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[2018] ZACC 19
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Moosa NO and Others v Minister of Justice and Correctional Services and Others (CCT251/17) [2018] ZACC 19; 2018 (5) SA 13 (CC); 2018 (10) BCLR 1280 (CC) (29 June 2018)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
251/17
In the matter
between:
FAREED MOOSA
N.O.
First
Applicant
AMINA
HARNEKER
Second
Applicant
FARIEDA
HARNEKER
Third
Applicant
and
MINISTER OF
JUSTICE AND
CORRECTIONAL
SERVICES
First

Respondent
MASTER OF THE
HIGH COURT
OF SOUTH AFRICA,
WESTERN
CAPE
Second

Respondent
REGISTRAR OF
DEEDS, CAPE
TOWN
Third
Respondent
TRUSTEES OF THE
WOMEN’S
LEGAL CENTRE
TRUST
Amicus
curiae
Neutral citation:
Moosa and Others v Minister of Justice and Correctional Services
and Others
[2018] ZACC 19
Coram:
Mogoeng CJ, Zondo DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath
AJ, Jafta J, Khampepe J, Madlanga J, Petse AJ and Theron J
Judgment:
Cachalia AJ (unanimous)
Decided on:
29 June 2018
Summary:
Wills
Act 7 of 1953
— constitutionality of
section 2C(1)
—
definition of “surviving spouse” — spouses in
polygamous Muslim marriages excluded — unconstitutional
ORDER
On application for
confirmation of the order of the High Court of South Africa, Western
Cape Division, Cape Town:
1. The declaration of constitutional invalidity of
section 2C(1)
of
the
Wills Act 7 of 1953
by the High Court of South Africa,
Western Cape Division, Cape Town, is confirmed.
2.
Section 2C(1)
of the
Wills Act 7 of 1953
is to be read as
including the following underlined words:
“If
any descendants of a testator, excluding a minor or a mentally ill
descendant, who, together with the surviving spouse
of the testator,
is entitled to a benefit in terms of a will renounces his right to
receive such benefit, such benefit shall vest
in the surviving
spouse.
For the purposes of this sub-section, a ‘surviving
spouse’ includes every husband and wife of a monogamous and
polygamous
Muslim marriage solemnised under the religion of Islam.
”
3. The declaration of invalidity operates retrospectively with effect
from 27 April 1994 except that it does not invalidate any
transfer of
ownership that was finalised prior to the date of this order of any
property pursuant to the application of
section 2C(1)
of the
Wills
Act 7 of 1953
unless it is established that, when the 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. The Women’s Legal Centre Trust is admitted as amicus curiae.
5. There is no order as to costs.
JUDGMENT
CACHALIA AJ (Mogoeng
CJ, Zondo DCJ,  Dlodlo AJ, Froneman J, Goliath AJ, Jafta J,
Khampepe J, Madlanga J, Petse AJ and Theron
J concurring):
Introduction
[1]
On 14 September 2017, the High Court of South Africa, Western
Cape Division, Cape Town (High Court) delivered a judgment (per Le

Grange J) in which it declared
section 2C(1)
of the
Wills Act
[1
]
constitutionally invalid for its omission to recognise the right of a
“surviving spouse”, married by Muslim rites in
a
polygamous relationship, to the benefits of her deceased husband’s
will.
[2]
Section 2C
reads as follows:
“
Surviving spouse and descendants of certain persons
entitled to benefits in terms of will
(1) If any descendants of a testator, excluding a minor or a mentally
ill descendant, who, together with the surviving spouse of
the
testator, is entitled to a benefit in terms of a will renounces his
right to receive such benefit, such benefit shall vest
in the
surviving spouse.
(2) If a descendant of the testator, whether as a member of a class
or otherwise, would have been entitled to a benefit in terms
of the
provisions of a will if he had been alive at the time of death of the
testator, or had not been disqualified from inheriting,
or had not
after the testator’s death renounced his right to receive such
a benefit, the descendants of that descendant shall,
subject to the
provisions of subsection (1), per stirpes be entitled to the benefit,
unless the context of the will otherwise indicates.”
Parties
[2]
The first applicant is Dr Fareed Moosa, an attorney and the
executor of the estate of Mr Osman Harneker (the deceased).  He

