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[2009] ZACC 19
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Hassam v Jacobs NO and Others (CCT83/08) [2009] ZACC 19; 2009 (11) BCLR 1148 (CC) ; 2009 (5) SA 572 (CC) (15 July 2009)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 83/08
[2009] ZACC 19
FATIMA
GABIE HASSAM Applicant
versus
JOHAN
HERMANUS JACOBS NO First Respondent
MASTER OF
THE HIGH COURT Second Respondent
MARIAM
HASSAM Third Respondent
MARIAM
HASSAM NO Fourth Respondent
MINISTER
FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Fifth
Respondent
with
MUSLIM
YOUTH MOVEMENT OF SOUTH AFRICA First Amicus Curiae
WOMEN’S
LEGAL CENTRE TRUST Second Amicus Curiae
Heard
on : 19 February 2009
Decided
on : 15 July 2009
JUDGMENT
NKABINDE
J:
Introduction
Before
us is an application for confirmation of a declaration of
constitutional invalidity of section 1(4)(f) of the Intestate
Succession Act
1
(the Act) made by Van Reenen J in the Western Cape High Court, Cape
Town.
2
The declaration has been referred to this Court pursuant to
section
172(2)(a) of the Constitution.
3
The impugned provisions were found to exclude widows of
polygynous
4
marriages celebrated according to the tenets of the Muslim
religious faith in a discriminatory manner from the protection of
the Act.
In essence, this case
concerns
the proprietary consequences of a polygynous Muslim marriage within
the context of intestate succession.
The
pertinent parts of the order of the High Court read:
“
23.2 It is declared that
section 1(4)(f)
of the
Intestate Succession Act 81 of 1987
is
inconsistent with the Constitution, to the extent that it makes
provision for only one spouse in a Muslim marriage to be an
heir in
the intestate estate of their deceased husband.
23.3
Section 1(4)(f)
of the
Intestate Succession Act 81 of 1987
is to be read as though the
whole of it was substituted by the following:
‘
In the application of
sections 1(1)(c)(i)
to the estate of a deceased person who is
survived by more than one spouse:
A child’s share in
relation to the intestate estate of the deceased, shall be
calculated by dividing the monetary value
of the estate by a number
equal to the number of the children of the deceased who have either
survived or predeceased such
deceased person but are survived by
their descendants, plus the number of spouses who have survived
such deceased;
Each surviving spouse shall
inherit a child’s share of the intestate estate or so much of
the intestate estate as does
not exceed in value the amount fixed
from time to time by the Minister for Justice and Constitutional
Development by notice
in the Gazette, whichever is the greater; and
(c) Notwithstanding the
provisions of sub-para (b) above, where the assets in the estate are
not sufficient to provide each spouse
with the amount fixed by the
Minister, the estate shall be equally divided between the surviving
spouses.’”
Brief
facts
The
facts relating to this case have been set out in the judgment of
the High Court and need not be restated in detail.
5
It suffices, for the purpose of this judgment, to state that the
applicant was married to Mr Ebrahim Hassam (the deceased)
in
accordance with Muslim rites. The deceased married a second wife,
Mrs Mariam Hassam, also according to Muslim rites without
the
applicant’s knowledge or consent. The deceased died
intestate in August 2001. His death certificate shows that
he was
“never married”. The first respondent refused to
regard the applicant as a spouse for the purposes of the
Act.
The
first respondent is cited in his official capacity as the executor
of the deceased’s estate. He abides by the decision
of this
Court. The Master of the High Court is the second respondent,
while the deceased’s second wife is cited as the
third and
fourth respondent;
she is cited both in her
personal capacity and in her capacity as the mother and natural
guardian of the three minor children
born of her marriage with the
deceased.
Neither opposes the application. The fifth
respondent, the Minister for Justice and Constitutional Development
(the Minister),
filed written submissions and supported the
application for confirmation of the order of the High Court. The
Muslim Youth
Movement of South Africa (the MYM)
6
and the Women’s Legal Centre Trust (the Trust),
7
which were admitted as amici curiae, filed helpful submissions and
supported the confirmation of the declaration of constitutional
invalidity.
Proceedings
in the High Court
The
applicant approached the High Court and initially sought an order,
among other things, entitling her to be recognised as
a spouse and
surviving spouse of the deceased for the purposes of the Act and
the Maintenance of Surviving Spouses Act (Maintenance
Act),
8
respectively, and directing the executor of the deceased’s
estate to give effect to that recognition. She also sought
costs
in the event the application was opposed.
The
executor questioned the validity of the applicant’s marriage
to the deceased. In particular, he questioned whether
their
marriage was still extant at the time of the deceased’s
death. If it was, it was contended that the deceased would
have
been involved in a “polygamous relationship” with the
applicant and Mrs Mariam Hassam. Save for the executor,
none of
the respondents had placed the validity of the deceased’s
marriage to the applicant in dispute. The High Court,
relying on
the rule enunciated in
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
,
9
found that the marriage was extant at the time of the deceased’s
death.
10
No one has challenged this finding and we proceed on the basis
that the marriage subsisted at the time of the deceased’s
death. The applicant also challenged the constitutional validity
of section 1(4) of the Act.
11
She maintained that the word “spouse” in that section
should include a husband or wife married in terms of Muslim
rites
regardless of whether the marriage is monogamous or polygynous. By
excluding her from the definition of “spouse”
because
she was party to a polygynous union, the applicant contended that
the Act unfairly limits her right to religious freedom
and equality
before the law.
The
High Court then considered the constitutionality of the impugned
provision against the factual backdrop that the applicant
was a
party to a polygynous Muslim marriage who sought to inherit
intestate following the death of her husband. Having had
regard to
Daniels v Campbell NO and Others,
12
the High Court considered whether an interpretation which fails to
accord widows in polygynous Muslim marriages the benefits
provided
for in the Act passes constitutional muster.
The High Court
held:
“
Marriages concluded
under Muslim private law are potentially polygynous as the male in
such a union, subject to compliance with
the onerous prescripts of
the Qur’an, is permitted to marry more than one woman. Unless
the concept ‘spouse’
. . . [is] construed to encompass
also widows of polygynous Muslim marriages
the practical effect
would be that the widows of such marriages will be discriminated
against solely because of the exercise by
their deceased husbands of
the right accorded them by the tenets of a major faith to marry more
than one woman. Such discrimination
would not only amount to a
violation of their rights to equality on the basis of marital
status, religion (it being an aspect
of a system of religious
personal law) and culture but would also infringe their right to
dignity
. . . [D]iscrimination of that kind is presumptively
unfair unless valid grounds exist under Section 36 of the
Constitution for
limiting their rights as regards equality and human
dignity.”
13
(Emphasis added.)
In
concluding, the High Court held that the exclusion of widows of
polygynous Muslim marriages from the benefits of the Act
would be
unfairly discriminatory and in conflict with the equality
provisions in the Constitution. The provisions of the Act,
the
High Court remarked, “save for section 1(4)(f), are readily
capable of being applied to spouses in polygynous marriages
in that
each spouse would be entitled to a child’s portion of the
estate, if there are descendants and an equal share
if there are
none.”
14
In
this Court
The
applicant’s argument was largely devoted to the equality
provisions in the Constitution. It was submitted that the
facts
clearly demonstrate unfair discrimination in respect of widows of
polygynous Muslim marriages because a failure to include
such
widows within the ambit of the Act differentiates in three ways,
between—
widows
married in terms of the Marriage Act
15
and those in polygynous Muslim marriages;
widows
in monogamous Muslim marriages and those in polygynous Muslim
marriages; and
widows
in polygynous customary marriages
16
and those in polygynous Muslim marriages.
The
applicant argued that widows in her position are unfairly
discriminated against on the listed grounds of gender, marital
status and religion.
Relying
on
S v Jordan and Others (Sex Worker Education & Advocacy
Task Force and Others as Amici Curiae)
17
the
applicant contended that the failure to
include spouses of polygynous Muslim marriages within the ambit of
the Act indirectly
discriminates against women in those marriages
on the ground of gender. This discrimination stems from the
reality that women
constitute a particularly vulnerable segment of
the population and that, in practice, the Act benefits mainly
widows rather
than widowers. They submitted further that the Act
operates to the detriment of Muslim women but not Muslim men
because only
Muslim men may have multiple spouses under Islamic
Law.
Relying
on
Daniels
, the applicant submitted that discrimination
occurs on the ground of marital status in instances where
legislative protection
is withheld from certain relationships. In
withholding certain protections provided for in the Act from
persons in polygynous
Muslim marriages, the applicant submitted
that she is being discriminated against on the ground of marital
status.
In
relation to the ground of religion, the applicant submitted that
the exclusion of persons in polygynous Muslim marriages
from the
ambit of the Act will result in an infringement of sections 15, 30
and 31 of the Constitution. The conclusion of
a polygynous Muslim
marriage is an element of the right and freedom associated with
religious and cultural choices. The failure
of the Act to
recognise such marriages thus also constitutes discrimination on
the ground of religion.
The
applicant contended that there is no rational relationship between
the differentiation in question and a legitimate governmental
purpose proffered to validate it because the scheme in the Act
confers benefits and imposes burdens unevenly. These submissions
were supported by the Minister, the Trust and the MYM. The
applicant further contended that the failure to interpret the word
“spouse” so as to include widows whose marriages are
celebrated in accordance with Muslim rites infringes the rights
to
freedom of religion, conscience, belief and opinion, and to the
enjoyment of culture under sections 15(1)
18
and 31(1)
19
of the Constitution, respectively.
The
MYM’s contentions were largely devoted to freedom of religion
and culture. It was contended that women in polygynous
Muslim
marriages still suffer the serious effects of non-recognition. It
was argued that this unequal treatment constitutes
unfair
discrimination on the grounds of religion. The MYM argued further
that their non-recognition prejudices widows of polygynous
Muslim
marriages in that it fails to have regard to their lived reality
and to accommodate diversity within a heterogeneous
society.
As
to remedy, the parties contended that an order similar to that made
in
Bhe
,
20
which would cater for the recognition of women in polygynous Muslim
marriages as spouses for the purposes of intestate succession,
would be appropriate.
Before
I identify the issues for determination in this matter, it is
important to stress what this case is not about.
This
case, properly understood, is not concerned with the constitutional
validity of polygynous marriages entered into in accordance
with
Muslim rites. The applicant advanced argument on sections 15, 30
and 31 of the Constitution. In the view I hold of the
matter, it
is not necessary to become entangled in the religious and cultural
debates in this matter. It should also be emphasised
that this
judgment does not purport to incorporate any aspect of Sharia law
into South African law.
This
Court in
Daniels
dealt with monogamous Muslim marriages for
the purposes of the Act, but left open the issue regarding the
inclusion of polygynous
Muslim marriages. This judgment deals with
the latter.
I
now turn to deal with the issues raised.
Issues
The
following issues arise for consideration:
Does
the exclusion of spouses in polygynous Muslim marriages from the
intestate succession regime as established by the Act
violate
section 9(3) of the Constitution? In particular:
Does
the exclusion constitute discrimination?
If
so, does it constitute unfair discrimination?
If
so, is this unfair discrimination justifiable under section 36 of
the Constitution?
If
this exclusion violates section 9(3) of the Constitution, can the
word “spouse” in the Act be read to include
spouses in
polygynous Muslim marriages?
If
such an interpretation is not possible, what is the appropriate
relief?
It
is convenient to now deal with the equality analysis and
jurisprudence that has developed over the years through the
pronouncements
of this Court.
Equality
jurisprudence
This
Court has on numerous occasions dealt with challenges to
legislative enactments that were said to infringe the right to
equality under section 9 of the Constitution. The resultant
jurisprudence has developed into a comprehensive set of principles,
which have been applied on numerous occasions and within a variety
of contexts.
21
Section 9 provides:
“
(1) Everyone
is
equal before the law and has the right to equal protection and
benefit of the law.
(2) Equality
includes the full and equal enjoyment of all rights and freedoms.
To promote the achievement of equality, legislative
and other
measures designed to protect or advance persons, or categories of
persons, disadvantaged by unfair discrimination may
be taken.
(3) The state may not unfairly
discriminate directly or indirectly against anyone on one or more
grounds, including race, gender,
sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief,
culture, language and
birth.
(4) No
person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3).
National
legislation must be enacted to prevent or prohibit unfair
discrimination.
(5) Discrimination on one or
more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination
is fair.”
