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South Africa's Constitutional Court Protects Widows In Polygamous Muslim Marriages

By Howard M. Friedman

On Wednesday, South Africa's Constitutional Court held that all the wives in a polygamous Muslim marriage are entitled to claim a share of their husband's property when the husband dies without leaving a will. In Hassam v. Jacobs NO, (So. Afr. Const. Ct., July 15, 2009), the court was reviewing a lower court decision holding that section 1(4)(f) of the Intestate Succession Act was inconsistent with the Constitution to the extent that it makes provision for only one spouse in a Muslim marriage to be an heir. As described by a Media Summary released by the Court:

Nkabinde J writing for a unanimous Court confirmed the declaration of constitutional invalidity made by the High Court albeit in a slightly different manner. She held that the objective of the Act, which is to lessen the dependence of widows on family benevolence, would be frustrated if the continued exclusion of widows in polygynous Muslim marriages were to persist. Nkabinde J held further that the Act violates the applicant?s right to equality. The exclusion of women in the position of applicant from the protection of the Act unfairly discriminates against them on the grounds of religion, martial status and gender. This exclusion is not justifiable in a society guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom.

In concluding, Nkabinde J held that the word "spouse" in the Act is not reasonably capable of being understood to include more than one spouse in the context of a polygynous marriage. To remedy the defect, the words "or spouses" are to be read-in after each use of the word "spouse" in the Act.

South Africa's Business Day reported on the decision.

Full post as published by Religion Clause on July 17, 2009 (boomark / email).