and the surviving spouses of the deceased, Ms Amina Harneker (second
applicant) and Ms Farieda Harneker (third applicant), ask
this Court,
in terms of
rule 16(4)
of its Rules, to confirm the order of the High
Court, which was granted without opposition.  The first and
second respondents
– the Master of the High Court, Western Cape
and the Registrar of Deeds, Cape Town – do not oppose the
confirmation
application before this Court.  In the
circumstances, and after consultation with the parties, this Court
considered it unnecessary
to hold an oral hearing.
[3]
[3]
The applicants made full written argument supporting the
confirmation application.  Written submissions were also filed
by
the first and second respondents to support the confirmation.  The
Women’s Legal Centre Trust (WLC), the amicus curiae
in the High
Court proceedings, also applied to this Court for admission as amicus
curiae.  Its submissions provided valuable
context regarding the
experiences of Muslim women in South Africa and drew attention to
South Africa’s international law
obligations.  These
submissions were useful and different to those of the parties.  The
WLC should therefore be admitted
as amicus curiae.  I am
grateful for the assistance of all of the parties.
The Background
[4]
The facts giving rise to the litigation in this matter are
recited accurately in the judgment of the High Court.
[4]
They make compelling reading.  The deceased married the second
applicant in 1957 and the third applicant in 1964.
Both
marriages were solemnised in ceremonies conducted under the tenets of
Islamic law.  Nine children were born of these
unions.
[5]
In 1982, the deceased applied for a bank loan to fund the
purchase of the current family home.  But, because Muslim
marriages
were not legally recognised, he was advised to formalise
his marriage to the second applicant under South African law in order
for the bank loan to be approved.  He did so, with the consent
of the third applicant, and then bought the property with the
loan he
obtained.  The deed of transfer therefore reflected the names of
the deceased and the second applicant.
[6]
Since then the deceased lived with both his wives and some of
their children in their family home until his death in 2014.
He
prepared a will three years earlier in which he referred to both
marriages.  Its terms direct his estate to be distributed
under
Islamic law.  The Muslim Judicial Council certified that this
required the estate to be divided in 1/16 shares to each
of his
wives, 7/52 to each of his sons and 7/104 to his daughters.
[7]
The first applicant confirms, in his capacity as executor of
the deceased estate, that all the children renounced the benefits due

to them under the will.  He specified that their shares must be
distributed equally to the second and third applicants.
In this
regard
section 2C(1)
of the
Wills Act entitles
a “surviving
spouse” to the benefit of a will if the testator’s
descendants renounce their rights to it.
[5]
[8]
Thus, acting purportedly in terms of this provision, the
executor regarded both wives as surviving spouses entitled to benefit
equally
after their children renounced their benefits.  He
lodged a liquidation and distribution account with the
second respondent.
It recorded that both spouses would
receive an equal share of the benefits renounced, which amounted to
R273 347.30 for each.
The Master accepted the calculation.
[9]
The executor then sought to register the deceased’s half
share in the family property, which included the portion renounced
by
his descendants born of the marriage to the second applicant.
The third respondent approved the registration for the second

applicant.  But he declined to do so for the third applicant
because he believed that the benefits renounced by the deceased’s

descendants born of his marriage to the third applicant vest in the
children of those descendants, and not the third applicant,
as
section 2C(2)
envisages.  The rationale underpinning his view
was that the term “surviving spouse” in
section 2C(1)
should be interpreted strictly to cover spouses recognised formally
under this country’s laws.
[6]
The High Court
[10]
The applicants took issue with the interpretation that the
Registrar of Deeds placed on the words “surviving spouse”

in
section 2C(1)
of the
Wills Act.  They
contended that it
violated the third applicant’s rights to equality and dignity
in sections 9 and 10 of the Constitution,
respectively.
[7]
The High Court upheld their contention.  Relying on this Court’s
equality jurisprudence concerning, among others,
the proprietary
consequences of Muslim marriage in the context of intestate
succession and maintenance for surviving spouses,
[8]
the High Court reasoned – correctly in my view – as
follows:
(a) The phrase “surviving spouse” in the section dates
back to the pre constitutional era when it plainly contemplated

a partner in a common law monogamous union.  It therefore cannot
be interpreted to include multiple surviving spouses within
its
ambit.
(b) Section 2C(1) thus differentiates between surviving spouses
married in terms of the Marriage Act
[9]
upon whom benefits are conferred and those married under Islamic Law,
who are not recognised as spouses.
[10]
(c) The section also discriminates between surviving spouses in
monogamous civil marriages and those in Muslim polygamous marriages;

