Hassam v Jacobs NO and Others (5704/2004) [2008] ZAWCHC 37; [2008] 4 All SA 350 (C) (18 July 2008)

Hassam v Jacobs NO and Others (5704/2004) [2008] ZAWCHC 37; [2008] 4 All SA 350 (C) (18 July 2008)

The court held that the exclusion of surviving spouses of polygynous Muslim marriages from the benefits of the Intestate Succession Act and the Maintenance of Surviving Spouses Act constitutes unfair discrimination based on marital status, religion, and culture, and infringes their constitutional rights to equality and dignity. The statutory language is capable of being interpreted to include multiple spouses, and where linguistic difficulties arise, such as in section 1(4)(f) of the Intestate Succession Act, a reading-in remedy is appropriate to ensure constitutional compliance. The court declared that both Acts must be interpreted to include surviving spouses of polygynous Muslim...

Citation
[2008] ZAWCHC 37
Parties
Applicant: Fatima Gabie Hassam; Respondent: Johan Hermanus Jacobs N.O.; Respondent: Master of the High Court; Respondent: Miriam Hassam; Respondent: Miriam Hassam N.O.; Respondent: Minister of Justice and Constitutional Development; Amicus Curiae: Women's Legal Centre Trust
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 July 2008
Case Number
5704/2004
Procedural Posture
Constitutional Application / First Instance Judgment
Outcome
Application granted. The court declared that surviving spouses of polygynous Muslim marriages are entitled to benefits under the Intestate Succession Act and the Maintenance of Surviving Spouses Act, and ordered a constitutional remedy for section 1(4)(f) of the Intestate Succession Act.
Judges
D Van Reenen
Legal Topics
Intestate Succession, Maintenance of Surviving Spouses, Muslim Personal Law, Equality, Discrimination, Statutory Interpretation
Constitutional Law Family and Children Intestate Succession Maintenance of Surviving Spouses Muslim Personal Law Equality Discrimination Statutory Interpretation

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Parties

Fatima Gabie Hassam

Applicant

Johan Hermanus Jacobs N.O.

Respondent

Master of the High Court

Respondent

Miriam Hassam

Respondent

Miriam Hassam N.O.

Respondent

Minister of Justice and Constitutional Development

Respondent

Women's Legal Centre Trust

Amicus Curiae

Procedural Posture

Constitutional Application / First Instance Judgment

Legal Issues

  1. 1 Whether surviving spouses of polygynous Muslim marriages are entitled to benefits under the Intestate Succession Act and the Maintenance of Surviving Spouses Act.
  2. 2 Whether the exclusion of such spouses from the definition of 'spouse' and 'survivor' in the respective Acts is unconstitutional.
  3. 3 Whether section 1(4)(f) of the Intestate Succession Act is inconsistent with the Constitution for limiting inheritance to one spouse.

Ratio Decidendi

The court held that the exclusion of surviving spouses of polygynous Muslim marriages from the benefits of the Intestate Succession Act and the Maintenance of Surviving Spouses Act constitutes unfair discrimination based on marital status, religion, and culture, and infringes their constitutional rights to equality and dignity. The statutory language is capable of being interpreted to include multiple spouses, and where linguistic difficulties arise, such as in section 1(4)(f) of the Intestate Succession Act, a reading-in remedy is appropriate to ensure constitutional compliance. The court declared that both Acts must be interpreted to include surviving spouses of polygynous Muslim...

Court Disposition

Application granted. The court declared that surviving spouses of polygynous Muslim marriages are entitled to benefits under the Intestate Succession Act and the Maintenance of Surviving Spouses Act, and ordered a constitutional remedy for section 1(4)(f) of the Intestate Succession Act.

Orders

  • It is declared that the word 'survivor' in the Maintenance of Surviving Spouses Act 27 of 1990 includes a surviving partner to a polygamous Muslim marriage.
  • Fatima Gabie Hassam and Miriam Hassam are 'survivors' of the late Ebrahim Hassam for the purposes of the Maintenance of Surviving Spouses Act 27 of 1990.