Moosa NO and Others v Harnaker and Others (400/17) [2017] ZAWCHC 97; [2017] 4 All SA 498 (WCC); 2017 (6) SA 425 (WCC) (14 September 2017)

Moosa NO and Others v Harnaker and Others (400/17) [2017] ZAWCHC 97; [2017] 4 All SA 498 (WCC); 2017 (6) SA 425 (WCC) (14 September 2017)

Section 2C(1) of the Wills Act, 7 of 1953, is unconstitutional and invalid to the extent that it excludes spouses in polygynous Muslim marriages from its protection. The differentiation between surviving spouses in civil, customary, and Muslim marriages amounts to unfair discrimination on the grounds of religion and marital status, violating section 9 of the Constitution. The exclusion is not rationally connected to a legitimate government purpose and perpetuates historical disadvantage against women in Muslim marriages. The constitutional defect is remedied by reading-in words to section 2C(1) to include every husband and wife of a de facto monogamous and polygynous Muslim marriage...

Citation
[2017] ZAWCHC 97
Parties
Applicant: Fareed Moosa N.O.; Applicant: Amina Harnaker; Applicant: Farieda Harneker; Respondent: Nazeer Harnaker; Respondent: Zahraa Harnaker; Respondent: Nazia Luddy; Respondent: Safaa Luddy N.O.; Respondent: Ikhlaas Bachooa; Respondent: Fatima-Zahra Bachooa; Respondent: Siham Nadeem N.O.; Respondent: Minister of Justice and Constitutional Development; Respondent: Master of the High Court of South Africa, Western Cape; Respondent: Registrar of Deeds, Cape Town; Amicus Curiae: Women's Legal Centre Trust
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
14 September 2017
Case Number
400/17
Procedural Posture
Constitutional Application / First Instance
Outcome
Application granted; section 2C(1) of the Wills Act declared unconstitutional and invalid to the extent of its exclusion of spouses in polygynous Muslim marriages; reading-in remedy ordered; Twelfth Respondent's decision set aside; Third Applicant declared a 'surviving spouse'; orders suspended pending...
Judges
Le Grange
Legal Topics
Equality Clause, Muslim Marriage Recognition, Reading in Remedy, Wills Act Interpretation, Surviving Spouse Definition
Constitutional Law Family and Children Equality Clause Muslim Marriage Recognition Reading in Remedy Wills Act Interpretation Surviving Spouse Definition

Case Brief

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Parties

Fareed Moosa N.O.

Applicant

Amina Harnaker

Applicant

Farieda Harneker

Applicant

Nazeer Harnaker

Respondent

Zahraa Harnaker

Respondent

Nazia Luddy

Respondent

Safaa Luddy N.O.

Respondent

Ikhlaas Bachooa

Respondent

Fatima-Zahra Bachooa

Respondent

Siham Nadeem N.O.

Respondent

Minister of Justice and Constitutional Development

Respondent

Master of the High Court of South Africa, Western Cape

Respondent

Registrar of Deeds, Cape Town

Respondent

Women's Legal Centre Trust

Amicus Curiae

Procedural Posture

Constitutional Application / First Instance

Legal Issues

  1. 1 Whether section 2C(1) of the Wills Act, 7 of 1953, is unconstitutional to the extent that it excludes spouses in polygynous Muslim marriages from its protection.
  2. 2 Whether the definition of 'surviving spouse' in section 2C(1) should be extended to include spouses in polygynous Muslim marriages for the purposes of inheritance under a will.
  3. 3 Whether the Twelfth Respondent's refusal to register property in the name of the Third Applicant, based on a narrow interpretation of 'surviving spouse', constitutes unfair discrimination.

Ratio Decidendi

Section 2C(1) of the Wills Act, 7 of 1953, is unconstitutional and invalid to the extent that it excludes spouses in polygynous Muslim marriages from its protection. The differentiation between surviving spouses in civil, customary, and Muslim marriages amounts to unfair discrimination on the grounds of religion and marital status, violating section 9 of the Constitution. The exclusion is not rationally connected to a legitimate government purpose and perpetuates historical disadvantage against women in Muslim marriages. The constitutional defect is remedied by reading-in words to section 2C(1) to include every husband and wife of a de facto monogamous and polygynous Muslim marriage...

Court Disposition

Application granted; section 2C(1) of the Wills Act declared unconstitutional and invalid to the extent of its exclusion of spouses in polygynous Muslim marriages; reading-in remedy ordered; Twelfth Respondent's decision set aside; Third Applicant declared a 'surviving spouse'; orders suspended pending...

Orders

  • Section 2C(1) of the Wills Act is declared inconsistent with the Constitution and invalid to the extent that it excludes spouses in Muslim marriages, including polygynous unions.
  • Section 2C(1) is to be read as including every husband and wife of a de facto monogamous and polygynous Muslim marriage solemnised under Islamic rites as 'surviving spouse'.