Daniels v Campbell NO and Others

• Jurisdiction: South Africa
• Court: Constitutional Court
• Judge: Chaskalson CJ, Langa DCJ, Ackermann J, Mokgoro J, Ngcobo J, O'Regan J, Sach J, Yacoob J, Madala J and Moseneke J
• Judgment Date: 11 March 2004
• Citation: 2004 (5) SA 331 (CC)
• Hearing Date: 06 November 2003
• Docket Number: CCT 40/03
• Counsel: M Chaskalson and R Williams for the applicant. A M Breitenbach and N Bawa for the first and second respondents. No appearance for the third to seventh respondents. N Cassim SC (with A Kalla) for the eighth respondent. No appearance for the ninth and tenth respondents.

Sachs J:

[1] This case concerns an application for confirmation of an order, [1] and, in the alternative, an appeal against the order [2] made by the High Court in Cape Town (the High Court) declaring certain provisions of the Intestate Succession Act [3] and the Maintenance of Surviving Spouses Act [4] unconstitutional and D invalid for failing to include persons married according to Muslim rites as spouses for the purposes of these Acts.

[2] Section 1 of the Intestate Succession Act states:

'1. Intestate succession E

(1) If after the commencement of this Act a person (hereinafter referred to as the ''deceased'') dies intestate, either wholly or in part, and -

(a)

is survived by a spouse, but not by a descendant, such spouse shall inherit the intestate estate;

(b)

is survived by a descendant, but not by a spouse, such descendant shall inherit the intestate estate; F

(c)

is survived by a spouse as well as a descendant -

(i)

such spouse shall inherit a child's share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed from time to time by the Minister of Justice by notice in the Gazette, whichever is the greater; and

(ii)

such descendant shall inherit the residue (if any) of the intestate estate;

(d)

. . . . ' G

Section 2(1) of the Maintenance of Surviving Spouses Act states:

'2. Claim for maintenance against estate of deceased spouse

(1) If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide H therefor from his own means and earnings.'

In terms of s 1 of the Maintenance of Surviving Spouses Act 'survivor' is defined as 'the surviving spouse in a marriage dissolved by death'. I

Sachs J

Although both Acts confer rights on spouses who are predeceased by their husbands or wives, in neither is the word A 'spouse' defined.

[3] The applicant married her now deceased husband by Muslim rites in 1977. The marriage, which was at all times monogamous, was not solemnised by a marriage officer appointed in terms of the Marriage Act. [5] No children were born of this marriage, though the applicant and her deceased husband had children from B previous marriages. The deceased died intestate in 1994.

[4] The main asset in the deceased estate is a modest house in a low-income suburb of Cape Town. [6] The applicant is a domestic worker who has supplemented her income by selling goods from in front of her house. She resides on the property, having lived C there for nearly 30 years. In July 1969 her first husband, to whom she was also married by Muslim rites, submitted a written application to the City of Cape Town to rent a council dwelling. In 1976, after she and her first husband were divorced, the City of Cape Town allocated the dwelling to her in her own name. The applicant and her children D were in occupation of the property when she married the deceased by Muslim rites in 1977. She informed the City of Cape Town of her remarriage and furnished it with a copy of her marriage certificate. In accordance with its then policy of registering the principal breadwinner of the family as the tenant, the City of Cape Town E transferred the tenancy of the property to the deceased.

[5] Tenants of council houses were later given the opportunity to purchase such houses and in 1990, the deceased entered into an instalment-sale agreement to purchase the house from the City of Cape Town. The applicant, who had contributed substantially towards the household expenses, including the rent and the service charges, as well as towards the purchase price of the property, also signed the deed of F sale. [7] When the deceased died the outstanding balance owing on the purchase price of the property was written off in terms of State policy and the property was transferred to the estate of the deceased in 1998. G

[6] The second respondent and first respondent were thereafter respectively appointed in 2000 and 2001 by the tenth respondent, the Master of the High Court (the Master) as the executors, [8] the second respondent as executor of the estate of the deceased and the first respondent as executor of the estate of a deceased son of the latter from his previous marriage. I will refer to them as the executors. H

[7] The third to seventh respondents are interested family members. The eighth respondent is the Minister of Justice and Constitutional Development (the Minister). The ninth respondent is the Registrar of Deeds I

