Moosa NO and Others v Harneker and Others

• Jurisdiction: South Africa
• Citation: 2017 (6) SA 425 (WCC)

Moosa NO and Others v Harneker and Others
2017 (6) SA 425 (WCC)

2017 (6) SA p425

Citation	2017 (6) SA 425 (WCC)
Case No	400/17
Court	Western Cape Division, Cape Town
Judge	Le Grange J
Heard	September 14, 2017
Judgment	September 14, 2017
Counsel	Dr Fareed Moosa (attorney) for the applicants.; S Samaai (attorney) for the amicus, the Women's Legal Centre.

Flynote : Sleutelwoorde

Constitutional law — Legislation — Validity — Wills Act 7 of 1953, s 2C(1) — Providing that if descendant of testator renounces benefit of will, surviving spouse obtaining benefit — Term 'surviving spouse' not including spouses in monogamous and polygynous Muslim marriages solemnised according C to Islamic law — To such extent, section unconstitutional — Words to be read in such that 'surviving spouse' including 'every husband and wife of de facto monogamous and polygynous Muslim marriages solemnised under the religion of Islam'.

Headnote : Kopnota

In terms of s 2C(1) of the Wills Act 7 of 1953, '(i)f any descendant of a testator, D excluding a minor or a mentally ill descendant, who, together with the surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his right to receive such a benefit, such benefit shall vest in the surviving spouse'.

The term 'surviving spouse' did not include spouses in monogamous and E polygynous Muslim marriages solemnised according to Islamic law. To such extent, s 2C(1) of the Wills Act, in breach of s 9 of the Constitution, was unfairly discriminatory on the grounds of religion and marital status. (See [28], [31] – [35] and [39].)

Appropriate relief in terms of s 172(1)(b) would be to read in the following words at the end of s 2C(1): '. . . For purposes of this sub-section, a F ''surviving spouse'' includes every husband and wife of a de facto monogamous and polygynous Muslim marriage solemnised under the religion of Islam.' (See [36] – [37] and [39].)

Cases cited

Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) (2004 (7) BCLR 735; [2004] ZACC 14): dictum in para [54] applied G

Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC) (2009 (11) BCLR 1148): applied

Ismail v Ismail 1983 (1) SA 1006 (A): referred to

Minister of Finance and Another v Van Heerden 2004 (6) SA 121 (CC) (2004 (11) BCLR 1125; [2004] 12 BLLR 1181; [2004] ZACC 3): H dictum in para [27] applied

Seedat's Executors v The Master 1917 AD 302: referred to.

Legislation cited

The Wills Act 7 of 1953, s 2C(1): see Juta's Statutes of South Africa 2016/17 vol 7 at 2-40. I

Case Information

Dr Fareed Moosa (attorney) for the applicants.

S Samaai (attorney) for the amicus, the Women's Legal Centre.

An unopposed application for an order inter alia declaring s 2C(1) of the Wills Act 7 of 1953 unconstitutional. J

2017 (6) SA p426

Order A

(a)

In terms of s 172(1)(a) of the Constitution, s 2C(1) of the Wills Act is declared inconsistent with the Constitution and invalid only:

(i)

to the extent that, for the purposes of the operation of s 2C(1), the term 'surviving spouse' therein does not include a husband or wife in a marriage that was solemnised under the tenets of B Islam (Shari'ah); and

(ii)

to the extent that, for the purposes of the operation of s 2C(1), the term 'surviving spouse' therein does not include multiple female spouses who were married to a deceased testator under polygynous Muslim marriages.

(b)

C In terms of s 172(1)(b) of the Constitution, it is just and equitable to read s 2C(1) of the Wills Act as including the italicised words:

'If any descendants of a testator, excluding a minor or a mentally ill descendant, who, together with the surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his D right to receive such benefit, such benefit shall vest in the surviving spouse. For purposes of this sub-section, a surviving spouse includes every husband and wife of a de facto monogamous and polygynous Muslim marriage solemnised under the religion of Islam.'

(c)

The twelfth respondent's decision that the third applicant is not a 'surviving spouse' of the late Osman Harneker for purposes of E receiving benefits under s 2C(1) of the Wills Act falls to be reviewed and set aside.

(d)

The third applicant is declared a 'surviving spouse' of the late Osman Harneker in whom benefits vest under s 2C(1) of the Wills Act.

(e)

The Registrar of Deeds, Cape Town, is directed to register transfer F of Erf XXXX, Cape Town, from the estate of the late Osman Harneker into the joint names of second applicant and third applicant.

(f)

None of the orders granted herein shall affect the validity of any act performed in respect of the administration of a testate estate that has been finally wound up under the Administration of Estates Act G 66 of 1965 or any other similar statute by the date of this order.

(g)

The orders in paras (a) – (f) are suspended pending the confirmation thereof by the Constitutional Court in terms of s 15(1)(a) of the Superior Courts Act 10 of 2013.

Judgment

Le Grange J: H

Introduction

[1] In this unopposed application the crisp legal issue for consideration is whether, in view of the equality provisions in terms of s 9 of our Constitution, the provisions of s 2C(1) of the I Wills Act 7 of 1953 (the Wills Act) can be extended to protect surviving spouses in polygynous Muslim marriages.

[2] The applicants are challenging the decision taken by the twelfth respondent refusing to register a portion of Erf XXXX, Cape Town, into the name of the third applicant. The twelfth respondent's refusal is J premised on the meaning of the term 'surviving spouse' as contemplated

2017 (6) SA p427

Le Grange J

in terms of s 2C(1) of the Wills Act. According to the twelfth respondent, A the only recognised surviving spouse of the deceased is the second applicant as they entered into a civil marriage in terms of the Marriages Act 25 of 1961. The twelfth respondent expressed the view that the meaning of a 'surviving spouse' in the Wills Act must be interpreted strictly and, despite being married to the deceased by Muslim rites and B having lived in a polygamous relationship, the third applicant cannot be regarded as a 'surviving spouse' as contemplated in the Wills Act.

The background

[3] The salient background facts underpinning this matter are C uncontroversial. The deceased married the second applicant by Muslim rites on 10 March 1957. The deceased thereafter married the third applicant on 31 May 1964. Both marriages were solemnised by way of a marriage ceremony and took place in accordance with the tenets of Islamic law. The marriage certificates evidencing their solemnisation of the marriages under Islamic law were annexed to the papers filed of record. D

[4] There is no dispute that the deceased, second and third applicants, at all material times, practised the Islamic faith religiously and, at the time of the deceased's death on 9 June 2014, were party to polygynous Muslim marriages. It needs to be mentioned that the second applicant also consented to the deceased's marriage to the third applicant. Nine children were born from both marriages. E

[5] According to the undisputed facts, the deceased in 1982 applied for a home loan from a bank in order to purchase the current family home, Erf XXXX, Cape Town. According to the papers filed of record, in order to qualify for such a loan, the deceased needed to be married lawfully, as at the time under our legal system polygynous Muslim marriages were F not recognised and were still treated as a common-law crime.

[6] In August 1982 the deceased and the second applicant with the consent of the third applicant formalised their marriage under South African law. The said property was purchased and held in the names of the deceased and second applicant under deed of transfer T . . . . Since G then and until his death in 2014, the deceased lived with both wives and some of their children in the family home. The deceased's religious marriage to the third applicant was not formalised under the Civil Union Act 17 of 2006. Upon the deceased's death, it followed that both marriages were terminated. H

[7] The deceased in his Last Will and Testament (the Will), dated 23 January 2011, expressly referred to his marriages to both women. In terms of the Will the deceased directed that his estate should devolve in terms of Islamic law and that a...