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By Clement Marumoagae

Historically, the South African public policy was crafted on Eurocentric ideals, which regarded everything that was not in line with western and Christian moral values as invalid and unlawful. This resulted in some of the practices of the native people of South Africa (SA), as well as people who follow the Muslim religion being regarded as against public policy. One such practice is polygamy as practiced under customary law or polygyny as observed under Muslim religion. Section 15 of the Constitution provides that ‘[e]veryone has the right to freedom of conscience, religion, thought, belief and opinion’. This entrenches the right of every individual in SA to live according to the customs and traditions prescribed by their religion, which includes the right to observe their religious family law systems (N Moosa ‘Polygynous Muslim marriages in South Africa: Their potential impact on the incidence of HIV/AIDS’ (2009) 3 PER 65 at 71).

While the Constitution recognises the right to religion, Muslim marriages in particular are yet to receive legislative recognition. In other words, there is currently no legislative framework for the regulation of the proprietary consequences of Muslim Marriages in SA. On 21 January 2011, the Muslim Marriages Bill was published in the Government Gazette (Gen37 GG33946/21-1-2001). The Bill emanates from an investigation by the South African Law Reform Commission (the SALRC) on Islamic Marriages and related matters and sets out a draft statutory framework for the legal recognition of Muslim marriages and their consequences. Due to the divergence of views on the envisaged legislation, this Bill is ‘still subject to intense debate in the Muslim community and as such has not yet been passed’ (M Harrington-Johnson ‘Muslim marriages and divorce’ 2015 (May) DR 40). This has proved to be particularly challenging during divorce, not only for women who are parties to Muslim marriages, but also for those whose husbands have passed away. As the law stands, these women can neither obtain a divorce from a civil court nor inherit from their husband’s estate as ‘surviving spouses’ in terms of the laws of intestate or testate succession in SA. This article particularly discusses the right of Muslim women to inherit benefits renounced by their husbands’ descendants in circumstances where they were only married in terms of Islamic personal law and not subsequently married in accordance with civil law. This will be done by critically reflecting on Moosa NO and Others v Harneker and Others 2017 (6) SA 425 (WCC) (Harneker), which was subsequently confirmed by the Constitutional Court (CC) in Moosa NO and Others v Minister of Justice and Others 2018 (5) SA 13 (CC) (Moosa). There is an urgent need for the legislative recognition of Islamic law of succession in a way that conforms with the foundational values of the Constitution. In the absence of any legislative guidelines regarding Muslim marriages and the legal consequences that flow therefrom, South African courts have been progressive by continuously making orders that give effect to some of the obligations arising from Muslim marriages (see L Mbatha, N Moosa and E Bonthuys ‘Culture and religion’ in E Bonthuys and C Albertyn (eds) Gender, Law and Justice (Cape Town: Juta 2007) 158 to 194 and the cases discussed there). For example, the CC in Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) at para 109, declared s 1 of the Intestate Succession Act 81 of 1987 and s 2(1) the Maintenance of Surviving Spouses Act 27 of 1990 unconstitutional and invalid because they omitted from their reach a husband or a wife married in accordance with Muslim rites in a de facto monogamous union. Before these provisions were declared unconstitutional, a party to a Muslim marriage on the death of ‘her’ spouses could neither inherit in ‘her’ spouse’s intestate estate nor lay a claim for reasonable maintenance from such an estate. It is worth noting that in terms of Islamic Law ‘the conclusion of a marriage per se, results in the marriage being automatically out of community of property, with all forms of profit sharing being excluded. This, however, does not prevent the spouses from entering into a contractual arrangement in terms of which they may mutually agree to enter into an acceptable partnership or proprietary arrangement’ (SALRC ‘Islamic marriages and related matters report’ Project 59 (July 2003) at 10). It has been argued that ‘[w]here both parties to a marriage have contributed assets to that marriage, each retains ownership of those assets, both during and on termination of the marriage. The estate is thus considered to be one in which separate assets are mixed but are not merged into one estate’ (S Breslaw ‘Muslim spouses: Are they “equally” married?’ 2013 (Dec) DR 30). This also enables a party to a Muslim marriage during his lifetime to determine through a Will how ‘his’ assets should be distributed among ‘his’ heirs on his death. This can have detrimental repercussions for women whose marriages were not also registered as civil marriages or even as civil unions where on their husbands’ death, the testamentary heirs thereto renounce their inheritances (F Moosa ‘Renunciation of benefits from a will: Who is a “spouse”?’ 2018 (Jan/Feb) DR 28). Section 2C(1) of the Wills Act 7 of 1953 prevents such ‘women’ from inheriting the renounced benefits merely on the basis that they are not recognised as surviving spouses for the purposes of that Act.

The court in Harneker was called on to interpret s 2C(1) of the Wills Act in the context of a polygynous marriage, which provides that ‘[i]f 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’. In this case, the husband was married to two women in accordance with the tenets of Islamic Law, one of whom he subsequently married in terms of the civil law. This subsequent civil marriage was motivated by the desire to qualify for a housing loan, which he could not obtain because the South African legal system did not recognise polygynous Muslim marriages and treated them as a common law crime. He agreed with both of his wives to conclude a civil marriage with the first wife, which enabled him to purchase the marital home, wherein they lived together with all of their children.

