By Dr Fareed Moosa
From time to time testamentary heirs renounce the benefits conferred by a testator in a last will and testament. When this occurs, s 2C(1) of the Wills Act 7 of 1953 (the Wills Act) may apply. It reads:
‘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 right to receive such benefit, such benefit shall vest in the surviving spouse’ (my italics).
Apart from s 2C(1), the term ‘spouse’ is used in other sections of the Wills Act (for example, s 2B and s 4A(2)). Hence, for purposes of s 2C(1), and the Wills Act read holistically, it is unclear whether ‘spouse’ includes persons married under the tenets of religious law (such as, Shari’ah, Judaism or Hinduism), and whether ‘surviving spouse’ in s 2C(1) includes multiple female spouses who were married to a deceased testator at his death in polygynous marriages. These crisp issues arose in Moosa NO and Others v Harneker and Others 2017 (6) SA 425 (WCC).
The material facts emerge from the judgment of Le Grange J. The deceased testator, married two women, namely, the second and third applicants, by Shari’ah law in 1957 and 1964 respectively. In 1983, and in order to secure finance from a banking institution to purchase land, the deceased married one wife under the civil law of South Africa. By agreement with both wives, the deceased married the second applicant in community of property. The finance raised was then used to purchase land in Athlone where the deceased, until his death in 2014, lived with both wives and certain children of both polygynous marriages. In terms of the deceased’s will, his estate devolved on his heirs in terms of Shari’ah. This meant that both spouses inherited part of his estate in equal shares, and the remainder devolved on the deceased’s children born of his marriages to both wives.
At his death, the common marital home was an asset in the deceased’s estate, which his Executor sought to transfer into the joint names of both wives in accordance with the deceased’s will as read with a Redistribution Agreement concluded by his children born of both marriages. That agreement recorded that the children renounced their testamentary benefits in toto. This triggered the application of s 2C(1) of the Wills Act. The effect hereof is that their inheritance devolved on the deceased’s ‘surviving spouse’. Although s 2C(1) refers to ‘surviving spouse’ in the singular, the Executor accepted both wives as a ‘surviving spouse’. The Executor interpreted s 2C(1) through the prism of the Bill of Rights and took the view that the benefits renounced by the second and third applicant’s children vested in them respectively. This construction of s 2C(1) was endorsed by the Master of the High Court for purposes of the Administration of Estates Act 66 of 1965.
On this basis, the Executor sought, under the Deeds Registries Act 47 of 1937, to transfer to both spouses their respective shares of the immovable property. However, the Registrar of Deeds, Cape Town refused to effect registration. While the Registrar recognised the second applicant as a ‘surviving spouse’ because of her lawful civil marriage to the deceased, it did not recognise the third applicant as such for purposes of s 2C(1), since she was only married to the deceased under the tenets of Shari’ah. In reaching its decision, the Registrar relied on the fact that no court had hitherto interpreted ‘spouse’ or ‘surviving spouse’ for any purpose arising from the Wills Act. It further reasoned that since s 2C(1) was enacted during SA’s pre-constitutional era, it must be presumed that Parliament intended ‘spouse’ therein to bear its common law meaning, namely, persons of the opposite sex who are lawfully married to each other in a strictly monogamous union. The Executor, together with both wives, challenged the validity of the Registrar’s decision on the basis that, inter alia, it was discriminatory against the third applicant thereby violating her right to equal treatment and/or benefit of the law. Also, they contended that the dignity of spouses to Muslim polygynous marriages cannot be less than that of parties to a civil marriage. Le Grange J agreed.
As a point of departure, the court acknowledged that the Wills Act gives no express indication that, in its context, references to ‘spouse’ is intended to be confined to husbands and wives whose marriages are formalised under the Marriage Act 25 of 1961, Recognition of Customary Marriages Act 120 of 1998 or Civil Union Act 17 of 2006. Le Grange J held (at para 23) that since s 2C(1) harks back to the dark days under Apartheid, it must be accepted that Parliament intended the term ‘spouse’ to be informed by the common law concept of marriage applied at that time, namely, monogamous unions. This narrow construction excluded the third applicant. This raised the question whether the exclusion, which the Registrar of Deeds sought to enforce, violated the equality clause of the Bill of Rights (s 9).