The
equality analysis was summarised in
Harksen
22
as follows:
“
(a) Does the provision
differentiate between people or categories of people? If so, does
the differentiation bear a rational
connection to a legitimate
government purpose? If it does not then there is a violation of
section 8(1). Even if it does bear
a rational connection, it might
nevertheless amount to discrimination.
Does the differentiation
amount to unfair discrimination? This requires a two stage
analysis:
Firstly, does the
differentiation amount to ‘discrimination’? If it is
on a specified ground, then discrimination
will have been
established. If it is not on a specified ground, then whether or
not there is discrimination will depend upon
whether, objectively,
the ground is based on attributes and characteristics which have
the potential to impair the fundamental
human dignity of persons as
human beings or to affect them adversely in a comparably serious
manner.
If the differentiation amounts
to ‘discrimination’, does it amount to ‘unfair
discrimination’? If it
has been found to have been on a
specified ground, then unfairness will be presumed. If on an
unspecified ground, unfairness
will have to be established by the
complainant. The test of unfairness focuses primarily on the
impact of the discrimination
on the complainant and others in his
or her situation.
If, at the end of this stage of
the enquiry, the differentiation is found not to be unfair, then
there will be no violation of
section 8(2).
(c) If the discrimination is
found to be unfair then a determination will have to be made as to
whether the provision can be justified
under the limitations clause
(section 33 of the interim Constitution).”
23
The
approach to legislative interpretation
Section
39(2)
24
of the Constitution enjoins every court to promote the spirit,
purport and objects of the Bill of Rights when, inter alia,
interpreting any legislation.
25
South African history, as this Court has stated in
Brink
,
26
is of particular relevance to the concept of equality. In
Daniels,
this Court held that “[d]iscriminatory
interpretations deeply injurious to those negatively affected were
in the conditions
of the time widely accepted in the courts. They
are no longer sustainable in the light of our Constitution.”
27
(Footnote omitted.)
The
approach adopted in
Daniels
has been reaffirmed by this
Court in a number of its subsequent decisions.
28
Ngcobo J in
Daniels
, correctly observed that apartheid
legislation was—
“
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.”
29
(Footnote omitted.)
The
prejudice directed at the Muslim community is evident in the
pronouncement by the Appellate Division in
Ismail v Ismail
.
30
The Court regarded the recognition of polygynous unions solemnised
under the tenets of the Muslim faith as void on the ground
of it
being contrary to accepted customs and usages, then regarded as
morally binding upon all members of our society. Recognition
of
polygynous unions was seen as a retrograde step and entirely
immoral. The Court assumed, wrongly, that the non-recognition
of
polygynous unions was unlikely to “cause any real hardship to
the members of the Muslim communities, except, perhaps,
in isolated
instances.”
31
That interpretive approach is indeed no longer sustainable in a
society based on democratic values, social justice and fundamental
human rights enshrined in our Constitution. The assumption made in
Ismail
, with respect, displays ignorance and total disregard
of the lived realities prevailing in Muslim communities and is
consonant
with the inimical attitude of one group in our
pluralistic society imposing its views on another.
Contrasting
the ethos which informed the boni mores before the new
constitutional order with that which informs the current
constitutional dispensation, the question remains whether affording
protection to spouses in polygynous Muslim marriages under
the Act
can be regarded as a retrograde step and entirely immoral? The
answer is a resounding No. I emphasise that the content
of public
policy must now be determined with reference to the founding values
underlying our constitutional democracy, including
human dignity
and equality, in contrast to the rigidly exclusive approach that
was based on the values and beliefs of a limited
sector of society
as evidenced by the remarks in
Ismail
.
32
In
assessing the constitutional validity of the impugned legislative
provisions in this case, regard must also be had to the
diversity
of our society which provides a blue print for our constitutional
order and influences the interpretation of our
supreme law –
the Constitution – which in turn shapes ordinary law.
Our
diversity is also affirmed in the preamble to the Promotion of
Equality and Prevention of Unfair Discrimination Act,
33
the aim of which is to facilitate our transition into “a
democratic society, united in its diversity, marked by human
relations that are caring and compassionate, and guided by the
principles of equality, fairness, equity, social progress, justice,
human dignity and freedom.”
34
The
interpretive approach enunciated by this Court will ensure the
achievement of the progressive realisation of our “transformative
constitutionalism”.
35
This approach resonates with the founding values now informing the
assessment of the prevailing boni mores of our society
and thus
affords the necessary protection to those adversely affected by the
exclusion under the Act. Those values have been
aptly described by
Mahomed CJ in
Amod v Multilateral Vehicle Accident Fund
(Commisision for Gender Equality Intervening)
36
as the “new ethos of tolerance, pluralism and religious
freedom”.
37
Having
delineated the approach according to which the impugned provision
should operate and be understood, I now turn to the
determination
of the issues.
a)
Does the exclusion of spouses in polygynous Muslim marriages from
the intestate succession regime as established by the Act
violate
section 9(3) of the Constitution?
The
High Court found that the exclusion of spouses in polygynous Muslim
marriages does not pass constitutional muster. I agree.
The
rights to equality before the law and to equal protection of the
law are foundational. The Constitution, as the jurisprudence
of
this Court demonstrates, prohibits the breach of equality not by
mere fact of difference but rather by that of discrimination.
38
This nuance is of importance so that the concept of equality is
not trivialised or reduced to a simple matter of difference.
The
marriage between the applicant and the deceased, being polygynous,
does not enjoy the status of a marriage under the Marriage
Act.
The Act differentiates between widows married in terms of the
Marriage Act and those married in terms of Muslim rites;
between
widows in monogamous Muslim marriages and those in polygynous
Muslim marriages; and between widows in polygynous customary
marriages and those in polygynous Muslim marriages. The Act works
to the detriment of Muslim women and not Muslim men.
I
am satisfied that the Act differentiates between the groups
outlined above.
Having
found that the Act differentiates between widows in polygynous
Muslim marriages like the applicant, on the one hand and
widows who
were married in terms of the Marriage Act, widows in monogamous
Muslim marriages and widows in polygynous customary
marriages on
the other, the question arises whether the differentiation amounts
to discrimination on any of the listed grounds
in section 9 of the
Constitution. The answer is yes. As I have indicated above our
jurisprudence on equality has made it
clear that the nature of the
discrimination must be analysed contextually and in the light of
our history. It is clear
that in the past, Muslim marriages,
whether polygynous or not, were deprived of legal recognition for
reasons which do not
withstand constitutional scrutiny today. It
bears emphasis that our Constitution not only tolerates but
celebrates the diversity
of our nation.
