Moosa and Others v Minister of Justice and Correctional Services and Others [2018] ZACC 19 (29 June 2018)

/ / News, 2018, Customary Marriage, Family Law


On 14 September 2017, the High Court of South Africa, Western Cape Division, delivered a judgment in which it declared section 2C(1) of the Wills Act 7 of 1953 (hereinafter “the Wills Act”) constitutionally invalid due to its failure to recognise the rights of a spouse married by Muslim rites in a polygamous marriage to benefit in terms of his/her late spouse’s Will. The matter was therefore brought on application to the Constitutional Court in terms of rule 16(4) of the Constitutional Court Rules for confirmation of the above order of the High Court.

The facts giving rise to the litigation in this matter are as follows.  The deceased married Amina Harneker (“the second applicant”) in 1957 and Farieda Harneker (“the third applicant”) in 1964. Both marriages were concluded under the tenets of Islamic law. Following the deceased’s marriages, he applied for a bank loan to fund the purchase of their familial home. However, due to the fact that Muslim marriages were not legally recognised, the deceased was advised to formalise his marriage to the second applicant in order to secure said loan. The deceased did so, with the consent of the third applicant. The deed of transfer therefore reflected the names of the deceased and the second applicant.

Subsequent to the purchase of the house, the deceased resided therein with both his wives and children, until his death in 2014.  The deceased’s Last Will and Testament provided instructions to distribute his estate in accordance with Islamic Law and to the benefit of both spouses and the children born of the respective marital unions. Mr Fareed Moosa (hereinafter “the first applicant”), in his capacity as executor of the deceased’s estate, confirmed that the deceased’s children renounced all benefits due to them in terms of the Will.

In the event of a deceased’s descendant(s) renouncing his/her right to a benefit due to him/her in terms of a Will, section 2C(1) of the Wills Act states that “such benefit shall vest in the surviving spouse.” In light of the aforementioned, the first applicant regarded both wives as surviving spouses and, thus, entitled to share in the renounced benefits on an equal basis. The first applicant lodged a liquidation and distribution account with the Master of the High Court.

Further to the above, the executor then sought to register the deceased’s half-share in the familial home, inclusive of the portion renounced by his descendants born of the marriage, in the second applicant’s name; a request with which the Registrar of Deeds, Cape Town (“the third respondent”), duly complied. However, the third respondent declined to do the same for the third applicant as the third applicant’s Islamic marriage was not legally recognised under the laws of the Republic and, therefore, she could not (in the third respondent’s view) be regarded as a “surviving spouse” in terms of the Wills Act. Relying on section 2C(2), the third respondent stated that the benefits renounced by the deceased’s descendants born of his marriage to the third applicant therefore vest in the children (or any other descendants) of those descendants, as opposed to the third applicant. The third respondent’s rationale was that the term “surviving spouse” in section 2C(1) should be strictly interpreted to protect spouses formally recognised under the laws of South Africa.

The applicants in the Court a quo contended that the meaning of “surviving spouse”, when applied solely to monogamous unions, violated the third applicant’s right to equality as enshrined in the Constitution. The High Court agreed with this conclusion and endorsed the applicant’s contention that section 2C(1) unfairly discriminated against the third applicant by only recognising the second applicant as a “surviving spouse” by virtue of her civil union to the deceased.

As such, the High Court held, inter alia, that the phrase “surviving spouse”, as utilised in section 2(C)(1), was formulated during a pre-constitutional era and, therefore, cannot be interpreted to include an individual who is party to a polygamous relationship. Ultimately, the High Court ruled that the term “surviving spouse”, as applied in section 2(C)(1), discriminated against the third applicant based on her religion and marital status, constituting an infringement on the third applicant’s right to equality; a finding which the Constitutional Court sanctioned.


In conclusion, the Constitutional Court upheld the High Court’s findings and reiterated that the third respondent’s refusal to regard the third applicant as a “surviving spouse” in terms of the Wills Act constituted unfair discrimination. This led to the declaration of constitutional invalidity of section 2C(1) of the Wills Act. Section 2C(1) will now be read in tandem with the definition of the term “surviving spouse” so as to include “every husband and wife of a monogamous and polygamous Muslim marriage solemnised under the religion of Islam.” The declaration of invalidity is to operate retrospectively with effect from 27 April 1994 and will not invalidate any transfer of ownership that was finalised prior to the date of the order.


All spouses of a polygamous Muslim marriage are now recognised as a “surviving spouse” in terms of the Wills Act.

Written by Divina Naidoo and supervised by Jarryd Spargo, 17 July 2018

Share Article: