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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Fatima Gabie Hassam v Johan Hermanus Jacobs N.O, Master of the High Court, Mariam Hassam, Mariam Hassam N.O, Minister of Justice and
Constitutional Development
CCT 83/08 Hearing Date: 19 February 2009
MEDIA SUMMARY
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 19 February 2009 the Constitutional Court will hear an application by Mrs Fatima Gabie Hassam (the applicant) for the confirmation of an order of constitutional invalidity made by the Cape High Court.
The applicant was a party to a polygamous Muslim marriage. Her husband (the deceased) died intestate. She unsuccessfully lodged claims with the executor of the deceased’s estate. The executor refused her claims because he disputed the existence of her marriage with the deceased. She then applied to the High Court challenging the validity of some of the provisions of the Intestate Succession Act (ISA) and the Maintenance of Surviving Spouses Act (MSSA) on the grounds that they unfairly exclude widows in polygamous Muslim marriages from the benefits provided for in those statutes by excluding them from the concepts of “spouse” and
“survivor”.
The High Court declared section 1(4)(f) of the ISA to be inconsistent with the Constitution to the extent that it makes provision for only one spouse in a Muslim marriage to be an heir. It held that the term “spouse” in that Act should be interpreted to include spouses in polygamous Muslim marriages and that the mechanism used to calculate the share of the estate which such spouses are entitled
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must be reformulated to give effect to such spouses’ constitutional rights. The High Court further declared that the word “survivor” in the MSSA should be read to include surviving partners of polygamous Muslim marriages.
In the confirmation proceedings before this Court the applicant contends that the exclusion of widows in polygamous Muslim marriages from the benefits provided for in the ISA and MSSA infringes their constitutional rights to equality, religion and culture. She therefore seeks confirmation of the declaration of constitutional invalidity made by the High Court. The applicant has filed a draft order which she wishes the Constitutional Court to make. The draft order declares section 1 of the ISA to be inconsistent with the Constitution and invalid to the extent that it does not include the surviving partner in a polygamous Muslim marriage and proposes a new construction of the ISA.
The respondents, including the Minister for Justice and Constitutional Development, do not oppose the application. The Muslim Youth Movement and the Women’s Legal Trust Centre have been admitted as amici curiae (friends of the court). They generally align themselves with the submissions of the applicant.
