seeks to distinguish this case by
stating that it cannot be said that Muslim marriages lack legal recognition in
the way that permanent same-sex unions do because statutes have given express
recognition to Muslim unions.
[67]
This is
a distinction without much significance in the light of the finding of this
Court in
Gay and Lesbian Equality
[68]
that:
“A notable and significant development in our statute law in recent years
has been the extent of express and implied recognition
the legislature has
accorded same-sex partnerships.  A range of statutory provisions have
included such unions within their
ambit.  While this legislative trend is
significant in evincing Parliament’s commitment to equality on the ground of
sexual
orientation, there is still no appropriate recognition in our law of the
same-sex life partnership,
as a relationship
, to meet the legal and
other needs of its partners.”
[69]
[101]
In
my view there is no proper basis for departing
from the mode of analysis deployed by this Court in
Gay and Lesbian Equality
and
Satchwell.
Both decided cases posit a very specific and narrow
understanding of marriage, which is compelled by the lacuna in alternative

marriage regimes.  What is more, the substantive consequences of such
marriage are not consistent with Islamic law.
That volubly explains the
dearth of Muslim marriage officers registered under the Marriage Act.
[70]
[102]
These
exclusionary conceptions of marriage are integral
to the definition laid down at common law read with the Marriage Act.  It

is irrelevant whether the marriage was celebrated in a ceremony or whether all
the elements of the
consortium
omnis vitae
were present.
[71]
The
marriage is valid in law only if the formalities were complied with.
Under this established interpretation, the
case of the applicant cannot be
distinguished without doing violence to the doctrine of
stare decisis
.
[72]
[103]
There
are also reasons of principle why the judgments
should not be distinguished.  Both
Satchwell
and
Gay and Lesbian
Equality
state that they intend to break down the stigma attached to gay
and lesbian relationships and afford legal recognition to same-sex
life
partnerships.  By creating a dichotomy between those cases and the present
one, the main judgment essentially makes a
claim that some legally invalid
partnerships are closer to being acceptable than others, and gay couples are
again differentiated
from the norm.  This is to undo strides made by this
Court in equality jurisprudence.
[104]
Another
important consideration relates to the rule of
law.  The problem of readily importing interpretations piecemeal into
legislation
is the precedent it sets.  Courts below will follow the lead
and readily interpret rather than declare invalid statutes inconsistent
with
the Constitution.  However, constitutional re-interpretation does not come
to this Court for confirmation.  The
result may be that high courts
develop interpretations at varying paces and inconsistently.  This makes
for an even more fragmented
jurisprudence and would have deleterious effects on
how people regulate their affairs.  It is highly undesirable to have an

institution as important as marriage recognised for some people in some
provinces and not in others.  The rule of law requires
legal certainty.
Equality
[105]
It
is common cause that this equality claim falls to
be decided in terms of section 8
[73]
of the
interim Constitution.  This Court, in several judgments, has laid down the
centrality and importance of the equality
protection in our Constitution.
[74]
I am in
agreement with the High Court that the Acts differentiate between different
types of spouses on listed grounds of
religion, culture and marital status and
that this discrimination is unfair.
[106]
Apart
from the presumption of unfairness, the discrimination displays naked
preference.  It has created real disadvantage and
violated dignity and
freedom.  Its impact on the applicant and on other surviving spouses in
her position is most adverse
and demeaning.  It treats her as undeserving
of the legal recognition enjoyed by other religious and civil marriages.