only the former fall within its ambit.
[11]
(d) To the extent that section 2C(1) applies to surviving spouses in
polygamous customary marriages in terms of the Recognition
of
Customary Marriages Act, the section also differentiates between
surviving spouses in customary unions and those in polygamous
Muslim
marriages.  African Customary Law marriages fall within the
section’s remit, but Muslim marriages do not.
[12]
(e) The differentiation referred to in the preceding paragraphs bears
no rational connection to a legitimate governmental purpose
and
therefore constitutes unfair discrimination in breach of section 9(3)
of the Constitution.
(f) In this case, section 2C(1) unfairly discriminates against the
third applicant by recognising the second applicant as a “surviving

spouse” by virtue of her civil union with the deceased, but
excludes the third applicant only because hers is an Islamic

marriage.  It also denies her the protection afforded to
polygamous customary marriages.  It is thus a clear case of

direct discrimination on the grounds of her religion and her marital
status.
Equality challenge
[11]
As mentioned at the outset, the first respondent does not
oppose the confirmation of the order and has not attempted to justify
the infringement of the third applicant’s right to
equality under section 36 of the Constitution.  And I can think

of no justification.  The High Court accordingly declared
section 2C(1)
of the
Wills Act to
be inconsistent with the
Constitution and invalid, but limited the declaration’s
retrospective effect so as not to affect
the validity of any estates
that have been finally wound up.  It also considered it
appropriate not to restrict the relief
only to the litigants before
the Court.
[13]
[12]
As regards the defect in section 2C(1), the High Court
concluded that it could only be cured by reading into the phrase
“surviving
spouse” a meaning that encompasses “every
surviving husband or wife who was married by Muslim rites to a
deceased testator
. . . irrespective whether such marriage was de
facto monogamous or [polygamous]”.
[14]
In summary, the High Court concluded that the meaning of the phrase
“surviving spouse” as applying only
to monogamous
unions violated the third applicant’s right to equality.
I endorse its reasoning in this regard
fully.  As submitted by
the WLC, this accords with South Africa’s obligation to
eliminate discrimination against women
as set out in the Convention
on the Elimination of All Forms of Discrimination against Women,
which enjoins state parties to—
“pursue by all appropriate means and without delay a policy of
eliminating discrimination against women and, to this end,
undertake
. . . [t]o take all appropriate measures, including legislation, to
modify or abolish existing laws, regulations, customs
and practices
which constitute discrimination against women.”
[15]
Dignity challenge
[13]
However, the High Court did not deal pertinently with the
third applicant’s dignity challenge, perhaps because it usually
and self-evidently underlies any equality complaint.  As this
Court has stated in
Robinson
:
“Dignity is an underlying consideration in the determination of
unfairness.  Thus in the
Harksen
case, this Court held
that ‘[t]he prohibition of unfair discrimination in the
[equality clause of the] Constitution provides
a bulwark against
invasions which impair human dignity or which affect people adversely
in a comparably serious manner’.”
[16]
[14]
So I shall deal with the right to dignity briefly.
[15]
At the heart of the third applicant’s dignity argument
is the recognition of the importance of marriage and family as social

institutions in our society.  In
Dawood,
this Court
recognised that:
“The decision to enter into a marriage relationship and to
sustain such a relationship is a matter of defining significance
for
many if not most people and to prohibit the establishment of such a
relationship impairs the ability of the individual to achieve