39
The celebration of that diversity constitutes a rejection of
reasoning such as that to be found in
Seedat’s
Executors v The Master (Natal
)
,
40
where the court declined to recognise a widow of a Muslim marriage
as a surviving spouse because a Muslim marriage, for
the very
reason that it was potentially polygynous, was said to be
“reprobated by the majority of civilised peoples,
on grounds
of morality and religion”.
41
The
effect of the failure to afford the benefits of the Act to widows
of polygynous Muslim marriages will generally cause widows
significant and material disadvantage of the sort which it is the
express purpose of our equality provision to avoid.
42
Moreover, because the denial of benefits affects only
widows in polygynous marriages concluded pursuant to Muslim rites
and
not widowers (because Muslim personal law does not permit women
to have more than one husband), the discrimination also has a
gendered aspect.
The grounds of discrimination can
thus be understood to be overlapping on the grounds of, religion,
in the sense that the particular
religion concerned was in the past
not one deemed to be worthy of respect; marital status, because
polygynous Muslim marriages
are not afforded the protection other
marriages receive; and gender, in the sense that it is only the
wives in polygynous Muslim
marriage that are affect by the Act’s
exclusion.
This
conclusion does not mean that the rules of Muslim personal law, if
enacted into law in terms of section 15(3) of the Constitution,
would necessarily constitute discrimination on the grounds of
religion, for the Constitution itself accepts diversity and
recognises that to foster diversity, express provisions for
difference may at times be necessary. Nor does this
conclusion foreshadow any answer on the question as to whether
polygynous marriages are themselves consistent with the
Constitution.
Whatever the answer to that question may be, one we
leave strictly open now, it could not result in refusing
appropriate protection
to those women who are parties to such
marriages. Such a result would be to lose sight of a key
message of our Constitution:
each person is of equal worth and must
be treated accordingly.
I
hasten to mention that the position of widows in monogamous Muslim
marriages has, however, since
Daniels
, been somewhat
ameliorated by their recognition as spouses under the Act.
However, women in polygynous Muslim marriages still
suffer serious
effects of non-recognition. The distinction between spouses in
polygynous Muslim marriages and those in monogamous
Muslim
marriages unfairly discriminates between the two groups.
By
discriminating against women in polygynous Muslim marriages on the
grounds of religion, gender and marital status, the Act
clearly
reinforces a pattern of stereotyping and patriarchal practices that
relegates women in these marriages to being unworthy
of protection.
Needless to say, by so discriminating against those women, the
provisions in the Act conflict with the principle
of gender
equality which the Constitution strives to achieve. That cannot,
and ought not, be countenanced in a society based
on democratic
values, social justice and fundamental human rights.
The
purpose of the Act would clearly be frustrated rather than
furthered if widows to polygynous Muslim marriages were excluded
from the benefits of the Act simply because their marriages were
contracted by virtue of Muslim rites. The constitutional goal
of
achieving substantive equality will not be fulfilled by that
exclusion. These women, as was the case with the applicant,
often
do not have any power over the decisions by their husbands whether
to marry a second or a third wife.
43
It
follows therefore that the exclusion of widows in polygynous Muslim
marriages from the protection of the Act is constitutionally
unacceptable because it excludes them simply on the prohibited
grounds. In any event, it would be unjust to grant a widow
in a
monogamous Muslim marriage the protection offered by the Act and to
deny the same protection to a widow or widows of a
polygynous
Muslim marriage. Discrimination on each of the listed grounds in
section 9(3) is presumed to be unfair unless justified.
44
The
question now arises as to whether this unfair discrimination can be
justified under section 36 of the Constitution.
In
deciding this question regard must be had to the nature of the
rights infringed, the nature of the discriminatory conduct,
the
provisions themselves, as well as the impact of the discrimination
on those who are adversely affected. In this case,
the group
discriminated against are women who are a particularly vulnerable
group in Muslim communities. These women are severely
prejudiced
by their exclusion from the protection under the Act. Cachalia
45
generally describes the consequences of non-recognition for those
spouses:
“
The consequences of
non-recognition are serious, particularly for the wife. Although a
couple may regard themselves as married
according to the tenets of
their religion, the law treats them as strangers. There is
therefore no legal nexus between them:
there is no joint estate and
any nuptial agreement is void; there are no financial obligations
between the spouses
inter se
and no claim for loss of support
accrues to the dependent spouse on the death of her ‘husband’;
she has no claim
for maintenance on divorce or against her husband’s
deceased estate; she is effectively disinherited if her husband dies
intestate”.
46
The
exclusion of the applicant, and others similarly positioned, from
the protection of the Act limits their rights under section
9 of
the Constitution. The limitation of their equality rights in the
circumstances is unjustifiable. It should be noted
that the
Minister advanced no justification for the limitation of the right
to equality in this instance.
Having
found that the exclusion of widows in polygynous Muslim marriages
constitutes unfair discrimination, the next question
is whether the
word “spouse” in the Act is capable of being
interpreted as including spouses in such marriages.
Logically
speaking, if, as the High Court found, the word “spouse”
is capable of being so interpreted, that would
be the end of the
matter. Because of the view I take of the matter, however, it is
necessary to consider the issue before
dealing with the remedy.
b)
Can the word “spouse” in the Act be read to include
spouses in polygynous Muslim marriages?
It
is convenient to set out the provisions of section 1(1)(a) –
(f) in full. It provides:
“
(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—
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
such descendant shall inherit
the residue (if any) of the intestate estate;
(d) is not survived by
a
spouse
or descendant, but is survived—(i) by both his
parents, his parents shall inherit the
intestate estate in equal
shares; or
(ii) by one of his parents, the
surviving parent shall inherit one half of the intestate estate and
the descendants of the deceased
parent the other half, and if there
are no such descendants who have survived the deceased, the
surviving parent shall inherit
the intestate estate; or
(e) is not survived by
a
spouse
or a descendant or parent, but is survived—
(i) by—
descendants of his deceased
mother who are related to the deceased through her only, as well
as by descendants of his deceased
father who are related to the
deceased through him only; or
descendants of his deceased
parents who are related to the deceased through both such
parents; or
any of the descendants
mentioned in subparagraph (
aa
)
,
as well as by any
of the descendants mentioned in subparagraph (
bb
),
the intestate estate shall be
divided into two equal shares and the descendants related to the
deceased through the deceased mother
shall inherit one half of the
estate and the descendants related to the deceased through the
deceased father shall inherit the
other half of the estate; or
(ii) only by descendants of one
of the deceased parents of the deceased who are related to the
deceased through such parent alone,
such descendants shall inherit
the intestate estate;
is not survived by
a
spouse
, descendant, parent, or a
descendant of a parent, the
other blood relation or blood relations of the deceased who are
related to him nearest in degree shall
inherit the intestate estate
in equal shares.”
