Moosa NO and Others v Minister of Justice and Correctional Services and Others (CCT251/17) [2018] ZACC 19; 2018 (5) SA 13 (CC); 2018 (10) BCLR 1280 (CC) (29 June 2018)

Moosa NO and Others v Minister of Justice and Correctional Services and Others (CCT251/17) [2018] ZACC 19; 2018 (5) SA 13 (CC); 2018 (10) BCLR 1280 (CC) (29 June 2018)

Section 2C(1) of the Wills Act is unconstitutional to the extent that it excludes spouses in monogamous and polygamous Muslim marriages from the definition of 'surviving spouse'. This exclusion constitutes direct discrimination on the grounds of religion and marital status, violating sections 9 and 10 of the Constitution. The Court confirmed the High Court's order and held that the definition of 'surviving spouse' must be read to include every husband and wife of a monogamous and polygamous Muslim marriage solemnised under the religion of Islam. The declaration of invalidity operates retrospectively from 27 April 1994, except where property transfers were finalised before the date of the...

Citation
[2018] ZACC 19
Parties
Applicant: Fareed Moosa N.O.; Applicant: Amina Harneker; Applicant: Farieda Harneker; Respondent: Minister of Justice and Correctional Services; Respondent: Master of the High Court of South Africa, Western Cape; Respondent: Registrar of Deeds, Cape Town; Amicus Curiae: Trustees of the Women’s Legal Centre Trust
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
29 June 2018
Case Number
CCT251/17
Procedural Posture
Constitutional Confirmation / Application for Confirmation of High Court Order of Constitutional Invalidity
Outcome
The Constitutional Court confirms the High Court's declaration of constitutional invalidity of section 2C(1) of the Wills Act and orders that the definition of 'surviving spouse' be read to include spouses in monogamous and polygamous Muslim marriages. The declaration operates retrospectively from 27 April 1994,...
Judges
Mogoeng, Zondo, Cachalia, Dlodlo, Froneman, Goliath, Jafta, Khampepe, Madlanga, Petse, Theron
Legal Topics
Equality Clause, Dignity, Muslim Marriage Recognition, Testate Succession, Wills Act, Discrimination Against Women
Constitutional Law Family and Children Equality Clause Dignity Muslim Marriage Recognition Testate Succession Wills Act Discrimination Against Women

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Parties

Fareed Moosa N.O.

Applicant

Amina Harneker

Applicant

Farieda Harneker

Applicant

Minister of Justice and Correctional Services

Respondent

Master of the High Court of South Africa, Western Cape

Respondent

Registrar of Deeds, Cape Town

Respondent

Trustees of the Women’s Legal Centre Trust

Amicus Curiae

Procedural Posture

Constitutional Confirmation / Application for Confirmation of High Court Order of Constitutional Invalidity

Legal Issues

  1. 1 Does section 2C(1) of the Wills Act unconstitutionally exclude spouses in polygamous Muslim marriages from the definition of 'surviving spouse'?
  2. 2 Does this exclusion violate the rights to equality and dignity under sections 9 and 10 of the Constitution?
  3. 3 Should the definition of 'surviving spouse' in section 2C(1) be read to include spouses in monogamous and polygamous Muslim marriages?

Ratio Decidendi

Section 2C(1) of the Wills Act is unconstitutional to the extent that it excludes spouses in monogamous and polygamous Muslim marriages from the definition of 'surviving spouse'. This exclusion constitutes direct discrimination on the grounds of religion and marital status, violating sections 9 and 10 of the Constitution. The Court confirmed the High Court's order and held that the definition of 'surviving spouse' must be read to include every husband and wife of a monogamous and polygamous Muslim marriage solemnised under the religion of Islam. The declaration of invalidity operates retrospectively from 27 April 1994, except where property transfers were finalised before the date of the...

Court Disposition

The Constitutional Court confirms the High Court's declaration of constitutional invalidity of section 2C(1) of the Wills Act and orders that the definition of 'surviving spouse' be read to include spouses in monogamous and polygamous Muslim marriages. The declaration operates retrospectively from 27 April 1994,...

Orders

  • The declaration of constitutional invalidity of section 2C(1) of the Wills Act 7 of 1953 by the High Court is confirmed.
  • Section 2C(1) of the Wills Act 7 of 1953 is to be read as including: '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.'