The Acts withhold from Muslim widows economic protection they extend to
socially vulnerable widows of Christian, Jewish and secular
civil marriages
and, recently, customary unions.
[154]
Because
of the Muslim character of her marriage, the applicant stands to lose a home
which, but for her marriage to the deceased,
would have been her
property.  Moreover, the applicant has no legal means of giving effect to
her inheritance rights in terms
of Muslim personal law.
[75]
[107]
The
under-inclusiveness of the Acts constitutes an obvious breach of the
applicant’s right to equality on several specified grounds,
namely marital
status, religion and culture, and also implicates the right to dignity.
[76]
Apart
from the submissions by the first and second respondents that the applicant had
the choice to legalise her marriage,
none of the parties contended that this
breach is justifiable.  Before this Court, the Minister, charged with the
administration
of the Acts, submitted that no such justification exists.
He drew attention to the deliberations of the South African Law
Commission on
Islamic Marriages and to the draft Muslim Marriages Act,
[77]
which
envisages the inclusion of Muslim spouses by expanding the definitions in the
challenged Acts.  There is no legitimate
governmental purpose served by
excluding Muslim surviving spouses from the protection of the Acts.  The
legislation infringes
the substantive equality and dignity commitments of our
Constitution and must be declared unconstitutional and invalid.
[108]
I
am acutely alive to the scorn and palpable injustice the Muslim community has
had to endure in the past on account of the legal
non-recognition of marriages
celebrated in accordance with Islamic law.  The tenets of our Constitution
promises religious
voluntarism, diversity and independence within the context
of the supremacy of the Constitution.  The legislature has still
not
redressed, as foreshadowed by the Constitution, issues of inequality in
relation to Islamic marriages and succession.
The report of the Commission
suggests that there is considerable divergence of views on the envisaged
legislation within the Muslim
community.
[78]
A
matter so complex and replete with contending policy, personal law and
pluralistic considerations is better suited for
legislative rather than
judicial intervention.  Thus, in my view, a precise and tailored
“reading-in” remedy, pending
appropriate and timeous legislative intervention,
is more appropriate than a re-interpretation of the challenged statutes.
Appropriate relief
[109]
I
am in agreement with the High Court that the Acts must be declared inconsistent
with the Constitution and invalid because they
omit from their reach a husband
or a wife married in accordance with Muslim rites in a
de facto
monogamous union.
[79]
Pending
the legislative recognition of Islamic law of succession in a way that conforms
to foundational values of the Constitution,
the applicant is entitled to
appropriate relief dictated by section 38 of the Constitution.  An order
reading in appropriate
words to that effect, precise and faithful to the
legislative scheme of the Acts, would best vindicate the applicant’s equality

claim.
[110]
The
High Court has limited the operation of its order in respect of the
Intestate
Succession Act to
deceased estates that have not been fully wound up by the
date of its order.  The court was moved to this conclusion in the
interest
of finality and to avoid undue disruption in winding up of deceased estates.
Whilst this consideration has some
merit, I do think that in practice the
period within which deceased estates are finalised varies considerably.
The factors
that determine how speedily a deceased estate is finalised are
often not within the control of heirs and other interested parties.
A cut
off date as proposed may, in some cases, work a hardship.  Should problems
related to retrospectivity arise, they may
be resolved on a case-by-case basis.
[111]
No
costs were asked for.  I propose to make no order as to costs.
Order
As this is a minority judgment, there is no need to
propose an order.
Madala J concurs in the judgment of Moseneke J.
For the
applicant:

M Chaskalson and R Williams instructed by Women’s Legal Centre
For
the first and second
respondents:         AM Breitenbach and
N Bawa
instructed by Sonnenberg Hoffman &
Galombik Attorneys
For
the eighth
respondent:

N
Cassim
SC
and A Kalla instructed by the State Attorney
[1]
In terms of
rule 15
of the Rules of
the
Constitutional Court
,
read with
section 167(5)
read with section 172(2) of the Constitution.
[2]
In terms of rule 18 of the
Rules of this Court read with section 172(2
)(
d) of the
Constitution.
[3]
Act 81 of
1987.
[4]
Act
27 of 1990.
[5]
Act 25 of 1961.
[6]
The house was valued for estate
purposes at less than R50 000.
[7]
Daniels v
Campbell NO and Others
2003 (9) BCLR 969
(C) at 973F-G.
[8]
The Master made the appointments in
terms of
section 18(3)
of the
Administration of Estates Act 66 of 1965
.
[9]
Above n 7
at
980C-D.
[10]
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs
and Others
[1999] ZACC 17
;
2000 (2)
SA 1
(CC);
2000 (1) BCLR 39
(CC).
[11]
Satchwell v President
of the
Republic
of
South Africa
and
Another
[2002] ZACC 18
;
2002 (6) SA 1
(CC);
2002 (9) BCLR 986
(CC).
[12]
Above n 7 at 988C-9E.
[13]
Act 45 of 1955.
[14]
Above n 7 at 1000A.
[15]
Id at 993H-I.
[16]
Id at 1002D-E.
[17]
Above n 10.
[18]
Above n 7 at
1005A-E.
[19]
Section 167(5) of the Constitution states:
“The
Constitutional Court
makes the final decision whether an Act of Parliament, a provincial Act or
conduct of the President is constitutional, and must
confirm any order of
invalidity made by the Supreme Court of Appeal, a High Court, or a court of
similar status, before that order
has any force.”
[20]
Case No 1646/01 unreported.
[21]
Id at para 19.
[22]
Section 172(2
)(
d)
provides the following:
“Any
person or organ of state with sufficient interest may appeal, or apply,
directly to the
Constitutional
Court
to confirm or vary an order of
constitutional invalidity by a court in terms of this subsection.”
[23]
In this regard, the respondents made reference
to section 3 of the Marriage Act which states:
“Designation
of ministers of religion and other persons attached to churches as marriage
officers. —
(1)
The Minister and any officer in the public service authorized thereto
by him
may designate any minister of religion of, or any person holding a responsible
position in, any religious denomination or
organization to be, so long as he is
such a minister or occupies such position, a marriage officer for the purpose
of solemnizing
marriages according to Christian, Jewish or Mohammedan rites or
the rites of any Indian religion.
(2)
A designation under subsection (1) may further limit the authority
of any such
minister of religion or person to the solemnization of marriages —
(a)
within
a specified area;
(b)
for
a specified period;
(c)           . . .”
[24]
Section 14(3) of the interim Constitution stated that:
“Nothing
in this Chapter shall preclude 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.”
The Constitution in this regard states at
section 15(3):
“(
a
) This section does
not prevent legislation recognising —
(i)
marriages
concluded under any tradition, or a system of religious, personal or family
law; or
(ii)
systems
of
personal and family law under any tradition, or adhered to by persons
professing a particular religion.
(
b
) Recognition in
terms of paragraph (a) must be consistent with this section and the other
provisions of the Constitution.”
[25]
See
Amod v Multilateral Motor Vehicle
Accidents Fund (Commission for Gender Equality intervening)
1999 (4) SA
1319
(SCA);
1999 (4) All SA 421
(SCA), and
Ryland v Edros
1997 (2) SA
690
(C);
1997 (1) BCLR 77
(C).
[26]
The historic hurt caused is captured in
S Narayan (ed)
The Selected Works
of Mahatma Gandhi: Satyagraha in South Africa
vol 3 (Navajivan Publishing
House, India 1928) at 377–8, M K Gandhi refers to “the terrible judgment” in
the Cape Supreme
Court setting aside the practice of forty years, which
“. .
.
thus
nullified in
South Africa
at a stroke of the pen
all marriages celebrated according to the Hindu, Musalman and Zoroastrian
rites.  The many married
Indian women in
South Africa
in terms of this
judgement ceased to rank as the wives of their husbands and were degraded to
the rank of concubines, while their
progeny were deprived of their right to
inherit the parents’ property.  This was an insufferable situation for
women no
less than men, and the Indians in
South Africa
were deeply agitated”.
The shock to Indian women was so great that for the first time they
joined in the Satyagraha campaign.  Gandhi continued at
388:
“It
was an absolute pure sacrifice that was offered by these sisters, who were
innocent of legal technicalities, and many of whom
had no idea of country,
their patriotism being based only upon faith.  Some of them were
illiterate and could not read the
papers.  But they knew that a mortal
blow was being aimed at the Indians’ honour, and their going to jail was a cry
of agony
and prayer offered from the bottom of their heart, and was in fact the
purest of all sacrifices.”
The “terrible judgment” is reported as
Esop
v Union Government (Minister of the Interior)
1913 CPD 133.
Counsel for the government argued that “Mariam is in law
the concubine and not the wife of the applicant.”
At 134.
And Searle J said that “[t]he courts of this country have always set their
faces against recognition of these so-called
Mahommedan marriages as legal
unions . . .” at 135.  See also Cachalia “Citizenship, Muslim family law
and a future South
African constitution: a preliminary enquiry”
(1993) 56
THRHR
392
at 398–9.  It should be remembered that religious marginalisation
coincided strongly with racial discrimination, social exclusion
and political
disempowerment.
[27]
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC).
[28]
Id at paras 21-2.
[29]
The situation is comparable to the “Persons”
cases where for sixty years courts in
Britain
and the former
British Empire
held that
statutes granting franchise and other rights to all persons with certain
qualifications did not include women because
they were not covered by the word
“person”.  See Sachs and Wilson
Sexism and the Law
:
A Study of
Male Beliefs and Judicial Bias
(Free Press, New York 1979) p 22–40.
See
Schlesin v Incorporated Law Society
1909 TS 363
(Miss Schlesin
wished to be articled to M K Gandhi);
Incorporated Law Society v Wookey
1912
AD 623.
[30]
Section 1(b).
[31]
The importance of
looking at patterns of systematic disadvantage was referred to in
Brink v
Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
(CC);
President of
the Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997
(6) BCLR 708
(CC); and
Harksen v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC).
[32]
In
Glazer v
Glazer NO
1963 (4) SA 694
(A)
after a lengthy consideration of the
Roman-Dutch law authorities, the Appellate Division concluded that under
Roman-Dutch law the
widow had no claim for maintenance out of the estate of her
deceased husband and that it would not be appropriate or necessary to
develop
the law in this respect.  At 707B-C, Steyn CJ reasoned as follows:
“However close the relationship between husband
and wife, it is terminable, and
not the same as the immutable natural relationship between parent and
child.  It is by no
means self-evident that denial of a widow’s claim
would be an inconsistency or anomaly in a legal system which recognises the

