The word "spouse" as used in the Intestate Succession Act, 1987 includes the surviving partner to a monogamous Muslim marriage, as does the word "survivor" as used in the Maintenance of Surviving Spouses Act, 1990.
In dual opinions written by Justices Albie Sachs and Sandile Ngcobo, a majority of the court held that the Intestate Succession Act, 1987 and Maintenance of Surviving Spouses Act, 1990 must be read to extend such rights. A minority, comprising Justices Dikgang Moseneke and Tholie Madala, disagreed with this approach, arguing that the legislation refers to lawful marriages under the Marriage Act and that the legislation is therefore unconstitutional in its current form.
The ambit of this judgment was restricted to de facto monogamous Muslim marriages; it was extended to polygamous Muslim marriages in Hassam v Jacobs.
Background
Juleiga Daniels's husband died intestate in 1994; the main item in the deceased's estate was the couple's home in Cape Town. Because the couple had been married by Muslim rites, without solemnisation under the Marriage Act, 1961, the Master of the High Court found that Daniels could not inherit the deceased's estate or receive maintenance from it; such a marriage did not qualify her as a "surviving spouse" in terms of the Intestate Succession Act, 1987 and Maintenance of Surviving Spouses Act, 1990.
High Court action
Daniels approached the High Court of South Africa for an order declaring that she was the spouse and survivor of the deceased, or, alternatively, for an order declaring that the Intestate Succession Act and Maintenance of Surviving Spouses Act were unconstitutional to the extent that they discriminated unfairly against Muslim marriages.
On 24 June 2003, Judge Belinda van Heerden of the Cape Provincial Division found that Daniels was not a spouse or survivor for the purposes of the Acts, because her marriage to the deceased was not a valid marriage in South African law. Courts did not recognise Muslim marriages both because they were potentially polygamous and because they were not solemnised under the Marriage Act. However, van Heerden also found that this situation was inconsistent with the Constitution and in particular with Muslim spouses' constitutional right to equality. She therefore granted the alternative relief sought by Daniels and instructed that, until such time as the legislature recognised the Muslim personal law of succession in a manner consistent with the Constitution, certain provisions should be read into the Acts to ensure that their protections extended to "a husband or wife married in accordance with Muslim rites in a de factomonogamous union".
The High Court's order was referred to the Constitutional Court of South Africa for confirmation of the declaration of constitutional invalidity. Anxious that the Constitutional Court would not confirm the order, Daniels also applied in the High Court for leave to appeal should the application for confirmation fail; this application, though unnecessary, led to a second judgment in the Cape High Court, in which Acting Judge Ashley Binns-Ward granted her conditional leave to appeal.
Judgments
Majority judgments
In the Constitutional Court, Justice Albie Sachs held that the word "spouse," in its ordinary meaning, should include parties to a Muslim marriage, because this corresponds to the way the word is generally understood and used, and because it would be far more awkward from a linguistic point of view to exclude Muslim partners than to include them. The historic exclusion in South Africa flowed not from the courts' giving the word its ordinary meaning but from a linguistically-strained usage and from cultural and racial prejudices. Both the intent and the impact of the restrictive interpretation were discriminatory.[1] On this view, it was not necessary to "read in" additional phrases to the legislation, but only to read the relevant provisions according to their natural meaning, on which they were not offensive to the right to equality. The Constitutional Court therefore handed down a declaratory order instructing that the surviving partners to monogamous Muslim marriages qualified as "spouses" for the purposes of the Intestate Succession Act and "survivors" for the purposes of the Maintenance of Surviving Spouses Act. The court intentionally did not deal with the question of polygamous Muslim marriages.
Eight of the justices agreed with this order and with Sachs's opinion. The same group joined in a separate concurring judgment filed by Justice Sandile Ngcobo, which elaborated on how the same conclusion could be reached by means of section 39(2) of the Constitution.
Minority judgment
Justice Dikgang Moseneke filed a dissent, in which Justice Tholie Madala joined; the minority held that the majority's reading of the Acts was "unduly strained", because – as demonstrated in the court's own precedent – the word "spouse" bore no ordinary meaning other than a partner in a legally enforceable marriage, and therefore in a marriage recognised under the Marriage Act. Thus the minority favoured the High Court's approach: because Muslim spouses were excluded from the protections of the Intestate Succession Act and Maintenance of Surviving Spouses Act and because that exclusion was unjustifiably discriminatory, it would uphold the declaration of constitutional invalidity and read in an alternative phrasing. Moseneke added that it would be less offensive to the separation of powers for this unjust exclusion to be addressed through legislative intervention rather than through the "interpretative intervention" launched by the majority.
Tholakele Hope "Tholie" Madala was a judge of the Constitutional Court of South Africa between October 1994 and October 2008. He was appointed to the court by Nelson Mandela upon the court's inception. Before that, he practised as a human rights lawyer in the Transkei, taking silk in 1993, and served briefly in the Mthatha Supreme Court in 1994. He retired from the bench in 2008.
South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. It may be defined as "that subdivision of material private law which researches, describes and regulates the origin, contents and dissolution of all legal relationships between: (i) husband and wife ; (ii) parents, guardians and children; and (iii) relatives related through blood and affinity."
"As far as family law is concerned, we in South Africa have it all. We have every kind of family; extended families, nuclear families, one-parent families, same-sex families, and in relation to each one of these there are controversy, difficulties and cases coming before the courts or due to come before the courts. This is the result of ancient history and recent history [...]. Our families are suffused with history, as family law is suffused with history, culture, belief and personality. For researchers it's a paradise, for judges a purgatory."
Hassam v Jacobs NO and Others, an important case in South African family law and law of succession, was heard in the Constitutional Court of South Africa on 19 February 2009 and decided on 15 July 2009. It concerned the proprietary consequences of polygynous Muslim marriage in the context of intestate succession.
Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; SA Human Rights Commission and Another v President of the RSA and Another was an important case in South African customary law.
Barkhuizen v Napier is an important case in South African contract law. It was heard in the Constitutional Court of South Africa on 4 May 2006 and decided on 4 April 2007. The judges were Chief Justice Pius Langa, Deputy Chief Justice Dikgang Moseneke, and Justices Tholie Madala, Yvonne Mokgoro, Sandile Ngcobo, Bess Nkabinde, Kate O'Regan, Albie Sachs, Thembile Skweyiya, Johann van der Westhuizen, and Zak Yacoob.
Volks NO v Robinson and Others is an important decision in South African family law and law of succession. In a majority judgment written by Justice Thembile Skweyiya, the Constitutional Court of South Africa dismissed a challenge to the constitutionality of the Maintenance of Surviving Spouses Act, 1990. The court held that it is not discriminatory for the Act to exclude the survivors of permanent life partnerships from the protections it extends to the survivors of legal marriages. Married couples are entitled to claim maintenance from their deceased spouse's estate because the institution of marriage creates unique reciprocal duties of support which do not exist between permanent life partners.
Intestate succession in South African law takes place whenever the deceased leaves property which has not been disposed of by valid testamentary instrument. In other words, the law of intestate succession applies only:
References
Cases
Daniels v Campbell NO and Others 2004 (5) SA 331 (CC).
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