Le Grange J, in explaining the process when embarking on an analysis in terms of s 9 of the Constitution, relied, at para 26, on the dictum per Moseneke J (as he then was) in Minister of Finance and Another v Van Heerden 2004 (6) SA 121 (CC) at para 27, namely, that it is ‘incumbent on courts to scrutinise in each equality claim the situation of the complainants in society; their history and vulnerability; the history, nature and purpose of the discriminatory practice and whether it ameliorates or adds to group disadvantage in real life context, in order to determine its fairness or otherwise in the light of the values of our Constitution’.
Le Grange J held, at para 28, that ‘surviving spouse’ in s 2C(1) differentiates between surviving spouses married under the Marriage Act and those married in terms of Shari’ah. This is so because, firstly, whereas s 2C(1) confers benefits on the former group, it does not for the latter. Secondly, s 2C(1) differentiates between a surviving spouse in a monogamous civil marriage and those in a polygynous Muslim marriage. The former group falls within the remit of s 2C(1), the latter not. Thirdly, to the extent that s 2C(1) confers benefits on surviving spouses in polygamous customary marriages by reason of the Recognition of Customary Marriages Act, s 2 C(1) differentiated between surviving spouses in polygamous customary unions and those in polygynous Muslim marriages. Whereas the former group is covered by s 2C(1), the latter not.
Although not every instance of differentiation is tantamount to discrimination (see Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC) at para 23), Le Grange J concluded, at para 29, that the differentiation encompassed by ‘surviving spouse’ in s 2C(1) is patently unfairly discriminatory on the grounds of marital status and religion, which is prohibited by s 9(3) of the Constitution. To this end, the judge emphasised that the discriminatory nature and effect of the term ‘surviving spouse’ is evident on the facts in casu. This is so because, first, the second applicant is included as a ‘surviving spouse’ only by reason of the fact that she married the deceased under a lawful civil marriage and the third applicant is excluded by reason only that she married the deceased testator by Muslim rites only. Secondly, surviving spouse in s 2C(1) includes ‘within its ambit widows and widowers in a monogamous civil marriage and excludes any surviving spouse from a polygynous Muslim marriage (such as the third applicant) and it may also be interpreted to include within its ambit spouses in a lawful and legally recognised polygamous customary marriage, but excludes women in a polygynous Muslim marriage’ (at para 31).
Le Grange J held further that the differentiation encompassed by ‘surviving spouse’ in s 2C(1) bore no rational connection with any legitimate governmental purpose. This is so because the differentiation ‘exists simply because at the time s 2C(1) was enacted, polygynous unions solemnised under the tenets of the Muslim faith was void on the grounds of it being contrary to accepted norms and customs prevailing at the time’ (at para 30). This approach is not sustainable in our society that subscribes to democratic values, social justice, and fundamental rights. See also Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) at para 54. In the light hereof, Le Grange J concluded that the meaning of ‘surviving spouse’ in s 2C(1) was constitutionally offensive insofar as it excludes persons married by Muslim rites and multiple spouses who were married to a deceased testator.
In view of the foregoing, and in accordance with s 172(1)(a) of the Constitution, Le Grange J declared s 2C(1) of the Wills Act to be inconsistent with the Constitution and invalid only to the extent that (i) ‘surviving spouse’ in s 2C(1) excludes persons married by the tenets of Shari’ah, and (ii) ‘surviving spouse’ in s 2C(1) excludes multiple female spouses who were married to a deceased testator under polygynous Muslim marriages. Le Grange J also held that, since the term ‘surviving spouse’ as used in the Wills Act is incapable of being construed in a manner that encompasses multiple female spouses to Muslim marriage, the appropriate just and equitable remedy to cure the constitutional defect is a reading-in. Thus, Le Grange J held that the following words are to be read into s 2C(1) at the end thereof: ‘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’.
In conclusion, the decision in Moosa must be welcomed as it brings into line the meaning of ‘spouse’ under the Wills Act with that in other legislation affecting the laws of intestate succession (such as the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990) (see also, for example, Laubscher NO v Duplan and Others 2017 (2) SA 264 (CC)). Moreover, as pointed out per Le Grange J at para 34, the decision brings about parity and equal treatment of polygynous marriages under our law and will ensure that the same benefit and protection is accorded to women married to the same husband in polygynous marriages under Islamic Law. It bears noting, however, that the orders granted per Le Grange J are suspended pending confirmation by the Constitutional Court.
Dr Fareed Moosa BProc LLB (UWC) LLM (UCT) LLD (UWC) is an attorney and Head of the Department of Mercantile and Labour Law at the University of the Western Cape.
Dr Moosa was the first applicant in the case.
This article was first published in De Rebus in 2018 (Jan/Feb) DR 28.