The marriage to the second wife was neither registered as a civil marriage, nor was it formalised under the Civil Union Act 17 of 2006. The husband executed a Will wherein he distributed ‘his estate’ between his wives and children. Nonetheless, all his surviving children renounced their benefits due to them under the Will. They agreed in writing that their respective shares should be inherited by their father’s wives in equal shares. The executor of the husband’s deceased estate chose not to follow the Islamic Law with regard to renunciation and relied on s 2C(1) of the Wills Act, wherein he considered both wives ‘to be a “surviving spouse”’ (at para 9). The executor then sought to effect registration of transfer of the deceased’s one-half share of the marital home into the joint names of both wives. The Registrar of Deeds had no difficulty registering the property in the name of the wife who was subsequently married under civil law but refused to register the property under the name of the second wife who was married only under Islamic Law, on the basis that she was not a surviving spouse in terms of the law as it was applied at the time.

The Registrar of Deeds argued that all benefits renounced by the descendants of the deceased born of his marriage to the second wife, should vest in the children of those descendants under s 2C(2) of the Wills Act. The second wife’s argument was that there was a clear unfair discrimination in respect of widows who are both married in accordance with Muslim polygynous marriages wherein the one who was also married in terms of civil law is regarded as ‘a surviving spouse’ whereas the other spouse is not. Basically, the second wife felt that her marriage, which was not subsequently registered in terms of civil law, was regarded as less important than civil marriages and customary marriages which are legally recognised in South Africa. The amicus curie also demonstrated to the court that non-recognition of Muslim marriages prejudices Muslim women and subjects them to ‘many intersecting forms of disadvantage and discrimination’ (Harneker at para 18).

The impact of the Registrar’s interpretation of the phrase ‘surviving spouse’ and the total disregard of the second wife’s Muslim marriage was to effectively deny her the opportunity to inherit the benefits, which her husband’s descendants had renounced. At the same time, the first wife received these benefits merely because her marriage was also registered as a civil marriage. Section 2C(1) of the Wills Act does provide to any of the beneficiaries that possesses the necessary capacity the right to refuse to receive the benefit accorded to them under the Will. Should that happen, this provision mandates that such benefit should be given to the surviving spouse. Linguistically, it cannot be doubted that the legislature was referring to a situation where there was only one marriage at the time of the testator’s death. This effectively excluded forms of marriages, such as where a person at the time of his death married more than one wife. In other words, this provision espouses Eurocentric and Christian value of two heterosexual persons joined together in ‘holy’ matrimony, which is out of touch with modern times wherein different forms of family unions exit. In declaring s 2C(1) of the Wills Act invalid and inconsistent with the Constitution to the extent that it excluded the second wife from its ambit, Le Grange J held that the second wife was ‘directly discriminated against, premised upon her religion and marital status’ (Harneker at para 32). He was of the view that this provision ‘can only be cured by a reading-in of words that the term “surviving spouse” … encompasses in its meaning … every “surviving” husband or wife who was married by Muslim rites to a deceased testator’.

This matter was subsequently taken to the CC for confirmation. Cachalia AJ in a unanimous judgment confirmed and endorsed Le Grange J’s order and reasoning (Moosa at para 12). Nonetheless, Cachalia AJ emphasised the dignity element of this matter by acknowledging that the non-recognition of the second wife’s right ‘to be treated as a “surviving spouse” for the purposes of the Wills Act, and its concomitant denial of her right to inherit from her deceased husband’s will, strikes at the very heart of her marriage of 50 years, her position in her family and her standing in her community. It tells her that her marriage was, and is, not worthy of legal protection. Its effect is to stigmatise her marriage, diminish her self-worth and increase her feeling of vulnerability as a Muslim woman’ (Moosa at para 16). While the right to equality and the need to discourage unfair discrimination is important, I nonetheless, submit that not only the right but the value of dignity makes for a better argument when considering the prejudices that Muslim women in particular experience from the law and certain religious practices, which might not be in line with the Constitution. Their dignity as persons who are worthy of recognition as autonomous beings of all the protections the law has to offer must be respected. They ought not to be dehumanised and put on trial merely because certain laws unjustifiably deny them benefits that are accorded to similarly placed women from other religions and cultures. Such laws do not only unfairly discriminate, they also fundamentally challenge Muslim women’s right to dignity and self-worth. In the Moosa case, in order to restore the dignity of Muslim women who found themselves being discriminated by s 2C(1) of the Wills Act, Cachalia AJ read the following: ‘For purposes of this sub-section, a surviving spouse includes every husband and wife of a de facto monogamous and [polygamous] Muslim marriage solemnised under the religion of Islam’ into this provision (Moosa at para 17).

In conclusion, this judgment entails that every person who has entered into a Muslim marriage irrespective of whether or not such marriage has been subsequently registered in terms of the Marriage Act 25 of 1961, Recognition of Customary Marriages Act 120 of 1998 or Civil Union Act will be regarded as a surviving spouse on the death of the person they are married to in as far as the Wills Act is concerned. It is disappointing, however, that vulnerable Muslim women in relation to their proprietary rights such as maintenance, pension interest and now a right to receive a renounced benefit have to always approach the courts for relief. I submit that there is an urgent need for the legislature to thoroughly engage the Muslim community to understand their differences, in order to pave a way for the legal framework that will enable parties to the Muslim marriages to safeguard their interests when their marriages dissolve either by divorce or death.

Clement Marumoagae LLB LLM (Wits) LLM (NWU) Dip Insolvency Practice (UP) is a legal practitioner at Marumoagae Attorneys and Senior Lecturer at the University of Witwatersrand. Mr Marumoagae is also a Council Member of the Legal Practice Council.

This article was first published in De Rebus in 2019 (April) DR 10.