claim of a child, or that acceptance of the one must of necessity or logically
embrace the other.”  An important purpose
of the Acts under consideration
in this case was to fill the consequent gap in our law.  See Keyser “Law
of Persons and
Family Law” 1990
Annual Survey of South African Law
1 at
3; Van Heerden et al
Boberg’s Law of Persons and the Family
2 ed (1999)
at 272–4.
[33]
Above n 25.
[34]
Id at para 20.
[35]
Id
[36]
Id
at para 25.
[37]
[1967] 1 All ER 750
(QB).
[38]
Id at 753.
[39]
Amod
above n 25.
[40]
They include: Civil Proceedings Evidence
Act 25 of 1965 (section 10A recognises religious marriages for the purposes of
the
law of evidence); Criminal Procedure Act 51 of 1977 (section 195(2)
recognises religious marriages for the purposes of the compellability
of
spouses as witnesses in criminal proceedings); Pension Funds Act 24 of 1956
(section 1(b)(ii): definition of “dependent”);
Special Pensions Act 69 of 1996
(section 31(b)(ii): definition of “dependent”); Government Employees Pension
Law Proclamation
21 of 1996 (section 1(b)(ii): definition of “dependent” and
schedule 1 item 1.19, definition of “spouse”); Demobilisation
Act 99 of 1996
(section 1(vi)(c): definition of “dependent”); Value-Added Tax Act 89 of 1991
(Notes 6 and 7 to item 406.00
of Schedule 1 recognise religious marriages for
the purposes of tax exemptions in respect of goods imported into South Africa);