(Emphasis added.)
In
considering the question above, we cannot turn the clock back to
1987 when the Act was enacted or even to 1917 and 1983 when
Seedat’s
and
Ismail
were decided, respectively.
At the time of the enactment of the above provisions, the only
marriages to which the legislature
sought to afford protection were
civil marriages recognised under the Marriage Act. We must now
consider the meaning of the
word “spouse” in the Act in
light of its current place and effect in South Africa and
particularly its effect on
Muslim communities. Although the word
“spouse” is not defined in the Act, it ought to be read
through the prism
of the Constitution.
Marriage,
as a social institution, is important to all members of South
African society, irrespective of skin colour or religious
background. Marriages concluded under Muslim rites are potentially
polygynous as a man is permitted, subject to the Qur’anic
prescripts, to marry more than one woman.
47
The significance attached to polygynous unions solemnised in
accordance with the Muslim religious faith is by no means less
than
the significance attached to a civil marriage under the Marriage
Act or an African customary marriage. Similarly, the
dignity of
the parties to polygynous Muslim marriages is no less worthy of
respect than the dignity of parties to civil marriages
or African
customary marriages.
The
shift in legislative policy, as clearly pointed out by the majority
in
Daniels
,
48
and
judicial policy as is evident in
Bhe
49
and
Khan
,
50
are also indicative of trends consistent with the constitutional
values. The majority in
Daniels
remarked that the existence
of such provisions in other statutes does not imply that their
absence in the Act and the Maintenance
Act has special
significance. The fact that the new democratic Parliament has not
as yet included Muslim marriages expressly
within the purview of
the protection granted by those Acts, the Court held, cannot be
interpreted so as to exclude them, contrary
to the spirit, purport
and objects of the Constitution.
On
the approach delineated above, the majority in
Daniels
, per
Sachs J, held that the ordinary meaning of the word “spouse”
in the Act also encompasses surviving spouses
of marriages
contracted according to Muslim rites.
51
The Court opted for a broad and inclusive construction of the
concept which extended the application of the Act to include
the
surviving spouse of a monogamous Muslim marriage entered into in
accordance with Muslim rites. The Court held that the
constitutional values of equality, tolerance and respect for
diversity point strongly in favour of giving the word “spouse”
a broad and inclusive construction. It remarked that any other
interpretation would result in a violation of the widow’s
rights to equality in relation to marital status, religion and
culture and would therefore violate their right to dignity.
In my
view, the circumstances of that case, allowed for such an
interpretation for it was only due to the religion of the
parties
that their marriage was without recognition, thus there was no
undue strain on the language. On the facts of the present
case, to
read the word “spouse” so as to include multiple
spouses would be a significant departure from the ordinary,
commonly understood meaning of the word, as it is used in the Act.
Therefore, the word “spouse” as it is used
in the Act
is not capable of being understood to include more than one partner
to a marriage. In consequence, we must read
in words to cure the
defects.
c)
Appropriate remedy
Having
concluded that section 1 of the Act constitutes an unjustifiable
infringement of section 9(3) of the Constitution, I
must now
consider an appropriate remedy. The constitutional defect in the
impugned provision is manifest. It exists because
the word
“spouse” in the Act excludes widows to polygynous
Muslim marriages, thus denying them the protection intended
for
vulnerable women in our society. The dictates of justice and
equity require this Court to grant an effective remedy which
shall
vindicate their rights.
Section
172(1) of the Constitution requires a court, when deciding a
constitutional matter within its power, to declare that
any law
that is inconsistent with the Constitution is invalid to the extent
of its inconsistency. It further provides that
a court may make
any order that is just and equitable, including an order limiting
the retrospective effect of the declaration
of invalidity for any
period and on any conditions to allow the competent authority to
correct the defect.
In
S v Bhulwana; S v Gwadiso
52
this Court stressed that litigants should be granted effective
relief and that it is undesirable to restrict the relief to
the
litigants before a court. It said:
“
Central to a
consideration of the interests of justice in a particular case is
that successful litigants should obtain the relief
they seek. . . .
In principle too, the litigants before the Court should not be
singled out for the grant of relief, but relief
should be afforded
to all people who are in the same situation as the litigants”.
53
(Citations omitted.)
People
in the position of the applicant cannot be made to wait to be
afforded the protection they are entitled to. The failure
to
regulate their affairs upon intestacy, as we have seen in this
case, does and will continue to have a profoundly detrimental
effect on them. This cannot be allowed.
As
the text stands now, the word “spouse” is not
reasonably capable of being understood to include more than one
spouse in the context of a polygynous marriage. The omission of
the words “spouses” is therefore inconsistent
with the
Constitution and those words thus need to be added to the Act so as
to cure the defect. Accordingly, I would add
the words “or
spouses” after each use of the word “spouse” in
the Act.
Whilst
the declaration of invalidity must be confirmed, albeit in a
slightly different manner, the order of the High Court does
not
entirely remedy the defects in the Act so as to ensure that just
and equitable relief is finally granted to those affected
and those
who might potentially be affected. The extent of the defect
appears in the draft order proposed by the parties.
54
The draft requires reading words into the Act to give immediate
relief, which has a degree of retrospective effect.
The
question is whether it is just and equitable to make an order of
invalidity that should date back to 1994 when the interim
Constitution became operative. As the Court stated in
Bhe
,
55
the declaration of constitutional invalidity must be retrospective
to 27 April 1994 in order to avoid patent injustice. The
appropriate remedy is to grant an order, the retrospective effect
of which should be limited to estates that have not yet been
finally wound up.
