The Western Cape High Court in Cape Town declared the 1953 Wills Act inconsistent with the South Africa Constitution, because the statute’s provisions were previously interpreted to recognize only legal marriage and not Muslim marriages.
In the decision, delivered on September 14, 2017, Judge Andre Le Grange found that the term “surviving spouse” in Section 2C(1) of the Wills Act, which governed the persons entitled to benefits under a will, discriminated against Muslims. Previously, the term “surviving spouse” had been interpreted to apply only to spouses whose marriages were recognized under the Marriages Act 25 of 1961 and the Civil Union Act 17 of 2006, which did not recognize polygamous marriages or marriages that were solemnized under the tenets of Islamic law.
Judge Le Grange determined that such an understanding of the term “surviving spouse” violated Section 9 of the South Africa Constitution, which specifies that the “state may not unfairly discriminate” against a person on a number of grounds, including their religion.
In order to extend constitutional protections to Muslims marriages, Judge Le Grange found that the Wills Act should be read to include spouses in Muslim marriages, regardless of whether their marriage was monogamous or polygamous. According to Judge Le Grange: “The defect, in my view, can only be cured by a reading-in of words that the term ‘surviving spouse’ in section 2C(1) of the Wills Act encompasses in its meaning not only a surviving spouse in the legal sense but also every ‘surviving’ husband or wife who was married by Muslim rites to a deceased testator contemplated by section 2C(1), irrespective whether such marriage was de facto monogamous or polygynous.”
The case was brought by two widows, Amina and Farieda Harnaker, following the death of their husband, Osman Harnaker. Although Osman’s will left the family home to both Amina and Farieda, whom he had married in accordance with Islamic law, the Deeds Office refused to register a portion of the home in each of their names because their marriage was polygamous.
Judge Le Grange ordered that both Amina and Farieda be declared a “surviving spouse” and that the Deeds Office listed both women as a joint owner of the Cape Town home.