Transfer Duty Act 40 of 1949 (section 9(1)(f) read with the definition of
“spouse” in section 1 exempts from transfer duty
property inherited by the
surviving spouse in a religious marriage); Estate Duty Act 45 of 1955 (section
4(q) read with the definition
of “spouse” in section 1 exempts from estate duty
property accruing to the surviving spouse in a religious marriage).
[41]
Act 96 of 1991.
[42]
Act
88 of 1989.
[43]
Above n 7 at
988C-E.
[44]
Id at 988E.
[45]
Above n 11 at para
9.
[46]
Amod
above n 25 at para 20.
Description
of Islamic marriage and its consequences in
Fraser v Children’s Court,
Pretoria
North and Others
1997 (2) SA 261
(CC);
1997 (2) BCLR 153
(CC)
at para 21.
[47]
Above n 10 at para
26.
[48]
See n 40 above.
[1]
National Coalition for Gay and
Lesbian Equality and
Another
v Minster of Home Affairs
and Others
[1999] ZACC 17
;
2000 (2)
SA 1
(CC);
2000 (1) BCLR 39
(CC).
[2]
Satchwell v President
of the
Republic
of
South Africa
and
Another
[2002] ZACC 18
;
2002 (6) SA 1
(CC);
2002 (9) BCLR 986
(CC).
[3]
2001(1) SA 545(CC);
2000 (10) BCLR
1079
(CC) at paras 21-2.
[4]
Section 7(1) of
the Constitution.
[5]
Above n 3.
[6]
Id at para 24.
[7]
Id
at para 23.
[8]
Moller v Keimoes
School Committee and Another
1911 AD 635.
[9]
Id
[10]
The term “European” was used in those days to
refer to white people.
[11]
Above
n 8 per Innes J at 647.
[12]
The other members of the court who wrote
separately reached the same conclusion as the Chief Justice.
[13]
Above n 8 at 643.
[14]
Id at 643-4.
[15]
Seedat’s
Executors v The Master (
Natal
)
1917 AD 302.
[16]
Ismail v Ismail
1983 (1) SA
1006
(A).
[17]
Above n 15 at 308.
[18]
Id at 307.
[19]
Above n 16 at
1026B.
[20]
Id at 1024 D-E.
[21]
Section 9(3) of the Constitution:
“The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds, including race, gender,
sex,
pregnancy, marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief,
culture, language and birth.”
[22]
Section 15(3
)(
a)(i) of the Constitution does not prevent legislation
recognising:
“
marriages
concluded under any
tradition, or a system of religious, personal or family law.”
[23]
See the judgment of Moseneke J at para 77.
[24]
Act 81 of 1987.
[25]
Act
27 of 1990.
[26]
Id
[
27
]
Section
39(2) of the Constitution 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.”
[28]
Above n 1 at para
25; above n 2 at para 9.
[29]
Id
[1]
The judgment is reported as
Daniels v
Campbell
NO and
Others
2003 (9) BCLR 969
(C) (The High Court
judgment).
[2]
Act
81 of 1987.
[3]
Act
27 of 1990.
[
4
]
[5]
Act 25 of 1961.
In the case of “spouse”,
section 1(4)
of the
Intestate Succession
Act, and
of “survivor” section 1 of the Maintenance of Surviving Spouses Act.
[6]
For an extensive discussion and critique of the
attitude of the courts towards Muslim marriages see Bonthuys “The South African