Costs
The
High Court ordered that the costs of the application should be paid
out of the estate of the deceased. In this Court, the
applicant
seeks costs of the application. The issue in this matter must be
seen against the background of the decisions of
this Court and its
judicial policy in
Bhe
and
Daniel
s. Although the
Minister stressed that his Ministry had started a process that will
lead to law reform in the area that has
resulted in this
litigation, he did not come to Court to oppose the confirmation of
the declaration of invalidity of the impugned
provisions. The
Minister should, in my view, pay the applicant’s costs,
including those costs occasioned by the employment
of two counsel
as well as the applicant’s costs in the High Court. This is
so because the applicant launched these proceedings
to vindicate
her constitutional rights. Moreover, she has been wholly
successful.
Order
In
the result, I make the following order:
The application for confirmation is granted.
The order made by the Western Cape High Court
,
Cape Town, on 18 July 2008 is confirmed to the extent set out
below.
Paragraphs 23.1.4, 23.2
and 23.3 of the order of the Western Cape High Court, Cape Town,
are set aside and substituted as follows:
It
is declared that
section 1
of the
Intestate Succession Act 81
of 1987
is inconsistent with the Constitution and invalid to the
extent that it does not include more than one spouse in a
polygynous
Muslim marriage in the protection it affords to “a
spouse”.
Section
1
of the
Intestate Succession Act 81 of 1987
must be read as though
the words “or spouses” appear after the word “spouse”
wherever it appears in
section 1
of the
Intestate Succession Act.
In
the application of
sections 1(1)(c)(i)
and
1
(4)(f) of the
Intestate Succession Act 81 of 1987
to the estate of a deceased
person who is survived by more than one spouse:
a
child’s share in relation to the intestate estate of the
deceased shall be calculated by dividing the monetary value
of the
estate by a number equal to the number of the children of the
deceased who have either survived or predeceased such
deceased
person but are survived by their descendants, plus the number of
spouses who have survived such deceased;
subject
to paragraph (c), each surviving spouse shall inherit a child’s
share of the intestate estate or so much of the
intestate estate as
does not exceed in value the amount fixed from time to time by the
Minister for Justice and Constitutional
Development by notice in
the Gazette, whichever is the greater; and
where
the assets in the estate are not sufficient to provide each spouse
with the amount fixed by the Minister, the estate shall
be equally
divided amongst the surviving spouses.
The
declaration of invalidity operates retrospectively with effect from
27 April 1994 except that it does not invalidate any
transfer of
ownership prior to the date of this order of any property pursuant
to the distribution of the residue of an estate,
unless it is
established that, when transfer was effected, the transferee was on
notice that the property in question was subject
to a legal
challenge on the grounds upon which the applicant brought the
present application.
4. If
serious administrative or practical problems arise in implementation
of this order, any interested person may approach this
Court for a
variation of this order.
5. The fifth respondent is ordered to pay the applicant’s
costs of this application and of the application in the Western
Cape
High Court, Cape Town, including costs occasioned by the employment
of two counsel.
Langa CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, O’Regan
J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob
J concur in
the judgment of Nkabinde J.
For the Applicant:
For the Fifth Respondent:
For the First Amicus Curiae:
For the Second Amicus Curiae:
Advocate W Trengove SC and Advocate K Pillay instructed by de Klerk
and van Gend.
Advocate SL Shangisa and Advocate P Matshelo instructed by the State
Attorney.
Advocate K Pillay instructed by the Legal Resources Centre.
Advocate G Budlender SC and Advocate S Cowen instructed by the
Women’s Legal Centre Trust.
1
81 of 1987.
2
Reported as
Hassam v Jacobs NO and Others
[2008] 4 All SA 350
(C).
3
Section 172(2)(a)
provides:
“
The
Supreme Court of Appeal, a High Court or a court of similar status
may make an order concerning the constitutional validity
of an Act
of Parliament, a provincial Act or any conduct of the President, but
an order of constitutional invalidity has no force
unless it is
confirmed by the Constitutional Court.”
4
“Polygyny” means having more than one wife whereas
“polygamy” means having more than one wife or husband
see
Concise Oxford English Dictionary
7ed (Oxford University
Press 2005). According to the tenets of Muslim personal law,
only men may have more than one spouse,
so it is more accurate to
speak of polygyny than polygamy. See the helpful discussion of
these terms in Bennett
Customary Law in South Africa
(Juta,
Cape Town 2004) at 243.
5
Above n 2 at paras 2-4.
6
The MYM is a registered non-profit organisation involved in welfare
and education programmes centred on the mobilisation of the
Muslim
youth and the greater Muslim community. In particular it has as one
of its objectives the protection of women’s
rights within the
Muslim community.
7
The Trust is a
non-governmental organisation
which has as its core objective the advancement and protection of
human rights of all women in South
Africa through litigation. It
was admitted as amicus curiae in the proceedings before the High
Court.
8
27 of 1990.
9
[1984] ZASCA 51
;
1984 (3) SA 623
(A). See also
Van
der Merwe and Another v Taylor and Others
[2007] ZACC 16
;
2007 (11) BCLR 1167
(CC);
2008 (1) SA 1
(CC)
at
fn 39 where the rule was formulated as follows:
“
According
to this rule a court in motion proceedings, in determining whether a
case is made out, must examine the undisputed averments
of the
applicant together with the averments of the respondent.”
10
Above n 2 at para 8.
11
In a notice in terms of Rule 16A of the Uniform Rules of Court in
which she had
also challenged the constitutional
validity of certain provisions of the Maintenance Act. She
contended that the term “survivor”
in this Act should be
read to include a surviving spouse or spouses of a polygynous Muslim
union. The High Court did not declare
the impugned provisions of
the Maintenance Act unconstitutional and little therefore need be
said further about it.
12
[2004] ZACC 14
;
2004 (7) BCLR 735
(CC);
2004 (5) SA 331
(CC). In
this case the right to benefit intestate was extended to women in
de
facto
monogamous Muslim marriages.
13
Above n 2 at para 16.
The High Court also
found that “no governmental purpose that could be advanced by
such a differentiation has been raised
or appears to be
self-evident.”
14
Id
at para 20.
15
25 of 1961.
16
In terms of the
Recognition of Customary Marriages Act 120 of 1998
.
