Hassam v Jacobs NO and Others

• Jurisdiction: South Africa
• Citation: 2009 (5) SA 572 (CC)

Hassam v Jacobs NO and Others
2009 (5) SA 572 (CC)

2009 (5) SA p572

Citation	2009 (5) SA 572 (CC)
Case No	CCT 83/2008
Court	Constitutional Court
Judge	Langa CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
Heard	February 19, 2009
Judgment	July 15, 2009
Counsel	WH Trengove SC (with K Pillay) for the applicant.; No appearance for the first to fourth respondents.; SL Shangisa (with P Matshelo) for the fifth respondent.; K Pillay for the first amicus curiae.; G Budlended SC (with S Cowen) for the second amicus curiae.

Flynote : Sleutelwoorde B

Administration of estates — Intestate succession — Heirs — Widows in polygynous Muslim marriages — Exclusion from protection of s 1 of Intestate Succession Act 81 of 1987 unconstitutional — Words 'or spouses' to be read in after word 'spouse' in s 1 of Act — Declaration of invalidity of s 1 confirmed — Form of order prescribing how C s 1 to be implemented set out.

Headnote : Kopnota

The exclusion of widows in polygynous Muslim marriages from the protection of s 1 of the Intestate Succession Act 81 of 1987 is constitutionally unacceptable D because it excludes them simply on the prohibited grounds of religion, gender and marital status. In any event, it would be unjust to grant a widow in a monogamous Muslim marriage the protection offered by the Act and to deny the same protection to a widow or widows of a polygynous Muslim marriage. Discrimination on each of the listed grounds in s 9(3) of the Constitution is presumed to be unfair unless justified. The exclusion of E such widows from the protection of the Act limits their rights under s 9 of the Constitution. The limitation of their equality rights is in the circumstances unjustifiable. (Paragraphs [39] and [42] at 587D and 588B.)

Furthermore, the word 'spouse' as it is used in the Intestate Succession Act is not capable of being understood to include more than one partner to a marriage. The omission of the words 'or spouses' is inconsistent with the F Constitution. Consequently, the words 'or spouses' have to be read into the Act after each use of the word 'spouse'. (Paragraphs [48] and [53] at 590C - 591B and 591I - 592A.)

The court accordingly confirmed an order of the Western Cape High Court declaring s 1of the Intestate Succession Act unconstitutional and ordered that in the application of s 1(1)(c)(i) and 1(4)(f) of the Intestate Succession G Act to the estate of a deceased person who is survived by more than one spouse:

(a)

A child's share in relation to the intestate estate of the deceased shall be calculated by dividing the monetary value of the estate by a number equal to the number of the children of the deceased who have either survived or predeceased such deceased person but are survived by their H descendants, plus the number of spouses who have survived such deceased;

(b)

subject to para (c), each surviving 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 for Justice and Constitutional Development by notice in the Gazette, whichever is I the greater; and

(c)

where the assets in the estate are not sufficient to provide each spouse with the amount fixed by the Minister, the estate shall be equally divided amongst the surviving spouses.

It was also ordered that the declaration of invalidity was to operate retrospectively with effect from 27 April 1994, with the exception that it did not J invalidate any transfer of ownership prior to the date of the order of any

2009 (5) SA p573

property pursuant to the distribution of the residue of an estate, unless it A was established that, when transfer was effected, the transferee was on notice that the property in question was subject to a legal challenge on the grounds upon which the applicant brought the present application. (Paragraph [57] at 593F - 594E.)

Cases Considered

Annotations B

Reported cases

Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA) ([1999] 4 All SA 421): dictum in para [20] applied

Bhe and Others v Magistrate, Khayelitsha and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African C Human Rights Commission and Another v President of Republic of South Africa and Another 2005 (1) SA 580 (CC) (2005 (1) BCLR 1): applied

Brink v Kitshoff NO 1996 (4) SA 197 (CC) (1996 (6) BCLR 752): applied

Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) (2004 (7) BCLR 735): applied

Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489): dictum in para [53] applied D

Hassam v Jacobs NO and Others [2008] 4 All SA 350 (C): order in confirmed but varied

Hoffmann v South African Airways 2001 (1) SA 1 (CC) ((2000) 21 ILJ 2357; 2000 (11) BCLR 1211): applied