Bill of Rights and the development of family law”
(2002) 119
SALJ
748
;
Van Heerden et al
Boberg’s Law of Persons and The Family Law
2 ed (Juta
& Co, Ltd, Cape Town 1999) at 164-8; Rautenbach and Goolam
Introduction
to Legal Pluralism in South Africa
Part IV Chapter 3.
[
7
]
1997 (2) SA 261
(CC);
1997 (2) BCLR 153
(CC).
[8]
1917 AD 302.
[9]
1983 (1) SA 1006
(A).
[10]
1997 (2) SA 690
(C).
[11]
Above n 7 at para
21.
[12]
Above n 8 at 309.
See also
Bronn v Fritz
Bronn’s Executors
(1860) 3 Searle 313
;
Ebrahim v Mahomed Essop
1905
TS 59
;
Esop v Union Government
1913 CPD 133
;
R v Mboko
1910 TS
445
at 449;
Nalana v Rex
1907 TS 407.
[13]
Above n 9 at
1026B.
[14]
Id
at 1021.
[15]
Above n 10.
For a critical discussion of
the legal rules and precedent regulating Muslim marriages see Van Heerden et al
above n 6 at
168.
[16]
1999 (4) SA 1319
(SCA).
[17]
Id
at paras 19-20 and 25.
For a trenchant criticism of the
Amod
judgment
see Goldblatt “
Amod v Multilateral Motor Vehicle Accidents Fund (Commission
for Gender Equality intervening)
1999 (4) SA 1319
(SCA)” (2000) 16
SA
Journal of Human Rights
138.  Criticism centres
around
the failure of the court to reject the earlier reasoning of
Ismail
and
the failure to develop the law towards a broad, inclusive notion of “family”.
In essence, Goldblatt sees the court’s
approach as being too narrow.
[18]
Van Heerden et al
above n 6 at 168.
[19]
Above
n 16 at para 23.
[20]
Section 10.
[21]
Section
9.
[22]
Section
15.
[23]
Section 15(3)
states that:
“(
a
) This section does not prevent legislation recognising —
(i)
marriages
concluded under any tradition, or a system of
religious, personal or family law; or
(ii)
systems
of personal and family law under any tradition, or adhered to by persons
professing a particular religion.”
[24]
It is not permissible to attack statutes
collaterally.  The constitutional challenge of a statute must be explicit
and with
due notice to all affected.  This requirement ensures that the
correct order is made, that all interested parties have an opportunity
to make
representations and that the requirements of the separation of powers are
respected.  See in this regard
Member of the Executive Council for
Development Planning and Local Government in the Provincial Government of
Gauteng v Democratic
Party and Others
[1998] ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR
855
(CC) at paras 61-4.  See also
Ingledew v The Financial Services
Board: In Re Financial Services Board v Van der Merwe and Another
[2003] ZACC 8
;
2003 (4)
SA 584
(CC)
;
2003 (8) BCLR 825
(CC) at paras 20 and 24;
Schabir Shaik
v Minister of Justice and Constitutional Development and Others
CCT 34/03;
11 December 2003, as yet unreported at paras 23-5.
[25]
Civil Proceedings Evidence Act 25 of
1969 (section 10A recognises religious marriages for the purposes of the
compellability of
spouses as witnesses in civil proceedings); Criminal
Procedure Act 51 of 1977 (s 195(2) recognises religious marriages for the
purposes of the compellability of spouses as witnesses in criminal
proceedings); Taxation Laws Amendment Act 5 of 2001 (inserts
a wider definition
of “spouse” into
Transfer Duty Act 40 of 1949
, which in turn exempts from
transfer duty property inherited by the surviving spouse in a religious marriage);
Government Employees
Pension Law 1996, Proclamation 21 of 1996
(s 1:
definition
of “dependent” and schedule 1 item 1.19, definition of “spouse”); Estate Duty
Act 45 of 1955 (s 4(q) read with
the definition of “spouse” in s 1 exempts from
estate duty property  accruing to the surviving spouse in a religious
marriage);
Child Care Act 74 of 1983, as amended by the Child Care Amendment
Act 96 of 1996 (s1(d) widens the definition of “marriage”
to include any
marriage concluded in accordance with a system of religious law).
[26]
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others
2000 (2) SA 1
(CC) at para 47
[1999] ZACC 17
; ;
2000 (1) BCLR 39
(CC);
Dawood and Another v Minister of
Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and
Others; Thomas and
Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3)
SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 31;
Satchwell v President of the
Republic of South Africa and Another
[2002] ZACC 18
;
2002 (6) SA 1
(CC);
2002 (9) BCLR 986
(CC) at paras 12-3.
[27]
Du Toit and
Another
v Minister of Welfare and Population Development and Others
[2002] ZACC 20
;
2003 (2) SA 198
(CC);
2002 (10) BCLR 1006
(CC).
[28]
Id at para 19.
[29]
Above n 26.
[30]
Id at para 26.
[31]
Above n 1 at
985F-I.
[32]
A similar
interpretive approach was endorsed and applied by the Canadian Supreme Court in
Miron v Trudel
(1995) 29 CRR (2d) 189 at 197-8 in an equality claim in
which undefined word “spouse” had to be interpreted.
[33]
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.”
[34]
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 37.
[35]
There is no
substantive difference between the two methods of interpretation in the interim
and final Constitutions.
Govender v Minister of Safety and Security
2001 (4) SA 273
(SCA);
2001 (11) BCLR 1197
(SCA);
Investigating Directorate:
Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd:
In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC)
at para 21;
De Lange v
Smuts
NO
and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at paras 23-4.
[36]
2002 (1) SA (429) (CC);
2001 (11) BCLR 1109
(CC).
[37]
Id at para 24.
See also
Bernstein and
Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC)
at para 59 and the authorities referred to in footnote 87 thereof;
Nel v Le
Roux NO and Others
[1996] ZACC 6
;
1996 (3) SA 562
(CC);
1996 (4) BCLR 592
(CC) at para 18;
De Lange
above n 35 at para 85;
Hyundai
above n 35 at paras 22–6.
[38]
Bernstein
above n 37 at paras 59-64;
Nel v
Le Roux NO and
Others
above n 37 at paras 8-9 and
18;
Shabalala and Others v Attorney-General of the Transvaal and Another
[1995] ZACC 12
;
1996
(1) SA 725
(CC);
1995 (12) BCLR 1593
(CC) at para 9;
Afrox Healthcare Bpk v
Strydom
2002 (6) SA 21
(SCA) at paras 26-9.
[39]
Du Plessis
Re-interpretation
of Statutes
(Butterworths, Durban 2002) at 135.
[40]
Chaskalson et al
Constitutional Law of South
Africa
(Juta and Co Ltd, Cape Town 1996) at 11-28; see also
S v Mhlungu
and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC) at para 78.
[41]
S
v Zuma
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at para 18.
[42]
De Lange
above n 35.
[43]
Hyundai
above n 35 at para 24.
[44]
Gay and Lesbian
Equality
above n 26
at para 24.
[45]
Judgment of Sachs
J at para 34.
[46]
Union
Government (Minister of Finance) v Mack
1917 AD 731
at 739.
[47]
Dicta to that
effect are found in cases such as
Bhyat v Commissioner for Immigration
1932
AD 125
at 129.
[48]
1951 (4) SA 400
(A).
[49]
Id at 410F-H.
[50]
Du Plessis and
Others v De Klerk and Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at para 38;
Association
of Amusement and Novelty Machine Operators and Another v Minister of Justice
and Another
1980 (2) SA 636
(A) at 660F-H.
[51]
The New Shorter
Oxford
English
Dictionary
(Clarendon
Press, 1993).
[52]
Gay and Lesbian
Equality
above n 26.
[53]
Id
at para 25.
[54]
Id
[55]
Id
[56]
Satchwell
above n 26.
[57]
Id at para 9.
[58]
Van der Walt v
Metcash Trading Limited
[2002] ZACC 4
;
2002 (4) SA 317
(CC);
2002 (5) BCLR 454
(CC) at para 65-71;
De Lange
above n 35 at para 46.
[59]
Hahlo and Kahn
The
South African Legal System and its Background
(Juta & Co Ltd, Cape Town
1968) at 214 describe the necessity for
stare decisis
as follows:
“The maintenance of the certainty of the law and of
equality before it, the satisfaction of the legitimate expectations,
entail
a general duty of the judges to follow legal ruling
in previous judicial decisions.  The individual litigant would feel
himself
unjustly treated if a past ruling applicable to his case were not
followed where the material facts were the same.”
[60]
1938 AD 195.
[61]
Id at 232.
[62]
Harris and
others v Minister of the Interior and Another
1952 (2) SA 428
(A) at 452-4.
[63]
Van der Walt
above n 58 at para 39.
[64]
The standard of the US Supreme
Court for overriding its own previous judicial decisions is high.  In
Brown v Board of Education
347
US
483
(1954),
it was held that where the philosophy of the past does
not reflect the development of present, the Courts will be permitted to move