See also
Bhe and Others v Magistrate, Khayelitsha and Others
(Commission for Gender Equality as Amicus Curiae); Shibi v Sithole
and Others;
South African Human Rights Commission and Another v
President of RSA and Another
[2004] ZACC 17
;
2005 (1) BCLR 1
(CC);
2005 (1) SA 580
(CC).
17
[2002] ZACC 22
;
2002 (11) BCLR 1117
(CC);
2002
(6) SA 642
(CC). In that case the Court dealt with the criminal
sanction which imposed differential liability on prostitutes as
compared
to their clients. The majority per Ngcobo J held that the
impugned provision was not unconstitutional. The minority, per
O’Regan
and Sachs JJ, linked this differentiation to a pattern
of gender disadvantage and thereby found it to constitute unfair
discrimination.
18
Section 15(1)
reads:
“Everyone has the
right to freedom of conscience, religion, thought, belief and
opinion.”
19
Section 31(1)
reads:
“
Persons belonging to a cultural, religious or
linguistic community may not be denied the right, with other members
of the community
–
(a) to enjoy their culture, practise their religion and
use their language; and
(b) to form, join and maintain cultural, religious and
linguistic associations and other organs of civil society.”
20
Above n 16 at para 136. The Court made the following order in
relation to the
Intestate Succession Act:
“
5. Section
1(4)(b) of the
Intestate Succession Act 81 of 1987
is declared to be inconsistent
with the Constitution and invalid.
6. Subject to paragraph 7 of this
order,
section 1
of the
Intestate Succession Act 81 of 1987
applies
to the intestate deceased estates that would formerly have been
governed by section 23 of the Black Administration Act
38 of 1927.
7.
In the
application of
sections 1(1)(c)(i)
and
1
(4)(f) of the
Intestate
Succession Act 81 of 1987
to the estate of a deceased person who is
survived by more than one spouse:
(a)
A
child’s share in relation to the intestate estate of the
deceased, shall be calculated by dividing the monetary value
of the
estate by a number equal to the number of the children of the
deceased who have either survived or predeceased such deceased
person but are survived by their descendants, plus the number of
spouses who have survived such deceased;
(b) E
ach
surviving spouse shall inherit a child’s share of the
intestate estate or so much of the intestate estate as does not
exceed in value the amount fixed from time to time by the Minister
for Justice and Constitutional Development by notice in the
Gazette,
whichever is the greater; and
(c) N
otwithstanding
the provisions of sub-paragraph (b) above, where the assets in the
estate are not sufficient to provide each spouse
with the amount
fixed by the Minister, the estate shall be equally divided between
the surviving spouses.
. .
. .
10.
Any
interested person may approach this Court for a variation of this
order in the event of serious administrative or practical
problems
being experienced.”
21
See in this regard
Van
der Merwe v Road Accident Fund and Others
[2006]
ZACC 4
;
2006 (6) BCLR 682
(CC);
2006 (4) SA 230
(CC);
Hoffmann v South African Airways
[2000]
ZACC 17
;
2000 (11) BCLR 1211
(CC);
2001 (1) SA 1
(CC);
National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others
[1998]
ZACC 15
;
1998 (12) BCLR 1517
(CC);
1999 (1) SA 6
(CC);
Harksen v Lane NO and Others
[1997] ZACC 12
;
1997 (11) BCLR 1489
(CC);
1998 (1) SA 300
(CC);
Prinsloo v Van der Linde and Another
[1997]
ZACC 5
;
1997 (6) BCLR 759
(CC);
1997 (3) SA 1012
(CC);
President
of the Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997 (6) BCLR 708
(CC);
1997 (4) SA 1
(CC); and
Brink
v Kitshoff NO
[1996]
ZACC 9
;
1996 (6) BCLR 752
(CC);
1996 (4) SA 197
(CC).
See
also
Minister
of Finance and Another v Van Heerden
[2004]
ZACC 3
;
2004 (11) BCLR 1125
(CC);
2004 (6) SA 121
(CC) at para 27,
Moseneke J, as he then was,
eloquently described the duty on every court when embarking on an
analysis in terms of
section 9.
He stated that it is—
“
incumbent on courts to
scrutinise in each equality claim the situation of the complainants
in society; their history and vulnerability;
the history, nature and
purpose of the discriminatory practice and whether it ameliorates or
adds to group disadvantage in real
life context, in order to
determine its fairness or otherwise in the light of the values of
our Constitution.” (Footnote
omitted.)
22
Harksen
above n 21.
23
Id at para 53. Although the Court in
Harksen
was concerned with section 8 of the interim Constitution, that
section is the equivalent of section 9 of the Constitution albeit
with some difference in wording. In
National
Coalition for Gay and Lesbian Equality
,
this Court stated
that the postulated enquiry does not mean
that—
“
in
all cases the rational connection inquiry of stage (a) must
inevitably precede stage (b). The stage (a) rational connection
inquiry would be clearly unnecessary in a case in which a court
holds that the discrimination is unfair and unjustifiable.”
(Above n 21 at para 18.)
This
approach was also adopted in
Hoffmann
where
this Court, per Ngcobo J, proceeded directly to a section 9(3)
analysis because it was clear that the law in question
was
discriminatory. (Above n 21 at para
20.)
24
Section 39(1) and (2) provide:
“
(1) When
interpreting the Bill of Rights, a court, tribunal or forum –
(a) must promote the values that underlie an open and
democratic society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) 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.”
25
See also in this regard the majority decision in
Daniels
above
n 12 at para 43.
26
Brink
above n 21 at para 40.
27
Above n 12 at para 20.
28
See for example,
Van der Merwe
above n 21 at para 66 where
this Court held, among other things, that “when the
constitutional validity of a law is challenged
by invoking one or
more guarantees in the Bill of Rights contextual analysis is often
all important.” (Footnote omitted.)
29
Above n 12 at para 48.
30
1983 (1) SA 1006
(AD).
31
Id at 1024H-1025A.
32
Id at 1024D-H contrasted with
Bhe
above n 16 at para 116 and
Khan v Khan
2005 (2) SA 272
(TPD) at para 11.
33
4 of 2000.
34
The importance of diversity was acknowledged by this Court in
Minister of Home Affairs and Another v Fourie and Another;
Lesbian and Gay Equality Project and Others v Minister of Home
Affairs
and Others
[2005] ZACC 19
;
2006 (3) BCLR 355
(CC);
2006
(1) SA 524
(CC) at para 60.