personal fulfilment in an aspect of life that is of central
significance.”
[17]
[16]
The non-recognition of her right to be treated as a “surviving
spouse” for the purposes of the
Wills Act, and
its concomitant
denial of her right to inherit from her deceased husband’s
will, strikes at the very heart of her marriage
of fifty years, her
position in her family and her standing in her community.  It
tells her that her marriage was, and is,
not worthy of legal
protection.  Its effect is to stigmatise her marriage, diminish
her self-worth and increase her feeling
of vulnerability as a Muslim
woman.  Furthermore, as the WLC correctly submitted, this
vulnerability is compounded because
there is currently no legislation
that recognises Muslim marriages or regulates their consequences.
In short, the non-recognition
of the third applicant’s
right to be treated as a “surviving spouse” infringes her
right to dignity in a
most fundamental way, and is a further ground
for declaring
section 2C(1)
constitutionally invalid.
Relief sought
[17]
The High Court made the following order:
“(a) In terms of section 172(1)(a) of the Constitution,
section
2C(1)
of the
Wills Act is
declared inconsistent with the
Constitution and invalid only:
(i) to the extent that, for the purposes of the operation of section
2C(1), the term ‘surviving spouse’ therein does
not
include a husband or wife in a marriage that was solemnised under the
tenets of Islam (Shari’ah); and
(ii) to the extent that, for the purposes of the operation of section
2C(1), the term ‘surviving spouse’ therein does
not
include multiple female spouses who were married to a deceased
testator under [polygamous] Muslim marriages.
(b) In terms of section 172(1)(b) of the Constitution, it is just and
equitable to read
section 2C(1)
of the
Wills Act as
including the
underlined words:
‘If
any descendants of a testator, excluding a minor or a mentally ill
descendant, who, together with the surviving spouse
of the testator,
is entitled to a benefit in terms of a will renounces his right to
receive such benefit, such benefit shall vest
in the surviving
spouse.
For purposes of this sub-section, a surviving spouse
includes every husband and wife of a de facto monogamous and
[polygamous] Muslim
marriage solemnised under the religion of Islam
.’
(c) The twelfth respondent’s decision that the third applicant
is not a ‘surviving spouse’ of the late Osman
Harneker
for purposes of receiving benefits under
section 2C(1)
of the
Wills
Act falls
to be reviewed and set aside.
(d) The third applicant is declared a ‘surviving spouse’
of the late Osman Harneker in whom benefits vest under
section
2C(1)
of the
Wills Act.
(e
) The Registrar of Deeds, Cape Town is directed to register
transfer of ERF . . . Cape Town from estate of the late Osman
Harneker
into the joint names of second applicant and third
applicant.
(f) None of the orders granted herein shall affect the validity of
any act performed in respect of the administration of a testate

estate that has been finally wound up under the
Administration of
Estates Act 66 of 1965
or any other similar statute by the date of
this order.
(g) The orders in paragraphs (a) – (f) are suspended pending
the confirmation thereof by the Constitutional Court in terms
of
section 15(1)(a)
of the
Superior Courts Act, 10 of 2013
.”
[18]
In addition to the confirmation of the High Court’s
order, the applicants also called upon this Court to rule on how
section 2C(1)
should apply practically so that a fair distribution of
assets may occur between spouses.  The applicants suggest that a
finding
that assets should always be divided equally among surviving
spouses would advance the value of equality.  But a ruling of

this nature may infringe on the principle of freedom of testation,
which is fundamental to testate succession.  It would therefore

be ill-advised for this Court to make any such pronouncement.
If the division of assets in a particular will offends public
policy,
which is now rooted in our Constitution and its enshrined values,
then an affected individual is entitled to apply to the
High Court
for relief.
[18]
[19]
The respondents and the amicus also submitted that an addition
should be made to the order to the effect that, should any serious

