ConCourt confirms High Court ruling on polygamous Muslim unions

2018-06-29 18:22
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The Constitutional Court confirmed a Western Cape High Court finding that the Wills Act is inconsistent with the Constitution and invalid.

The unanimous judgment was delivered on Friday.  

The High Court previously declared a section of the act "unconstitutional for its omission to recognise the right of a surviving spouse in a polygamous Muslim marriage to the benefits of her deceased husband's will".  

According to the judgment, the late Osman Harneker was married to Amina and Farieda Harneker under the tenets of Islamic law and the family had nine children.

"For the purpose of securing a bank loan, and with the consent of the third applicant (Farieda), the deed of transfer for the family home reflected only the names of the deceased and the second applicant (Amina), with whom his marriage was legally formalised.

"The family lived together in the property from that time until the deceased passed away in 2014. 

The deceased's will referred to both wives and his children. However, all the children renounced the benefits due to them in the will.

"Dr Fareed Moosa, executor of the deceased estate, therefore specified that the children’s shares be distributed equally between the second and third applicants, as the deceased’s 'surviving spouses' in accordance with Section 2C (1) of the Wills Act.

However, when Moosa sought to register the deceased's half share in the family property, the deeds registrar approved the registration for Amina, but declined to do so for Farieda.

The registrar did so on the basis that the term "surviving spouse" in the Wills Act only covered spouses recognised formally under South African law.

"The court endorsed the reasoning of the High Court on the equality challenge fully and held that the impugned provision fundamentally violated the third applicant's right to dignity.

"Its effect is to stigmatise her marriage, diminish her self-worth and exacerbate her feeling of vulnerability as a Muslim woman," the court said.

"The court held that this vulnerability is compounded because there is at present no legislation that recognises or regulates the consequences of Muslim marriage."

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