Muslim women in polygamous Muslim marriages’ right to their deceased husband’s estate – with reference to the constitutional judgement of Moosa no and others v minister of justice and correctional services and others (cc)

Losing a spouse is hard enough, having to find out that you are not recognised as a “surviving spouse” in terms of the South African law and cannot inherit from your late husband adds to the grieve and despair.  For Muslim women in South Africa this was their reality for far too long, until the Western Cape High Court, and ultimately the Constitutional Court, changed this injustice.

The question under examination in the above matter was whether the Judgment handed down by the Western Cape High Court on 14 September 2017 by Le Grange J. concerning the validity of section 2C(1) of the Wills Act 7 of 1953 was correct.  This section regulates who will benefit if a descendant of the testator repudiates any benefits.  This section provided that such benefits vest in the “surviving spouse” of the testator.

The Western Cape High Court declared Section 2C(1) of the Act inconsistent with the Constitution in terms of Section 172 (1)(a) , and invalid to the extent that it does not recognise a “surviving spouse” in terms of Sharia’ah (Islam) law and therefore does not include multiple female spouses who were married to the deceased testator under polygamous Muslim marriages.

Briefly the facts in the Moosa matter:

Osman Harneker (the deceased) married Ms Amina Harneker (first wife) and later Ms Farieda Harneker under the tenets of Islamic law.  They had 9 children in total.  While Mr Harneker was still alive he purchased a home, but the deed of transfer only reflected Mr Harneker and Amina Herneker as owners, as they were “legally married”.  Mr Harneker then passed away and his will referred the benefit to both wives and his children.  All the children renounced the benefits due to them under the will.  Dr Fareed Moosa (the Applicant) was subsequently appointed as executor of the estate, and as executor he suggested that the children’s shares be distributed equally between first and second wife.  When Dr Moosa sought to register the half portion of the house to Mrs Amina Harneker and Farieda Harneker the Registrar of Deeds approved registration for the first wife, but not the second wife on the basis of the term “surviving spouse” in terms of Section 2C(1) of the Act, as it only covered spouses recognised formally under South African Law.

Dr Moosa  launched the application in the Western Cape High Court for a finding that Section 2C(1) of the Act is inconsistent with the Constitution and it violated the second wife’s rights to equality and dignity.


The finding of the High Court

The High Court indicated that Section 2C(1) was founded in the years before our Constitution was born.  It referred only to common law monogamous union, and created no room for interpretation otherwise.  It was later extended to recognise spouses married under customary marriages in terms of Customary African Law.  These marriages were all recognised by our Law and thus all the surviving Spouses could benefit in terms of Section 2C(1).

Section 2C(1) thus made a clear differentiation between spouses in a common law monogamous union and those married under Islam Law, who are not recognised as spouses.  Since only spouses in terms of the common law monogamous unions are recognised in terms of Section 2C(1), it was blatantly clear that the Section discriminated against women in polygamous Muslim marriages.

It was further clear that since our law recognises Customary marriages in terms of Customary African Law the section further discriminated against spouses married under the Customary African Law and those married under Muslim Law, as the latter was not recognised as a spouse for purposes of Section 2C(1).

The Court rightly found that the differentiations, as discussed above, “bears no rational connection to a legitimate governmental purpose and therefore constitutes unfair discrimination in breach of section 9(3) of the Constitution”.

The Court further concluded that Section 2C(1) differentiated between the rights of the first wife and that of the Second wife, since the first wife was recognised as a “surviving spouse” by virtue of her civil union with the deceased, but excluded the second wife since their union was based in Islamic law.  The Court found that this constitutes discrimination against the second wife on the basis of her culture and religion.  There exists no logical, legitimate reason for the discrimination and it was thus found that it was in breach of the spirit and purpose of our Constitution.




The Constitutional Judgment

The Constitutional Court upheld the findings of the Western Cape High Court.  It was confirmed that the Section, as it then stood, infringed on the second’s wife’s right to equality and dignity and that the wording of the Section must indeed be amended.  Ultimately the following was included in Section 2C(1) in order to align the Section with the Constitution:

“…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.”

It is lastly, important to note that the Constitutional Court declared the invalidity to operate retrospectively with effect from 27 April 1994, but added an important proviso.  The order specifically reads:

“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”

Marguerite Kirchner