Daniels v Campbell NO and Others

• Jurisdiction: South Africa

Daniels v Campbell NO and Others
2004 (5) SA 331 (CC)

2004 (5) SA p331

Citation	2004 (5) SA 331 (CC)
Case No	CCT 40/03
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
Heard	November 6, 2003
Judgment	March 11, 2004
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.

Flynote : Sleutelwoorde B

Constitutional practice — Courts — Constitutional Court — Appeal to against declaration of constitutional invalidity of statutory provision in terms of s 172(2)(a) of Constitution of the Republic of South Africa Act 108 of 1996 — Appeal available as of right in terms of s 172(2)(d) and not requiring leave of Court making declaration. C

Constitutional law — Legislation — Validity of — Intestate Succession Act 81 of 1987, s 1 — Persons married according to Muslim rites not specifically included as 'spouses' — Act to be interpreted to include party to monogamous Muslim marriage as 'spouse' — So interpreted, Act not un- constitutional — Order of High Court declaring provision in question unconstitutional set aside but declaration made D indicating to all interested parties that applicant was 'spouse'.

Constitutional law — Legislation — Validity of — Maintenance of Surviving Spouses Act 27 of 1990, s 1 — Persons married according to Muslim rites not specifically included as surviving 'spouses' — Act to be interpreted to include party to monogamous Muslim marriage as 'spouse' — So interpreted, Act not E unconstitutional — Order of High Court declaring provision in question unconstitutional set aside but declaration made indicating to all interested parties that applicant was 'spouse'.

Administration of estates — Intestate succession — Intestate Succession Act 81 of 1987 — Definition of word 'spouse' — Word 'spouse' in its ordinary meaning including parties to Muslim F marriage — Act to be interpreted to include party to monogamous Muslim marriage as spouse.

Administration of estates — Claim against deceased estate — Maintenance of Surviving Spouses Act 27 of 1990 — Definition of word 'survivor' — Considered with reference to word 'spouse' — Word 'spouse' in its ordinary G

2004 (5) SA p332

meaning including parties to Muslim marriage — Act to be interpreted to include party to monogamous Muslim marriage as survivor. A

Headnote : Kopnota

The matter before the Court concerned an application for confirmation of an order made by the Cape High Court declaring certain provisions of the Intestate Succession Act 81 of 1987 (the Intestate Succession Act) and the Maintenance of Surviving Spouses Act 27 of 1990 (the Maintenance Act) unconstitutional and invalid for failing to B include persons married according to Muslim rites as spouses for the purposes of the stated Acts. The High Court had concluded that the applicant in the matter before it was not a 'spouse' or 'survivor' for the purposes of the stated Acts because her marriage to her deceased husband was not recognised as a valid marriage in terms of South African law. In arriving at this decision, the learned Judge in C the High Court had considered herself bound by the decisions of the Constitutional Court in the matters of National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39) (National Coalition) and Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) (2002 (9) BCLR 986) (Satchwell). She concluded that these cases made it clear D that the term 'spouse' applied only to parties to a marriage recognised as valid in terms of South African law. The Judge further considered the existence of a number of statutes where express provision for the inclusion of the parties to a Muslim union had been made. She reasoned that by explicitly creating exceptions to the general rule that only marriages solemnised in accordance with the provisions of the Marriage Act 25 of 1961 have legal consequences, E these statutes supported the view that in the absence of any such deeming or interpretative provision, the word 'spouse' had to be given what she termed its 'traditional, limited meaning'. The High Court concluded that the amendments necessary to provide a broader meaning to the term 'spouse' lay in the hands of the Legislature.

Held (per Sachs J, Chaskalson CJ, Langa DCJ, Ackermann J, Mokgoro J, Ngcobo J, O'Regan J and Yacoob J F concurring, Moseneke J and Madala J dissenting) that an appeal to the Constitutional Court against a declaration of constitutional invalidity made by a competent Court under s 172(2)(a) of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) lay as of right and did not require leave of the court making the declaration or of the Constitutional Court itself. (Paragraph [14] at 340C.) G

Held, further, that the word 'spouse' in its ordinary meaning included parties to a Muslim marriage. Such a reading was not linguistically strained but corresponded to the way the word was generally understood and used. It was far more awkward from a linguistic point of view to exclude parties to a Muslim marriage from the word 'spouse' than to include them. Such historic exclusion did not flow from the courts giving the word its ordinary meaning but from H a linguistically strained use of the word flowing from a particular cultural and racial approach. The interpretation owed more to prejudice than it did to the English language and both the impact and the intent of the restricted interpretation was discriminatory. (Paragraph [19] at 341E - 342B.)

Held, further, that discriminatory interpretations were no longer sustainable in the light of the Constitution. In the present matter the constitutional values of equality, tolerance and respect for I diversity pointed strongly in favour of giving the word 'spouse' a broad and inclusive construction, more so because it corresponds with the ordinary meaning of the word. A contextual analysis of the manner in which the word 'spouse' is used in the two statutes dealt with by the High Court reinforced the justification for this approach. The purpose of the statutes was to provide relief for a vulnerable section of J

2004 (5) SA p333

the population, ie widows. There was no reason why the equitable principles underlying the statutes should not apply in the A case of Muslim widows as they do in widows whose marriages had been solemnised in terms of the Marriage Act. The purpose of the Acts would be frustrated should widows be excluded from protection just because the legal form of their marriage happened to accord with Muslim tradition rather than the Marriage Act. (Paragraphs [20], [21], [22] and [23] at 342C/D, 343C, 343D - E and 344D - E.) D

Held, further, that the central question in the instant matter was not whether the applicant was lawfully married to the deceased but whether the protection which the relevant Act intended widows to enjoy should be withheld from relationships such as the applicant's. It must be considered whether common sense and justice and the values of the Constitution would best be served by including or C excluding the applicant from the protection provided. The answer had to be in favour of the interpretation that was consistent with the ordinary meaning of the word 'spouse', aligned itself with the spirit of the Constitution and furthered the objectives of the relevant Acts. (Paragraph [25] at 345C/D - E.)

Held, further, that it was important to underline the limited effect of an inclusive interpretation. It limited a D discriminatory application of particular statutes without implying a general recognition of the consequences of Muslim marriages for other purposes. The fact that many statutes adopted in recent times dealing with married persons expressly included parties to Muslim unions under their provisions was indicative of a new approach consistent with constitutional values. The existence of such provisions in other statutes did not imply that their absence in the Acts being considered E in this matter had any special significance. (Paragraphs [26] and [27] at 345F and 345H - 346A.)

Held, further, that the fact that permanent same-sex partnerships could not be included in the term 'spouse' affected the manner in which the resulting discriminatory impact of the relevant statutes were remedied in National Coalition and Satchwell. Once it was established that members of permanent F same-sex partnerships, although not classified as married people, merited the same recognition as accorded by the law to married persons, the indicated remedy was to declare the unconstitutionality and read-in a provision to cure the defect. The recognition of the right to equality and dignity in those matters was not achieved by means of imposing undue strain on the word 'spouse' but by pointing to the constitutionally unacceptable manner in which the statutes failed to G treat them on par with married people. The under-inclusiveness in regard to these people were cured by adding to the category of entitlement so as to avoid unconstitutionality. In the present matter the potential under-inclusiveness and consequent discriminatory impact was avoided simply by correcting the interpretation. It was accordingly not necessary to follow the process which the High Court had, ie H making a declaration of invalidity coupled with a curative remedial reading-in. (Paragraph [34] at 348G/H - 349B.)

Held, accordingly, that the relevant Acts were to be interpreted so as to include a party to a monogamous Muslim...