Moosa NO and others v Minister of Justice and Correctional Services and others (Trustees of The Women’s Legal Centre Trust as Amicus Curiae) CCT 251/17:
The Women’s Legal Centre welcomes the unanimous judgment handed down this morning (29 June 2018) by the Constitutional Court in the matter of Moosa NO and Others v Minister of Justice and Correctional Services and Others (Trustees of the Women’s Legal Centre Trust as Amicus Curiae). Once again, the Court has had to come to the assistance of Muslim women in this country, who continue to face the negative consequences of their marriages not being legally recognised.
The judgment was a confirmation of the order handed down in the Western Cape High Court on 14 September 2017 by Le Grange, J. The case concerned the validity of section 2C(1) of the Wills Act 7 of 1953 (hereafter referred to as the Act), which regulates in whom benefits repudiated by a descendant of a testator can vest upon repudiation by the descendant. The section provides that such benefits vest in the ‘surviving spouse’ of the testator. The 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, for the purposes 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 to the extent that….[it] does not include multiple female spouses who were married to a deceased testator under polygynous Muslim marriages.’ The judge ordered that the section be read so as to include the words ‘For the 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 First Applicant in the case was the executor of the deceased’s estate, and the Second and Third Applicants were the deceased’s first and second wives. The Women’s Legal Centre (WLC) was admitted to both the High Court and the Constitutional Court proceedings as an amicus curiae, and through its written submissions to the Court the WLC provided ‘valuable context regarding the experiences of Muslim women in South Africa and drew attention to South Africa’s international law obligations.’ The Women’s Legal Centre has, as one of its core objectives, the development of law, policy, and feminist jurisprudence based on an intersectional approach with substantive equality as its foundation. One of our core programmatic areas is Women’s Housing, Land, and Property Rights, through which we advance the recognition of women’s independent rights to housing, land and property, and to enable decision-making in respect of these rights. Some of the core objectives of this programme are the legal recognition of all relationships, irrespective of, among other things, religion, as well as to ensure the equal application of law and legal obligations arising from relationships.
The facts of the case concerned two wives who were married to the deceased in terms of Muslim rites. In order to obtain a bank loan that would fund the purchase of the family’s home, the deceased married his first wife (the second applicant) in terms of the prescripts of the Marriage Act 25 of 1961 as well. Thus, the deed of transfer reflected the names of the deceased as well as that of the second applicant. In his will the deceased directed that his estate be distributed according to Islamic law, and that the estate be divided so that equal shares be transferred to each of his wives (1/16 shares), 7/52 be transferred to each of his sons, and 7/104 be transferred to his daughters. In order to ensure that their mothers received the immovable property, all of the children repudiated the benefits due to them under the will. However, the Registrar of Deeds declined to register the repudiated share of the property in the name of the third applicant (the deceased’s second wife, married only by Muslim rites). The Registrar believed that the term ‘surviving spouse’ in section 2C(1) of the Act could only be interpreted so as to include spouses ‘recognised formally under this country’s laws.’
The Court agreed with the applicants’ contention, and the High Court’s reasoning, that section 2C(1) of the Act infringed the third applicant’s Constitutional rights to equality and dignity. The Constitutional Court found that the section discriminated against the third applicant on the basis of her religion and marital status. The Court stated that including in the phrase ‘surviving spouse’ a definition which includes spouses married in terms of Muslim rites, whether the marriage was de facto monogamous or polygamous would, as submitted by the WLC, accord with South Africa’s obligations in terms of the Convention on the Elimination of All Forms of Discrimination against Women. In addition, the Court found that: ‘The non-recognition of her [the third applicant’s] 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.’
The Court agreed with the WLC’s submission that ‘this vulnerability is compounded because there is currently no legislation that recognises Muslim marriages or regulates their consequences.’ The non recognition of the third applicant as a ‘surviving spouse’ the Court thus found, infringes her right to dignity. As a result of these findings, the Court confirmed the declaration of constitutional invalidity as it pertained to section 2C(1), it ordered that the section should be read so as to include the words ‘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.”’ In addition, the declaration of invalidity was ordered to operate retrospectively with effect from 27 April 1994, except that it does not have a bearing on transfers of ownership that were finalised prior to the order being handed down.