COLD COMFORT FOR THE PARTIES TO A MUSLIM MARRIAGE - THE SAGA CONTINUES Hassam v Jacobs NO (Muslim Youth Movement of South Africa and Women’s Legal Trust as Amici Curiae [2009] ZACC 19

Razaana Denson Razaana Denson,Glynis Van Der Walt Glynis Van Der Walt

doi:10.17159/obiter.v31i1.12388

Abstract

In Hassam v Jacobs NO (Muslim Youth Movement of South Africa and Women’s Legal Trust as Amici Curiae) ([2009] ZACC 19), the Constitutional Court was faced with an application for the confirmation of constitutional invalidity of section 1(4)(f) of the Intestate Succession Act 81 of 1987 (hereinafter “the ISA”). The application was made pursuant to the decision of the Western Cape High Court, Cape Town in Hassam v Jacobs NO ([2008] 4 All SA 350 (C)), where it was held that the word “spouse” as utilized in the ISA could be extended to include parties in a de facto polygynous Muslim marriage. The impugned provisions of the ISA were held to exclude widows of polygynous Muslim marriages in a discriminatory manner from the protection offered by the ISA. The Western Cape High Court therefore declared section 1(4)(f) of the ISA to be inconsistent with the Constitution as it makes provision for only one spouse in a marriage entered into in accordance with the tenets Muslim rites to be an heir. The decision of Western Cape High Court was referred to the Constitutional Court in terms of section 172(2)(a) of the Constitution of the Republic of South Africa Act, Act 108 of 1996.

Highlights

In Hassam v Jacobs NO (Muslim Youth Movement of South Africa and Women’s Legal Trust as Amici Curiae) ([2009] ZACC 19), the Constitutional Court was faced with an application for the confirmation of constitutional invalidity of section 1(4)(f) of the Intestate Succession Act 81 of 1987
The application was made pursuant to the decision of the Western Cape High Court, Cape Town in Hassam v Jacobs NO ([2008] 4 All SA 350 (C)), where it was held that the word “spouse” as utilized in the ISA could be extended to include parties in a de facto polygynous Muslim marriage
The facts in Hassam v Jacobs NO as it transpired in the Western Cape High Court were as follows: the applicant and the deceased entered into a marriage according to Muslim rites on 3 December 1972

Summary

Introduction

In Hassam v Jacobs NO (Muslim Youth Movement of South Africa and Women’s Legal Trust as Amici Curiae) ([2009] ZACC 19), the Constitutional Court was faced with an application for the confirmation of constitutional invalidity of section 1(4)(f) of the Intestate Succession Act 81 of 1987 (hereinafter “the ISA”). The facts in Hassam v Jacobs NO as it transpired in the Western Cape High Court were as follows: the applicant and the deceased entered into a marriage according to Muslim rites on 3 December 1972. The executor rejected the applicant’s claims, firstly on the ground that it was disputed whether the marriage was still extant at the time of the deceased’s death and, secondly, as the applicant was a party to a de facto polygynous marriage she did not qualify as a “surviving spouse” in terms of the ISA and MSSA (Denson and Van der Walt “Cold Comfort for Parties to a Muslim Marriage Hassam v Jacobs No [2008] 4 All SA 350 (C)” 2009 Obiter 188).

Issues to be decided by the Constitutional

Decision of the Constitutional Court

Discussion