away from its own decisions.
Similarly
, i
n
Payne v Tennessee
[1991] USSC 131
;
501 US 808
,
828 (1991) it was held that the doctrine of
precedent is not a mechanical formula of adherence but a principle of policy.
In
Dickerson v U
nited
S
tates
[2000] USSC 59
;
530 US 428
,
443
(2000)
Chief Justice Rehnquist writing for the court,
stipulated that:
“While
stare decisis
is not an inexorable command,
particularly when we are interpreting the
Constitution,
even
in
constitutional cases, the doctrine carries such persuasive force that we
have always  require a departure from precedent to
be supported by some
‘special justification’.
”
(internal citations
omitted)
Canada
also
holds a high standard in
departing from its own precedent.  In
R v Bernard
[1988] 2 S.C.R.
833
the Canadian Supreme Court laid down four principles in determining
whether to move away from its own precedent.  These are
:
(a) whether
the rule or principle under consideration must be varied in order to avoid a
Charter breach;
(b) whether
the rule or principle under consideration has been attenuated or undermined by
other decisions of this or other appellate
court
s
;
(c) whether
the rule or principle under consideration has created uncertainty or
has become unduly and unnecessarily complex
and technical;
and
(d
) whether the proposed change
in the rule or principle is one which broadens the scope of criminal liability
or is otherwise unfavourable
to the position of the accused.
[65]
Section 11(1) of
the Marriage Act above n 4.
[66]
Gay and Lesbian
Equality
above n 26
at para 26.
[67]
Satchwell
above n 26 at para 9.
[68]
Corbett, Hofmeyr and Kahn
The Law of
Succession in South Africa
2 ed (Juta and Co Ltd, Cape Town 2001) at 562-6;
Glazer v Glazer NO
1963 (4) SA 694
(A).
[69]
Main judgment
paras 25-7.
[70]
Gay and Lesbian
Equality
above n 26 at para 37.
[71]
Id at para 37
(internal citations omitted).
This dictum was specifically relied upon in the recent SCA
decision of
Du Plessis v Road Accident Fund
2003 (11) BCLR 1220
(CC) at
para 38.
[72]
For example, according to the Muslim Judicial
Council,
Cape Town
there are no Imams registered
as marriage officers in the
Western
Cape
.
[73]
Gay and Lesbian
Equality
above n 26
at paras 17-8.
[74]
It is worth noting that despite the fact
that the main judgment relies on
Amod
for support, that judgment is in
fact against recognition.  It tacitly accepts that Muslim de facto
monogamous marriages cannot
be brought under the heading of a valid marriage at
para 25: “If the marriage between the dependent and the deceased was a valid