35
See Klare “Legal Culture and Transformative Constitutionalism”
(1998) 14
SAJHR
146.
Our Constitution has been characterised
among other things, as a transformative document. The concept of
“transformative
constitutionalism” has over the past
decade found considerable resonance in our jurisprudence. See in
this regard
Minister of Health and Another v New Clicks South
Africa (Pty) Ltd and Others (Treatment Action Campaign and Another
as Amici
Curiae)
[2005] ZACC 14
;
2006 (8) BCLR 872
(CC);
2006
(2) SA 311
(CC) at para 232;
S v Mhlungu and Others
[1995]
ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC) at para 8;
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at paras 9 and 301-2. See in particular
Minister of Finance
above n 21 at para 142, where Sachs J
discussed transformative constitutionalism in the context of
equality.
36
1999 (4) SA 1319
(SCA).
37
Id at para 20.
38
See
Prinsloo
above
n 21 at paras 25-33.
39
See
MEC for Education:
Kwazulu-Natal and Others v Pillay
[2007]
ZACC 21
;
2008 (2) BCLR 99
(CC);
2008 (1) SA 474
(CC) at para 65.
40
1917 AD 302.
41
Id at 307
.
See also
Ismail
above n 30 at 1026
.
See also the similar reasoning to be found in
Daniels
above n 12 per Ngcobo J at paras 52-3; and per Moseneke J, as he was
then, in the same judgment at para 108.
42
See
Brink
above n 21 at para 42.
43
It is not insignificant that South Africa ratified on 17 December
2004 the Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa which came into operation on
25 November 2005. Article 6 provides for the promotion
and
protection of the rights of women in polygynous marriages.
Available at
http://
www.african-union.org
;
http://www.dfa.gov.za/foreign/index.html
,
accessed on 25 May 2009. This serves to highlight the vulnerability
of women in polygynous marriages and their plight will
only be
ameliorated if they fall within the ambit of the law, which in many
instances excludes women in polygynous marriages.
44
Section 9(5) of the Constitution.
45
Firoz Cachalia “Citizenship, Muslim family law and a future
South African constitution: a preliminary enquiry”
(1993) 56
THRHR
392.
46
Id at 399.
47
See in this regard ‘Abdur Rahman I. Doi,
Sharia: The Islamic Law
(Ta
Ha Publications, London 1984) at 146, where the author quotes the
following Qur’anic verse:
“
If
you fear you shall not be able to deal justly with the orphans,
marry the women of your choice, two, or
three or four
. But if you fear that
you shall not be able to deal justly with them, then only one.”
(Emphasis added.)
48
Above
n 12 at fn 40. Examples of this shift
include:
“
Civil
Proceedings Evidence Act 25 of 1965 (s 10A recognises religious
marriages for the purposes of the law of evidence); 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); Pension Funds Act 24 of 1956 (s 1(b)(ii):
definition of ‘dependent’); Special Pensions
Act 69 of
1996 (s 31(b)(ii): definition of ‘dependent’);
Government Employees Pension Law Proclamation 21 of 1996
(s
1(b)(ii): definition of ‘dependent’ and Schedule 1 item
1.19, definition of ‘spouse’); Demobilisation
Act 99 of
1996 (s 1 (vi)(c): definition of ‘dependent’); Value
Added Tax Act 89 of 1991 (Notes 6 and 7 to item 406.00
of Schedule 1
recognises religious marriages for the purposes of tax exemptions in
respect of goods imported into South Africa);
Transfer Duty Act 40
of 1949 (s 9(1)(f) read with the definition of ‘spouse’
in s 1 exempts from transfer duty, property
inherited by the
surviving spouse in a religious marriage); 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).”
See also
section
2(3)
of the
Recognition of Customary Marriages Act 120 of 1998
. It
provides that, “[i]f a person is a spouse in more than one
customary marriage, all valid customary marriages entered
into
before the commencement of this Act are for all purposes recognised
as marriages.”
49
Above n 16 at paras 116 and 136.
50
Khan
above n 32 at 283C-D where the court stated that,
“partners in a Muslim marriage, married in accordance with
Islamic rites
(whether monogamous or not) are entitled to
maintenance”.
51
Above n 12 at para 40.
52
[1995] ZACC 11
;
1995 (12) BCLR 1579
(CC);
1996
(1) SA 388
(CC).
53
Id at para 32.
54
The draft order reads:
“
1. Paragraphs
23.1.4, 23.2 and 23.3 of the High Court’s order are set aside.
2. It is declared that
s 1
of the
Intestate Succession
Act 81 of 1987
is inconsistent with the Constitution and invalid to
the extent that it does not include the surviving partner in a
polygynous
Muslim marriage in the protection it affords to a
‘
spouse’
.
3. This
defect is remedied as follows:
3.1 The word ‘
spouse’
in
s 1
of the
Intestate Succession Act must
be read to include the surviving
partner in a polygynous Muslim marriage.
3.2 In the application of
ss 1(1)(c)(i)
and
1
(4)(f) of
the
Intestate Succession Act to
the estate of a deceased person who
is survived by more than one spouse,
(a) a child’s share in relation to the intestate
estate of the deceased, shall be calculated by dividing the monetary
value
of the estate by a number equal to the number of the children
of the deceased who have either survived or predeceased such
deceased
person but are survived by their descendants, plus the
number of spouses who have survived such deceased;
(b) subject to paragraph (c), each surviving spouse
shall inherit a child’s share of the intestate estate or so
much of
the intestate estate as does not exceed in value the amount
fixed from time to time by the Minister for Justice and
Constitutional
Development by notice in the Gazette, whichever is
the greater; and
(c) where the assets in the estate are not sufficient
to provide each spouse with the amount fixed by the Minister, the
estate
shall be equally divided between the surviving spouses.
3.3 This order operates retrospectively with effect
from 27 April 1994 except that it does not invalidate any transfer
of ownership
prior to the date of this order, of any property
pursuant to the distribution of the residue of an estate, unless it
is established
that, when transfer was effected, the transferee was
on notice that the property in question was subject to a legal
challenge
on the grounds upon which the applicant brought the
present application.
4. If serious administrative or practical problems are
experienced, any interested person may approach this court for a
variation
of this order.”
55
Above n 16 at para 128.