Hassam v Jacobs NO and Others (CCT83/08) [2009] ZACC 19; 2009 (11) BCLR 1148 (CC) ; 2009 (5) SA 572 (CC) (15 July 2009)

Hassam v Jacobs NO and Others (CCT83/08) [2009] ZACC 19; 2009 (11) BCLR 1148 (CC) ; 2009 (5) SA 572 (CC) (15 July 2009)

The exclusion of spouses in polygynous Muslim marriages from the protection of the Intestate Succession Act constitutes unfair discrimination on the grounds of gender, marital status, and religion, violating section 9(3) of the Constitution. The Act's differentiation is not justifiable under section 36, as it perpetuates historical prejudice and denies vulnerable women substantive equality and dignity. The word 'spouse' in the Act cannot, as a matter of statutory interpretation, be read to include multiple spouses in polygynous marriages. To cure the constitutional defect, the Act must be read as though the words 'or spouses' appear after each use of 'spouse' in section 1, thereby...

Citation
[2009] ZACC 19
Parties
Applicant: Fatima Gabie Hassam; Respondent: Johan Hermanus Jacobs NO; Respondent: Master of the High Court; Respondent: Mariam Hassam; Respondent: Mariam Hassam NO; Respondent: Minister for Justice and Constitutional Development
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
15 July 2009
Case Number
CCT83/08
Procedural Posture
Constitutional Confirmation / Application for Confirmation of Declaration of Constitutional Invalidity
Outcome
Declaration of constitutional invalidity of section 1 of the Intestate Succession Act confirmed; Act to be read as including 'or spouses' after 'spouse'; remedy retrospective to 27 April 1994 with exceptions; costs awarded to applicant against the Minister.
Judges
Nkabinde, Langa, Moseneke, Cameron, Mokgoro, Ngcobo, O'Regan, Sachs, Skweyiya, Van der Westhuizen, Yacoob
Legal Topics
Equality Clause, Intestate Succession, Muslim Personal Law, Gender Discrimination, Interpretation of Statutes
Constitutional Law Family and Children Equality Clause Intestate Succession Muslim Personal Law Gender Discrimination Interpretation of Statutes

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Parties

Fatima Gabie Hassam

Applicant

Johan Hermanus Jacobs NO

Respondent

Master of the High Court

Respondent

Mariam Hassam

Respondent

Mariam Hassam NO

Respondent

Minister for Justice and Constitutional Development

Respondent

Procedural Posture

Constitutional Confirmation / Application for Confirmation of Declaration of Constitutional Invalidity

Legal Issues

  1. 1 Does the exclusion of spouses in polygynous Muslim marriages from the Intestate Succession Act violate section 9(3) of the Constitution?
  2. 2 Does the exclusion constitute discrimination, and if so, is it unfair and justifiable under section 36?
  3. 3 Can the word 'spouse' in the Act be interpreted to include spouses in polygynous Muslim marriages?

Ratio Decidendi

The exclusion of spouses in polygynous Muslim marriages from the protection of the Intestate Succession Act constitutes unfair discrimination on the grounds of gender, marital status, and religion, violating section 9(3) of the Constitution. The Act's differentiation is not justifiable under section 36, as it perpetuates historical prejudice and denies vulnerable women substantive equality and dignity. The word 'spouse' in the Act cannot, as a matter of statutory interpretation, be read to include multiple spouses in polygynous marriages. To cure the constitutional defect, the Act must be read as though the words 'or spouses' appear after each use of 'spouse' in section 1, thereby...

Court Disposition

Declaration of constitutional invalidity of section 1 of the Intestate Succession Act confirmed; Act to be read as including 'or spouses' after 'spouse'; remedy retrospective to 27 April 1994 with exceptions; costs awarded to applicant against the Minister.

Orders

  • The application for confirmation is granted.
  • Section 1 of the Intestate Succession Act 81 of 1987 is declared inconsistent with the Constitution and invalid to the extent that it does not include more than one spouse in a polygynous Muslim marriage.