marriage in terms of civil law . . . .”
[75]
Section 8 of the interim Constitution states
that:
“(1)
Every
person shall have
the right to equality before the law and to equal protection of the law.
(2) 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.
(b) Every person or
community dispossessed of rights in land before the commencement of this
Constitution
under any law which would have been inconsistent with subsection
(2) had that subsection been in operation at the time of the dispossession,

shall be entitled to claim restitution of such rights subject to and in
accordance with sections 121, 122 and 123.
(4) 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, until the contrary is
established.”
[76]
Above n 7 at para 20;
President
of the Republic of South Africa v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR
708
(CC) at para 74;
Brink v Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6)
BCLR 752
(CC) at para 33;
Shabalala
above n 38 at para 26;
S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (2) SACR 1
(CC);
1995 (6)
BCLR 665
(CC) at para 155-66;
Satchwell
above n 26 at para 18.
[
77
]
Recognition of Customary Marriages Act 120 of
1998
.
[78]
The City of
Cape Town
allocated the
property to the applicant after her first divorce.  However, she later
informed the City of
Cape Town
of her marriage to the deceased and the tenancy of the property was transferred
into his name.  The housing policy of the
time stipulated that a married
woman could not hold a lease.
[79]
It is significant that patriarchal norms have
meant that it is usually women who have been dispossessed through their
non-recognition
in the Acts — this must amount to indirect discrimination under
the reasoning in
Pretoria City Council v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC);
1998 (3) BCLR 257(CC).
[
80
]
The primary recommendations for the proposed
Muslim Marriages Act are that c
ouples contemplating a
marriage should have the right to choose a marital system which is compatible
with their religious beliefs
and with the Constitution; that the new statute
should provide for both new and existing marriages; that future marriages should

be capable of registration although existing marriages should require
satisfactory proof of their existence prior to registration;
and that parties
should be able to choose and regulate their matrimonial property regimes.
[81]
It has been
articulated that any government regulation on religion should not transgress on
religious voluntarism; respect the identity
of religious groups; prevent the
government from improper religious involvement; and protect religion from
government to maintain
the autonomy of religious institutions. Some authors
(notably Professor Ziyad Motala) seem to think that t
he
draft Bill contravenes the above requirements.  They argue that
first,
under the Bill the state would force a Muslim person
to practice their religion in a particular way under threat of sanctions.

Second, the Bill intrudes on the religious identity of the group
affected.  Third, it provides a manner in which the government
may
pronounce on matters of Islamic.  Fourth, the Bill undermines the autonomy
of religious institutions and substitutes that
autonomy with state
coercion.  In its totality, therefore, the Bill would represent a coercive
and intrusive means to control
the religious beliefs and practice of people.
If the Bill becomes law, this could result in unnecessary conflict between
large sectors of the Muslim population and the state, which in turn may result
in the weakening of the political community.
The Commission’s view about the adoption of the draft Bill is, however,
different from the above.  According to the Commission,
such an adoption
will go a long way in creating legal certainty with regard to Muslim marriages,
will give effect to Muslim values
and will afford better protection to women in
those marriages in accordance with Islamic and constitutional tenets.
[82]
Section 172(1
)(
a) and
(b) of the final Constitution provide for that.  For a proper formulation
of appropriate relief see
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997
(3) SA 786
(CC);
1997 (7) BCLR 851
(CC);
Gay and Lesbian Equality
case
above n 26 at paras 63-88.