Moosa NO and Others v Harnaker and Others
Neutral citation: Moosa NO and Others v Harnaker and Others (400/17)  ZAWCHC 97 (14 September 2017)
Judgment: L Grange, J
Decided on: 14 September 2017
Summary: Wills Act – s2C(1) – interpretation of surviving spouse – narrow interpretation inconsistent with Constitution – inclusion of spouses in marriages concluded according to Muslim rites – Constitutional Court to confirm
An unopposed application was brought by two surviving spouses in a polygynous marriage, based on the following facts:
The deceased, Osman Harnaker, married his first wife according to Muslim rites on 10 March 1957. Thereafter, on 31 May 1964, with the permission of the first wife, he married a second wife in terms of Muslim rites. Later on in life, in order to obtain a home loan, the deceased formalised his marriage to his first wife under South African law. The marriage to the second spouse was never formalised and remained subject to Muslim rites.
The deceased left a will dated 23 January 2011, in terms of which his estate was to devolve in terms of Islamic Law, and that a certificate from a recognised Muslim Judicial Authority shall be final and binding upon his executors. A certificate was duly issued whereby the property was to be distributed in varying shares to the deceased’s descendants and surviving spouses. All surviving descendants renounced their benefits in terms of the certificate, in writing. The executor then relied on section 2C(1) of the Wills Act rather than the Islamic Law regulating renunciation. He considered both spouses to be “surviving spouses”, and drew up the Liquidation and Distribution Account accordingly. The Master duly accepted the account.
When the executor sought to effect registration in terms of the liquidation and distribution account, the Registrar approved the registration to the spouse whose marriage had been formalised under South African law, but disputed the inclusion of the spouse married in terms of Islamic rites, arguing that a strict interpretation of the term “surviving spouse” should be favoured. Registration was refused and the applicants proceeded to bring the application to resolve the matter.
The Applicants argued that the facts of the matter clearly discriminated against widows in polygynous Muslim marriages, and that because the marriage to the second wife was solemnized in accordance with the Muslim faith, section 9 of the Constitution was applicable. It was further argued that it would be irrational to classify the polygynous marriage as less significant as civil marriages or customary marriages, and that to regard such marriages as less significant undermines the dignity of spouses’ party to such marriages. Accordingly, the effect given to section 2C(1) by the Registrar unfairly discriminated against the second spouse on grounds of both religion and marital status.
The Women Legal Centre Trust, as amicus curiae, supported the relief sought by the applicants. It contended that women affected by the non-recognition of Muslim marriages are vulnerable and marginalised. In the absence of proper legislation recognising Muslim marriages and its proprietary consequences, the women falling in this category ordinarily suffer hardship in many various ways.
Reference was made on previously decided cases where the definition of ‘surviving spouse’ was extended to include women in monogamous and polygynous Muslim marriages to be entitled to maintenance under the Maintenance of Surviving Spouses Act 27 of 1990 and to inherit in terms of the Intestate Succession Act 81 of 1987.
The Wills Act is silent with regard to the definition of ‘survivor’ or any variation thereof when used in relation to ‘spouse’. The court considered the history of the Will Act and the laws applicable when the Act was enacted, before concluding that the interpretation of the term could only have been informed by the common law definition applicable at that point in time, which was based on monogamy.
It accordingly held that any argument that the legislature sought to afford benefits under section 2C(1) exclusively to spouses a monogamous civil marriage, could not disregarded entirely.
The court then considered whether the exclusion inferred above violates section 9 of the Constitution. After consulting case law, the court found that the exclusion amounted to discrimination, and that such discrimination is unfair. The court then turned to the question of whether or not the unfair discrimination advances a legitimate government purpose, which was answered in the negative. The court held that the second spouse was discriminated against based on her religion and marital status. The exclusion of widows in polygynous Muslim marriages from the protection of s 2C(1) was found to be unconstitutional and unjust as the provision affords a widow in a civil monogamous marriage some benefits but deny the same to a widow in a Muslim polygynous marriage.
The court ordered that the appropriate remedy would be the reading-in as follows: “For purposes of this sub-section, a ‘surviving spouse’ includes every husband and wife of a de facto monogamous and polygynous Muslim marriage solemnised under the religion of Islam.”
The order was suspended pending confirmation by the Constitutional Court.
While this decision is long overdue, and brings welcome uniformity to the field of family law, it fails to remedy the plight of Hindu marriages. The oversight by the legislature to recognise marriages in terms of Islamic of Hindu rites, remains an issue, and we can only hope that legislation similar to the Recognition of Marriages Act 120 of 1998, will be enacted in the near future to address the discrimination comprehensively.
Allen West and Glenda Mulder