Section pertaining to “surviving spouse” in Wills Act declared unconstitutional
In a landmark case handed down by the Constitutional Court on Friday 29 June 2018 in the matter of Moosa and Others v Minister of Justice and Correctional Services and Others, Section 2C (1) of the Wills Act 7 of 1953 (“the Wills Act”), was confirmed to be unconstitutional.
The Constitutional Court confirmed the judgment previously handed down by the High Court of South Africa, Western Cape Division, Cape Town. The court a quo was tasked to decide whether the term “surviving spouse” included Osman Harneker’s (“the Deceased”) second wife Farieda Harneker (“second wife”), whom he married under Islamic Law in 1964.
The Deceased married his first wife, Amina Harneker (“first wife”) under Islamic Law in 1957 and then in 1982 under South African Law. The Deceased entered into the marriage in terms of South African Law, in order to obtain a loan to purchase a property, as Muslim marriages were not yet legally recognised in South Africa.
The Deceased subsequently obtained a loan and bought the property. The deed of transfer only reflected the names of the Deceased and his first wife.
The Deceased prepared a will wherein he referred to both marriages and directed that his estate be dissolved in terms of Islamic Law. The Muslim Judicial Council confirmed that this would require his estate to be divided into 1/16 shares to each of his wives, 7/52 to each of his sons and 7/104 to his daughters.
The Executor in the estate confirmed that the children renounced all their benefits due to them under the will and their shares would, therefore, be divided to the deceased’s wives, the “surviving spouse”, as envisaged in terms of Section 2C (1) of the Wills Act.
The section reads as follows:
If any descendant of a testator, excluding a minor or 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 a benefit, such a benefit shall vest in the surviving spouse.
Upon application to register the Deceased’s half share to both wives, the Registrar of Deeds, Cape Town, declined to register the transfer to the Deceased’s second wife, due to its strict interpretation of “surviving spouse”.
The Executor and remaining spouses argued that this interpretation violated the second wife’s right to equality and dignity in terms of sections 9 and 10 of the Constitution, respectively.
The court a quo held that the phrase “surviving spouse” in this section dates back to a pre-constitutional era when it contemplated a partner in a common law monogamous union. It could not be interpreted to include multiple surviving spouses.
The section consequently differentiates between surviving spouses married in terms of the Marriage Act and those solemnised under the tenets of Islamic Law. The court further held that the section inter alia discriminates between surviving spouses in monogamous civil marriages and those in Muslim polygamous marriages.
As a result hereof, the court found that section 2C(1) unfairly discriminates against the second wife by recognising the Deceased’s first wife as a surviving spouse, due to their marriage concluded as a civil union, but excludes the first wife only because the marriage was concluded under Islamic Law.
The High Court consequently held that the section was inconsistent with the Constitution and invalid.
The finding will not affect the validity of estates that have been finally wound up.
The judgment was confirmed by the Constitutional Court, who extended this section to provide for the inclusion of every husband and wife of a monogamous and polygamous Muslim marriage solemnised under the religion of Islam. The Constitutional Court, although requested to do so, did not make a finding as to equal division of property to all surviving spouses, as this would infringe on the principle of freedom of testation.
The declaration of invalidity only operates retrospectively with effect from 27 April 1994, except for instances where transfer of ownership was finalised prior to the date of this order pursuant to section 2C(1) of the Wills Act, unless the property was subject to legal challenge on the same facts.
Read the full judgment:
 2018 ZACC 19
 2017 (6) SA 425 WCC
 25 of 1961