Ismail v Ismail 1983 (1) SA 1006 (A): criticised and overruled E

Khan v Khan 2005 (2) SA 272 (T): compared

MEC for Education, KwaZulu-Natal, and Others v Pillay 2008 (1) SA 474 (CC) (2008 (2) BCLR 99): dictum in para [65] applied

Minister of Finance and Another v Van Heerden 2004 (6) SA 121 (CC) (2004 (11) BCLR 1125): dicta in paras [27] and [142] applied

Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and F Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) (2006 (8) BCLR 872): dictum in para [232] applied

Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (1) SA 524 (CC) (2006 (3) BCLR 355): dictum in para [60] applied G

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) (1998 (2) SACR 556; 1998 (12) BCLR 1517): applied

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): referred to

President of the Republic of South Africa and Another v Hugo H 1997 (4) SA 1 (CC) (1997 (1) SACR 567; 1997 (6) BCLR 708): applied

Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) (1997 (6) BCLR 759): applied

S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) (1995 (2) SACR 748; 1995 (12) BCLR 1579; [1996] 1 All SA 11): dictum in para [32] applied

S v Jordan and Others (Sex Worker Education and Advocacy Task Force and I Others as Amici Curiae) 2002 (6) SA 642 (CC) (2002 (2) SACR 499; 2002 (11) BCLR 1117): compared

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665): dicta in paras [9] and [301] - [302] applied

S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793): dictum in para [8] applied J

2009 (5) SA p574

Seedat's Executors v The Master (Natal) 1917 AD 302: overruled A

Van der Merwe v Road Accident Fund and Another (Women's Legal Centre Trust as Amicus Curiae) 2006 (4) SA 230 (CC) (2006 (6) BCLR 682): applied

Van der Merwe and Another v Taylor NO and Others 2008 (1) SA 1 (CC) (2007 (11) BCLR 1167): applied.

Statutes Considered

Statutes B

The Constitution of the Republic of South Africa, 1996, s 9: see Juta's Statutes of South Africa 2008/9 vol 5 at 1-125

The Intestate Succession Act 81 of 1987, s 1: see Juta's Statutes of South Africa 2008/9 vol 1 at 2-43.

Case Information

C Application in terms of s 172(2)(a) of the Constitution for confirmation of an order by the Western Cape High Court declaring s 1(4)(f) of the Intestate Succession Act 81 of 1987 invalid (Van Reenen J) and reported at [2008] 4 All SA 350. The facts appear from the judgment of Nkabinde J.

WH Trengove SC (with K Pillay) for the applicant. D

No appearance for the first to fourth respondents.

SL Shangisa (with P Matshelo) for the fifth respondent.

K Pillay for the first amicus curiae.

G Budlender SC (with S Cowen) for the second amicus curiae).

Cur adv vult. E

Postea (July 15).

Judgment

Nkabinde J:

Introduction F

[1] Before us is an application for confirmation of a declaration of constitutional invalidity of s 1(4)(f) of the Intestate Succession Act [1] (the Act) made by Van Reenen J in the Western Cape High Court, Cape G Town. [2] The declaration has been referred to this court pursuant to s 172(2)(a) of the Constitution. [3] The impugned provisions were found to exclude widows of polygynous [4] marriages celebrated according to the tenets of the Muslim religious faith in a discriminatory manner from the

2009 (5) SA p575

Nkabinde J

protection of the Act. In essence, this case concerns the proprietary A consequences of a polygynous Muslim marriage within the context of intestate succession.

[2] The pertinent parts of the order of the High Court read:

'23.2

It is declared that s 1(4)(f) of the Intestate Succession Act 81 of 1987 is inconsistent with the Constitution, to the extent that it B makes provision for only one spouse in a Muslim marriage to be an heir in the intestate estate of their deceased husband.

23.3

Section 1(4)(f) of the Intestate Succession Act 81 of 1987 is to be read as though the whole of it was substituted by the following:

In the application of s 1(1)(c)(i) to the estate of a C deceased person who is survived by more than one spouse:

(a)

a child's share in relation to the intestate estate of the deceased, shall be calculated by dividing the monetary value of the estate by a number equal to the D number of the children of the deceased who have either survived or predeceased such deceased person but are survived by their descendants, plus the number of spouses who have survived such deceased;

(b)

each surviving spouse shall inherit a child's share of E the intestate estate or so much of...