Sachs J

and the tenth respondent is the Master. None of these respondents oppose the application. A

[8] The applicant was told by the Master that she could not inherit from the estate of the deceased because she had been married in terms of Muslim rites, and therefore was not a 'surviving spouse'. A claim for maintenance against the estate was rejected on the same basis. With the support of the Women's Legal Centre, the applicant B approached the High Court for an order declaring that she was a spouse of the deceased and his survivor. In the alternative, she asked for the Acts to be declared unconstitutional to the extent that they discriminated unfairly against Muslim marriages. C

Proceedings in the High Court

[9] The High Court reluctantly came to the conclusion that the applicant was not a 'spouse' or 'survivor' for the purposes of the Acts. This was because her marriage to the deceased was not recognised as a valid marriage in terms of South African law. Van Heerden J held that: D

'(M)arriages by Muslim rites have . . . not been recognised by South African courts as valid . . . marriages, firstly, because such marriages are potentially polygamous and hence contrary to public policy (whether or not the actual union is in fact monogamous) and secondly, because such marriages are not solemnised by authorised marriage officers in accordance with the provisions of the Marriage Act E 25 of 1961.' [9]

[10] In reaching her conclusion, Van Heerden J considered herself bound by the decisions of this Court on the interpretation of the word 'spouse' in the National Coalition [10] case and in the Satchwell case. [11] She was of the view that these cases made it clear that the term 'spouse' only F applied to parties to a marriage recognised as valid in terms of South African law. [12] A second consideration was the existence of a number of statutes where express provision for the inclusion of the parties to a Muslim union had been made, for example the Estate Duty Act [13] as amended. By explicitly creating exceptions to the general rule that the only marriages to G which legal consequences are attached are those solemnised in accordance with the provisions of the Marriage Act, these statutes supported the view that in the absence of any such deeming or interpretative provision, the word 'spouse' must be given its 'traditional, limited meaning'. In her view, accordingly, the statutes as they stand could not be interpreted to include parties to H Muslim marriages under the term 'spouses'. Amendments to provide the broader meaning lay in the hands of the Legislature. [14]

Sachs J

[11] The learned Judge went on to consider the constitutional consequences of such an interpretation. After a comprehensive A contextual analysis of the impact of the Acts, she concluded that the interplay between the applicant's religious beliefs and the cultural practices in her community - and the failure of South African law properly to accommodate such beliefs and practices - resulted in the applicant being denied relief. [15] As a result, the omission of people such as the applicant from the protection provided by the statutes, B violated their rights to equality and was unconstitutional and invalid. The learned Judge held that until such time as Muslim personal law of succession was recognised by the Legislature and regulated in a manner consistent with the values underlying the South African Constitution, there was no justification for the limitation of the equality C rights. [16] Following the approach adopted by this Court in National Coalition, [17] she accordingly 'read-in' words to remedy the defect.

[12] The order of the High Court that is before us for confirmation reads as follows: D

'1.

The omission from s 1(4) of the Intestate Succession Act 81 of 1987 of the following definition is declared to be unconstitutional and invalid: '''spouse' shall include a husband or wife married in accordance with Muslim rites in a de facto monogamous union''.

2.

Section 1(4) of the Intestate Succession Act 81 of 1987 is to be read as though it included the following paragraph after para (f): E

"(g)

'spouse' shall include a husband or wife married in accordance with Muslim rites in a de facto monogamous union.''

3.

The orders in paras 1 and 2 above shall have no effect on the validity of any acts performed in respect of the administration of an intestate estate that has been finally wound up by the date of this order.

4.

The omission from the definition of ''survivor'' in s 1 of the Maintenance of Surviving Spouses Act 27 of 1990 of the words F ''and includes the surviving husband or wife of a de facto monogamous union solemnised in accordance with Muslim rites'' at the end of the existing definition, is declared to be unconstitutional and invalid.

5.

The definition of ''survivor'' in s 1 of the Maintenance of Surviving Spouses Act 27 of 1990 is to be read as if it included the G following words after the words ''dissolved by death'': ''and includes the surviving husband or wife of a de facto monogamous union solemnised in accordance with Muslim...