administrative or practical problems arise in the implementation of
this order, any interested person may approach this Court for
a
variation of this order, as was done in
Ramuhovhi.
[19]
I do not think this addition is warranted in this Court’s
order in the present case because the retrospectivity of
the order is
appropriately limited, and the applicants have not requested that it
should be included.
[20]
I would accordingly confirm the order of the High Court.
Order
[21]
The following order is made:
1. The declaration of constitutional invalidity of
section 2C(1)
of
the
Wills Act 7 of 1953
by the High Court of South Africa,
Western Cape Division, Cape Town, is confirmed.
2.
Section 2C(1)
of the
Wills Act 7 of 1953
is to be read as
including the following underlined words:
“If
any descendants of a testator, excluding a minor or a mentally ill
descendant, who, together with the surviving spouse
of the testator,
is entitled to a benefit in terms of a will renounces his right to
receive such benefit, such benefit shall vest
in the surviving
spouse.
For the purposes of this sub-section, a ‘surviving
spouse’ includes every husband and wife of a monogamous and
polygamous
Muslim marriage solemnised under the religion of Islam.
”
3. The declaration of invalidity operates retrospectively with effect
from 27 April 1994 except that it does not invalidate any
transfer of
ownership that was finalised prior to the date of this order of any
property pursuant to the application of
section 2C(1)
of the
Wills
Act 7 of 1953
unless it is established that, when the 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. The Women’s Legal Centre Trust is admitted as amicus curiae.
5. There is no order as to costs.
For the Applicants:
F Moosa of Fareed Moosa & Associates Inc
For the First and
Second Respondents: K Pillay instructed by the State Attorney
For the Amicus
Curiae: S Kazee instructed by the Women’s Legal Centre
[1]
7 of 1953.
[2]
Moosa N.O. v Harneker
[2017] ZAWCHC 97
;
2017 (6) SA 425
(WCC)
(High Court judgment).
[3]
Rule 13(2)
of the Rules of the Constitutional Court, GN R1675
GG
25726 (31 October 2003) provides that “[o]ral argument shall
not be allowed if directions to that effect are given by the
Chief
Justice”.
[4]
High Court judgment above n 2 at paras 3-14.
[5]
See full text of
section 2C
above at [1].
[6]
High Court judgment above n 2 at para 13.  Spouses are only
recognised formally under South African law when legislation
makes
provision for the official registration of their union.  The
Marriage Act 25 of 1961, the
Civil Union Act 17 of 2006
, and the
Recognition of Customary Marriages Act 130 of 1998
all provide for
the formal registration of unions in terms of these statutes.  In
contrast, there is no legislation that
provides for the registration
of Muslim marriages.
[7]
The relevant provisions of section 9 of the Constitution read as
follows:
“(1)
Everyone is equal before the law and has the right to equal
protection
and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and

freedoms. To promote the achievement of equality, legislative and
other measures designed to protect or advance persons, or categories

of persons, disadvantaged by unfair discrimination may be taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour,
sexual
orientation, age, disability, religion, conscience, belief, culture,
language and birth.
(4)
No person may unfairly discriminate directly or indirectly against

anyone on one or more grounds in terms of subsection (3).”
Section 10 of the
Constitution reads as follows:
“Everyone has
inherent dignity and the right to have their dignity respected and
protected.”
[8]
See
Hassam v Jacobs N.O.
[2009] ZACC 19
;
2009 (5) SA 572
(CC);
2009 (11) BCLR 1148
(CC) at para 48;
Daniels v Campbell
N.O.
[2004] ZACC 14
;
2004 (5) SA 572
(CC);
2004 (7) BCLR 735
(CC) at para 54 and
Minister of Finance v Van Heerden
[2004]
ZACC 3
;
2004 (6) SA 121
(CC);
2004 (11) BCLR 1125
(CC) at para 27.
[9]
25 of 1961.
[10]
High Court judgment above n 2 at para 28.
[11]
Id.
[12]
Id.  As stated in n 6 above, the
Recognition of Customary
Marriages Act now legally
recognises polygamous customary marriages
concluded under African Customary Law by providing a statutory
mechanism for the formal
registration of these marriages.  The
effect of this is that registered customary law polygamous marriages
fall within the
section’s ambit since partners in an African
Customary Law marriage are “spouses” in a legally
recognised marriage.
No similar legislative provision has been
made for the formal registration of Muslim marriages to date.
They are
therefore excluded from the scope of
section 2C(1)
of the
Wills Act.
[13
]
Hassam
above n 8 at para 51.
[14]
High Court judgment above n 2 at para 37.
[15]
UN General Assembly, Convention on the Elimination of All Forms of
Discrimination against Women, 18 December 1979, United Nations,

Treaty Series, vol. 1249, p 13 at Article 2(f).
[16]
See
Volks N.O. v Robinson
[2005] ZACC 2
; 2009 JDR 1018 (CC)
[2005] ZACC 2
; ;
2005 (5) BCLR 446
(CC) (
Robinson
) at para 79.
[17]
Dawood v Minister of Home Affairs; Shalabi v Minister of Home
Affairs; Thomas v Minister of Home Affairs
[2000] ZACC 8
;
2000
(3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 37.
[18]
See
Harper v Crawford N.O.
[2017] ZAWCHC 78
;
2018 (1) SA 589
(WCC) at para 14 and
Minister of Education and Another v Syfrets
Trust Ltd N.O.
[2006] ZAWCHC 65
;
2006 (4) SA 205
(C);
2006 (10)
BCLR 1214
(C) at para 24.
[19]
Ramuhovhi v President of the Republic of South Africa
[2017]
ZACC 41
;
2018 (2) SA 1
(CC);
2018 (2) BCLR 217
(CC) at para 65.