The case concerns the proprietary consequences of a polygamous Muslim marriage within the context of intestate succession.

The applicant, Mrs Fatima Gabie Hassam, 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 on the basis that polygamous Muslim marriages are not legally recognised. She applied to the High Court challenging the validity of certain provisions of the Intestate Succession Act 81 of 1987 (the Act) and the Maintenance of Surviving Spouses Act 27 of 1990 (the MSSA) on the grounds that they unfairly exclude widows in polygamous Muslim marriages from protections 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 Act 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. The High Court further declared that the word “survivor” in the MSSA should be read to include surviving partners of polygamous Muslim marriages. The declaration of invalidity was referred to this Court for confirmation in terms of the Constitution.

In the confirmation proceedings before this Court the applicant contended that the exclusion of widows in polygamous Muslim marriages from the benefits provided for in the Act infringes their constitutional rights to equality, religion and culture. None of the respondents opposed the application. The Muslim Youth Movement and the Women’s Legal Centre Trust were admitted as amici curiae and generally aligned themselves with the submissions of the applicant.

Nkabinde J writing for a unanimous Court confirmed the declaration of constitutional invalidity made by the High Court albeit in a slightly different manner. She held that the objective of the Act, which is to lessen the dependence of widows on family benevolence, would be frustrated if the continued exclusion of widows in polygamous Muslim marriages were to persist. Nkabinde J held further that the Act violates the applicant’s right to equality. The exclusion of women in the position of applicant from the protection of the Act unfairly discriminates against them on the grounds of religion, martial status and gender. This exclusion is not justifiable in a society guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom. In concluding, Nkabinde J held that the word “spouse” in the Act is not reasonably capable of being understood to include more than one spouse in the context of a polygamous marriage. To remedy the defect, the words “or spouses” are to be read-in after each use of the word “spouse” in the Act.