IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CC CASE NO;
CPD CASE NO:5704/2004
In the matter between:
FATIMA GABIE HASSAM Applicant
And
JOHAN HERMANUS JACOBS N.O 1st Respondent
MASTER OF THE HIGH COURT 2nd Respondent
MARIAM HASSAM 3rd Respondent
MARRIAM HASSAM N.O 4th Respondent
MINISTER OF JUSTICE ANS CONSTITUTIONAL
DEVELOPMENT 5th Respondent
WOMEN'S LEGAL CENTER Amicus Curiae
AFFIDAVIT: LYNN SWARTZ
I, the undersigned,
LYNN SWARTZ
Hereby make oath and say:
1. I am a practicing attorney employed at De Klerk & Van Gend Inc Bardien &
Higgins Attorneys, Claremont. I am the attorney for the Applicant in this matter.
2. The facts stated herein are to the best of my knowledge true and correct. They are within my personal knowledge, save where the context otherwise.
3. I am duly authorized to depose to this affidavit on behalf of the Applicant.
4. The Applicant was married to the deceased in accordance with Muslim Personal Law on 3 December 1972. In and during February 1990, the deceased acquired an immovable property and same served as the matrimonial home until the death of the deceased. In and during the year 2000, the deceased had married a second wife without the Applicant's knowledge or consent. The deceased subsequently died intestate in August 2001.
5. The executor of the estate refused to regard the Applicant as a spouse in terms of the Intestate Succession Act as well as a spouse in terms of the maintenance of Surviving Spouses Act as the executor expressed the view that Applicant's marriage was not lawful as Applicant's marriage had been terminated and that the second wife was the only spouse for purposes of winding up the estate. Applicant on the other hand avered that the marriage had not been terminated as the deceased had not accepted the termination and they had continued to live together as husband and wife as set out in paragraph 4 above.
6. The issue in this application is the proprietary consequences of an Islamic marriage and particularly in the context of Intestate succession.
7. The Applicant's primary complaint is that the Intestate Succession Act as well as the Maintenance of Surviving Spouses Act, discriminates against her because she
was not married in terms of civil law and more particularly because Applicant is one of two wives.
8. The application was not opposed by any Respondent, instead all Respondent's expressed the view that they would abide by the decision of the Court.
9. The application was heard in the Cape High Court on 12 May 2008. On 18 July 2008 Van Reenen J handed down judgment, a copy of which is attached as "A".
10. In that judgment, Van Reenen J declared inconsistent with the Constitution and invalid, certain provisions of:
10.1 the Intestate Succession Act 81 of 1978;
10.2 the Maintenance of surviving spouses Act 27 of 1990.
11. The court ordered in terms of section 172(2)(a) of the Constitution, that it's order was referred to this court for confirmation.
12. The Applicant now applies for confirmation of the order made by the High Court.
The Applicant also seeks the costs of this application.
13. The Applicant requests that the Chief Justice issue directions as to the further proceedings in this case.
_______________________
LYNN SWARTZ
I certify that the above affidavit was signed and sworn to before me on this 9th day of October 2008, by the deponent after she declared that she knew and understood the Contents of the affidavit, that she had no objection to taking the prescribed oath which she regarded as binding on her conscience, after she uttered the words: 'I swear that the contents of this affidavit are true, so help me God".
___________________________
COMMISSIONER OF OATHS
