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de facto monogamous marriage; that it was contracted according to the tenets of a major religion; and that it involved “a very public ceremony, special formalities and onerous obligations for both parents in terms of the relevant rules of Islamic law applicable”. The insistence that the duty of support which such a serious de facto monogamous marriage imposes on the husband is not worthy of protection can only be justified on the basis that the only duty of support which the law will protect in such circumstances is a duty flowing from a marriage solemnised and recognised by one faith or philosophy to the exclusion of others. This is an untenable basis for the determination of the boni mores of the society. It is inconsistent with the new ethos of tolerance, pluralism and religious freedom which had consolidated itself in the community even before the formal adoption of the interim Constitution on 22 December 1993…

[23] I have no doubt that the boni mores of the community at the time when the cause of action arose in the present proceedings would not support a conclusion which denies a duty of support arising from a de facto monogamous marriage solemnly entered into in accordance with the Muslim faith any recognition in the common law for the purposes of the dependant’s action; but which affords to the same duty of support arising from a similarly solemnised marriage in accordance with the Christian faith full recognition in the same common law for the same purpose; and which even affords to polygamous marriages solemnised in accordance with African customary law exactly the same protection for the same purpose (by virtue of the provisions of s 31 of the Black Law Amendment Act 76 of 1963, which reverses the consequences of the Fondo judgment [Suid-Afrikaanse Nasionale Trust en Assuransie Maatskappy Bpk v Fondo 1960 (2) SA 467 (A)] in respect of customary marriages). The inequality, arbitrariness, intolerance and inequity inherent in such a conclusion would be inconsistent with the new ethos which prevailed on 25 July 1993 when the cause of action in the present matter commenced...

[25] …For the purposes of the dependent’s action the decisive issue is not whether the dependant concerned was or was not lawfully married to the deceased, but whether or not the deceased was under a legal duty to support the dependant in a relationship which deserved recognition and protection at common law. If the marriage between the dependant and the deceased was a valid marriage in terms of the civil law, she would of course have the right to pursue a dependant’s claim based on the duty of the deceased to support her, but it does not follow that, if she were not so married, she should have no such right. On the analysis I have previously made she would indeed have such a right even if she was not validly married to the deceased in the civil law if the deceased was under a legally enforceable contractual duty to support her following upon a de facto monogamous marriage in accordance with a recognised and accepted faith such as Islam.
(For critical discussion of the judgment of Mahomed CJ in the Amod case, see inter alia Goldblatt ‘Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA)(2000) 16 SAJHR 138; Bonthuys ‘The South African Bill of Rights and the Development of Family Law’ (2002) 119 SALJ 748 at 762-763; Sinclair ‘Embracing New Family Forms, Entrenching Outmoded Stereotypes: Building the Rainbow Nation’, unpublished paper presented at the International Society of Family Law 11th World Conference Family Law and Human Rights August 2002, Copenhagen/Oslo at pages 22-24.)
While the articulation, in the Ryland and Amod cases, of the changes in the boni mores of South African society in a post-constitutional era in respect of marriages by Muslim rites may well be relevant in the determination of the applicant’s (alternative) reliance on the unconstitutionality of the Intestate Succession Act and the Maintenance of Surviving Spouses Act, neither case ‘address[ed] the persistent invalidity of Muslim… marriages (see Van Heerden et al op cit 167-168), or dealt in any way with the meaning to be given to the word ‘spouse’ in South African legislation. Indeed, in the Amod case, the Supreme Court of Appeal emphasised (at para [27]) that its recognition of a legal duty of support as a contractual incident of a Muslim marriage for the purposes of the dependant’s action would not lead ‘to a recognition of possibly other incidents of such a marriage which have neither been articulated or properly analysed in the present appeal … It is perfectly possible to recognise one incident of such a marriage for a special purpose without necessarily recognising any other incident of such marriage for that purpose or any other purpose’.
In support of the proposition that, on an ordinary interpretation, the word ‘spouse’ in the Intestate Succession Act and in the Maintenance of Surviving Spouses Act would include a person in the position of the applicant, applicant’s counsel also relied on various recently enacted or amended statutes which expressly recognise Muslim marriages and other religious marriages for the purposes of conferring certain rights on the parties to such marriages. In this regard, reference was made to, inter alia, the following statutory provisions:

  • In terms of section 10(1) of the Civil Proceedings Evidence Act 35 of 1965, neither a husband nor a wife may be compelled, in civil proceedings, to disclose any communication made to him or her by the other spouse during the existence of the marriage. Section 10A of the Act, which was inserted by section 4 of the Justice Laws Rationalisation Act 18 of 1996 (with effect from 1 April 1997), provides that ‘any customary marriage or customary union, concluded under the indigenous law and custom of any of the indigenous peoples of the Republic of South Africa or any marriage concluded under any system of religious law, shall be regarded as a valid marriage for the purposes of the law of evidence’.

  • In terms of section 195(2) of the Criminal Procedure Act 51 of 1977, as substituted by section 4 of Act 18 of 1996 (with effect from 1 April 1997), the word ‘ marriage’, for the purposes for the law of evidence in criminal proceedings (and in particular, in the context of section 195, for the purposes of the compellability of one spouse as a witness for the prosecution in criminal proceedings against the other spouse) is expressly defined to include ‘ a customary marriage or customary union concluded under the indigenous law and custom of any of the indigenous peoples of the Republic of South Africa or any marriage concluded under any system of religious law’.

  • In terms of section 1 of the Government Employees Pension Law 1996 (Proclamation No. 21 of 1996) (date of commencement 1 May 1996), the word ‘dependant’ is defined, in relation to a member or a pensioner, as including ‘(b) any person in respect of whom the member or pensioner is not legally liable for maintenance, if such a person – (i) … ; (ii) is the spouse of a member of pensioner, including a party to a customary union according to indigenous law and custom, or to a union recognised as a marriage under the tenets of any religion’. Similarly, item 1.19 of Schedule 1 to the Government Employees Pension Law defines ‘spouse’ as meaning ‘a person who can provide proof to the satisfaction of the Board of Trustees that he or she was the lawful husband or wife of a member or pensioner at the time of that member’s or pensioner’s death, or, if he or she was not the lawful husband or wife of that member or pensioner, that he or she was the spouse of that member of pensioner according to indigenous law or custom or the tenets of any Asiatic religion’.

  • In terms of section 1(d) of the Taxation Laws Amendment Act 5 of 2001 (date of commencement 20 June 2001), the following definition of ‘spouse’ was inserted into section 1 of the Transfer Duty Act 40 of 1949:

‘”Spouse” in relation to any person, means the partner of such person

  1. in a marriage or customary union recognised in terms of the laws of the Republic;

  2. in a union recognised as a marriage in accordance with the tenets of any religion; or

  3. in a same-sex or heterosexual union which the Commissioner is satisfied is intended to be permanent;

provided that a marriage or union contemplated in paragraph (b) or (c) shall, in the absence of proof to the contrary, be deemed to be a marriage or union without community of property.
One of the consequences of this new definition is that the exemption from transfer duty of property acquired by ‘a surviving spouse … in any manner from the estate of the deceased spouse’ (section 9(1)(f)) now also applies to property inherited by the surviving spouse from a deceased spouse to whom he or she was married by Muslim rites. Similarly, with effect from 27 April 1994, a definition of ‘spouse’ was inserted into section 1 of the Estate Duty Act 45 of 1955 by section 1(1) of the Revenue Laws Amendment Act 59 of 2000. The definition of ‘spouse’ included, in relation to any deceased person, ‘a person who at the time of death of such deceased person was the partner of such a person – (a) in a marriage recognised in terms of the Laws of the Republic; (b) in a marriage entered into in accordance with any system of religious law which is recognised in the Republic; or (c) in a permanent same-sex life relationship’.
This definition of ‘spouse’ was subsequently amended by sections 1(a) and (b) of the Taxation Laws Amendment Act 5 of 2001 (with effect from 20 June 2001) so that it is now, in all material respects, virtually identical to the definition of ‘spouse’ inserted into the Transfer Duty Act by section 1(d) of Act 5 of 2001 (as cited in full above). One of the consequences of these amendments to the Estate Duty Act is that, with effect from 27 April 1994 (when the interim Constitution came into operation), property included in a deceased estate which accrues to the surviving spouse who was married to the deceased by Muslim rites is exempted from the payment of estate duty (see section 4(ii)).
Mention could also be made of the definition of ‘marriage’ inserted into section 1 of the Child Care Act 74 of 1983 by section 1(d) of the Child Care Amendment Act 96 of 1996 (with effect from 1 April 1998). For the purposes of the Child Care Act, ‘marriage’ is now defined as meaning ‘any marriage which is recognised in terms of South African law or customary law, or which was concluded in accordance with a system of religious law subject to specified procedures, and any reference to a husband, wife, widower, widow, divorced person, married person or spouse shall be construed accordingly’. (The emphasis in all of the statutory provisions cited above is my own.)
There are other examples of statutes or amendments to statutes in terms of which words such as ‘marriage’, ‘spouse’ and ‘dependant’ are expressly defined so as to include, inter alia, marriages by Muslim rites and other religious marriages for specified purposes. Some of these were referred to by the applicant’s counsel, others not.
The argument advanced by counsel for the applicant in this regard was that these legislative enactments and amendments, seen together with the shift in South African public policy in respect of the recognition of certain incidents of Muslim marriages (as articulated in cases such as Ryland and Amod (supra)), indicate that there is no longer any legal basis upon which to ‘strain’ the ‘ordinary’ meaning of ‘spouse’ in the Intestate Succession Act and the Maintenance of Surviving Spouses Act so as to interpret ‘spouse’ as excluding Muslim husbands and wives.
In my view, however, counsel’s reliance upon these legislative enactments and amendments in support of this proposition is misplaced. Neither the Intestate Succession Act, nor the Maintenance of Surviving Spouses Act, contains any interpretative provisions along the lines of those discussed above. Far from supporting the argument that, on ordinary principles of statutory interpretation, the word ‘spouse’ in either of these two Acts includes any person other than a party to a marriage recognised as valid in South African law, the deeming and interpretative provisions referred to in fact point in the opposite direction. By explicitly creating exceptions to the general rule that the only marriages to which legal consequences are attached in South African law are marriages solemnised in accordance with the provisions of the Marriage Act 25 of 1961 and, as such, recognised as valid marriages in this country, the said statutory provisions provide support for the view that, in the absence of any such deeming or interpretative provision, the word ‘spouse’ in a statute must be given its ‘traditional, limited meaning.
There is another important component to that part of the applicant’s case which is based upon the interpretation of the word ‘spouse’ in the relevant Acts. It relies upon the ‘new’ method of interpreting statutory provisions ushered in by the enactment of first the interim Constitution and, later, of the Constitution of the Republic of South Africa Act 108 of 1996. Counsel for both sides were in agreement that, because any rights which the applicant may have in respect of the estate of the deceased vested upon his death on 27 November 1994, at a time when the interim Constitution was in operation, it is the interim Constitution which is applicable when determining whether the relevant statutory provisions may legitimately be interpreted in such a way as to conform to the Bill of Rights in that Constitution (ie Chapter 3 of Act 200 of 1993).
Section 35(3) of the interim Constitution provides that ‘in the interpretation of any law and the application and development of the common law and customary law, a court shall have due regard to the spirit, purport and objects of this Chapter’. Moreover, section 35(2) expressly provides for a process of interpretation of legislative provisions sometimes called ‘reading-down’, ie that ‘no law which limits any of the rights entrenched in this chapter, shall be constitutionally invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this chapter, provided such law is reasonably capable of a more restricted interpretation which does not exceed such limits, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation’ (see also section 232(3)).
Section 35(2) of the interim Constitution was not repeated explicitly in the final Constitution, but the method of statutory interpretation mandated (and indeed required) by this section, read in conjunction with section 35(3), is now to be found in section 39(2) of the 1996 Constitution. Section 39(2) states that: ‘When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
In the recent case of Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA), in which the interim Constitution was the applicable one, the Supreme Court of Appeal (per Olivier JA) drew no distinction between the method of statutory interpretation mandated by sections 35(2) and (3) of the interim Constitution with that followed by, inter alia, the Constitutional Court in applying section 39(2) of the final Constitution. As regards the latter section, a clear statement of the approach to be followed is to be found in the judgment of Langa

DP in the Constitutional Court case of Investigating Directorate: Serious Economic Offences & Others v Hyundai Motor Distributors (Pty) Ltd & Others : In re Hyundai Motor Distributors (Pty) Ltd & Others v Smit NO & Others 2001 (1) SA 545 (CC). According to Langa DP, section 39(2) of the Constitution means –

[21] … That all statutes must be interpreted through the prism of the Bill of Rights. All law-making atuhority must be exercised in accordance with the Constitution. The Constitution is located in a history which involves a transition from a society based on division,



injustice and exclusion from the democratic process to one which respects the dignity of all citizens, and includes all in the process of governance. As such, the process of interpreting the Constitution must recognise the context in which we find ourselves and the Constitution’s goal of a society based on democratic values, social justice and fundamental human rights. This spirit of transition and transformation characterises the constitutional enterprise as a whole.

[22] The purport and objects of the Constitution find expression in s 1 which lays out the fundamental values which the Constitution is designed to achieve. The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and the purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution.

[23] In De Lange v Smuts NO & Others [1998 (3) SA 785 (CC)], Ackermann J stated that the principle or reading in conformity does

no more than give expression to a sound principle of constitutional interpretation recognised by other open and democratic societies based on human dignity, equality and freedom such as, for example, the United States of America, Canada and Germany, whose constitutions, like our 1996 Constitution, contain no express provision to such effect. In my view, the same interpretative approach should be adopted under the 1996 Constitution.”



Accordingly, judicial officers must prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section.

[24] Limits must, however, be placed on the application of this principle. On the one hand, it is the duty of a judicial officer to interpret legislation in conformity with the Constitution so far as this is reasonably possible. On the other hand, the Lgislature is under a duty to pass legislation that is reasonably clear and precise, enabling citizens and officials to understand what is expected of them. A balance will often have to be struck as to how this tension is to be resolved when considering the constitutionality of legislation. There will be occasions when a judicial officer will find that the legislation, though open to a meaning which would be unconstitutional, is reasonably capable of being read “in conformity with the Constitution”. Such an interpretation should not, however, be unduly strained.
(On the application of this principle of ‘reading in conformity’, sometimes referred to as the indirect application of the Bill of Rights to legislation, see further De Waal et al The Bill of Rights Handbook (4 ed 2001) 70-75 and the other authorities there cited.)
Relying upon sections 35(2) and (3) of the interim Constitution (and, by analogy, on section 39(2) of the final Constitution), counsel for the applicant argued that an interpretation of ‘spouse’ which would have the effect of excluding persons in the position of the applicant from the provisions of the Intestate Succession Act and the Maintenance of Surviving Spouses Act, would result in a violation of the applicant’s fundamental rights (enshrined in section 8(2) of the interim Constitution) not to be discriminated against unfairly and unjustifiably on the grounds of, inter alia, religion and culture. This being so, such an interpretation would render both statutes unconstitutional and hence invalid. However, because the inclusion of Muslim husbands and wives within the meaning of the word ‘spouse’, as utilised in these statutes, is a ‘plausible’ interpretation which can reasonably be ascribed to the relevant provisions, such an interpretation, which would be in conformity with the Constitution, must be adopted by this Court.
This argument is, at least superficially, an attractive one. However, where it falls down, in my view, is in the proposition that the interpretation of the word ‘spouse’, in the context of the Intestate Succession Act and the Maintenance of Surviving Spouses Act, is a ‘plausible’ one. I have already indicated that, seen against the background of recent statutory enactments and amendments which, by way of express deeming or interpretative provisions, recognise (inter alia) marriages by Muslim rites for specific purposes, as also in the light of the approach to the ‘recognition’ of Muslim marriages adopted in the Ryland and Amod cases (supra), an interpretation of the word ‘spouse’ in the Intestate Succession Act and the Maintenance of Surviving Spouses Act to include any person other than a party to a marriage currently recognised as valid in South African law would


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