In this recent (29 June 2018) judgement, the Constitutional Court upheld a Cape High Court decision from September 2017 that section 2C(1) if the Wills Act, 7 of 1953, is unconstitutional to the extent that it discriminates against surviving spouses in a monogamous or polygynous Islamic marriage.
This section reads as follows:
2C. Surviving spouse and descendants of certain persons entitled to benefits in terms of will.— (1) If any descendants of a testator, excluding a minor or a mentally ill descendant, who, together with the surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his right to receive such benefit, such benefit shall vest in the surviving spouse.
The deceased in this case married twice under Islamic rites, in 1957 and 1964. When he wanted to buy a house in the early 1980’s, the bank required proof of his marriage in order for him to qualify for a bond. With the consent of the second wife, he entered into a legal marriage under the Marriage Act of 1961 with the first wife for this purpose. After his death in June 2014, his sons and daughters from both Islamic marriages renounced their inheritances on the understanding that their renounced portions would accrue to both spouses in equal portions under the provisions of sec 2C(1).
When the executor attempted to transfer the family home to both spouses on this basis, the Registrar of Deeds in Cape Town refused to effect transfer to the spouse who was married only under Islamic rites. The Registrar’s view was that section 2C(1) has to be interpreted strictly to include only a surviving spouse in a legal marriage or union under the Marriage Act, 1961, or the Civil Union Act, 2007.
The executor and both spouses approached the Cape High Court in an unopposed application for an order that section 2C(1) is unconstitutional in that it discriminates against surviving spouses in Islamic marriages on the basis of religion and marital status, contrary to the provisions of section 9(3) of the Constitution. The High Court found that the Registrar’s interpretation of section 2C(1) is indeed a correct reflection of the legislature’s intention at the time of the promulgation of the section in 1992, but that it discriminates unfairly as argued by the executor and the spouses. The High Court gave the order requested and ordered that the provisions of section 2C(1) should be read as if the italicised part is inserted:
2C. Surviving spouse and descendants of certain persons entitled to benefits in terms of will.— (1) If any descendants of a testator, excluding a minor or a mentally ill descendant, who, together with the surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his right to receive such benefit, such benefit shall vest in the surviving spouse. For purposes of this sub-section, a ‘surviving spouse’ includes every husband and wife of a de facto monogamous and polygynous Muslim marriage solemnised under the religion of Islam.
It is this finding of unconstitutionality that the Constitutional Court now upheld.