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in the absence of an indication of free choice. Thus the real question was whether the default position of the law, ie the rule that applies in the case of a failure by a deceased person to indicate what his or her intention is with regard to his or her estate, should be allowed to stand even though it is discriminatory in its nature and effect.
(For further incisive discussion of the judgment of the Supreme Court of Appeal in the Mthembu case (supra) see Himonga ‘Implementing the rights of the child in African legal systems: the Mthembu journey in search of justice’ 2002 (9) International Journal of Children’s Rights 89 at 97-103.)
As was ultimately conceded by counsel for the first and second respondents, however, there is a very significant difference between the situation with which the Court was faced in the Mthembu case (supra) and the present proceedings. It is this: while the African customary law of intestate succession is recognised by legislation, and hence enforceable, in South African law, the Islamic law of intestate succession is not yet recognised by South African law and any ‘rights’ which the applicant may have under the Islamic law of succession are not legally enforceable in a South African court. Thus, when a Muslim person dies intestate, his or her estate devolves in accordance with the order of intestate succession set out in the Intestate Succession Act. The Islamic rules of succession can only be applied to the estate of a deceased Muslim if they are contained in the will of such a person (see Rautenbach & Goolam op cit 107-108). The effect of the non-recognition of the applicant as a ‘spouse’ in terms of the Intestate Succession Act and of the Maintenance of Surviving Spouses Act is not to vest in her any enforceable rights to claim an inheritance in terms of the Islamic law of intestate succession. On the contrary, as was conceded by respondents’ counsel, the deceased estate will devolve upon the descendants of the deceased per stirpes in terms of the Intestate Succession Act – a result which itself bears no relation to the position under the Islamic law of intestate succession (in terms of which a widow in the position of the applicant would inherit a one-eighth share of the deceased estate, with the balance to be distributed among the male and female defendants in the ration of 2:1). For this reason, it was (correctly, in my view) submitted by applicant’s counsel that the present case is not in fact about ‘weighing’ the equality clause in the Constitution against the constitutional imperatives of recognising cultural and religious pluralism, promoting religious and cultural freedom, or applying an ‘ethos of tolerance’. Nor is it about the recognition of Muslim personal law or the compatibility of such law with the Bill of Rights in the South African Constitution. On the ‘narrow’ interpretation of the word ‘spousein the relevant Acts, coupled with the non-recognition of the Islamic law of succession, inheritance ‘rights’ in Muslim families are not left to be regulated by Muslim personal law – rather, by not recognising the applicant as a ‘spouse’ in terms of the relevant Act, the estate of the deceased will be distributed in a manner which is both inconsistent with Muslim personal law and which unfairly discriminates against the applicant by ignoring the reality of her (de facto) monogamous marriage to her late husband. To coin a phrase, should the applicant not succeed in the present proceedings, she will be in the most unfortunate position of ‘falling between two stools’. To my mind, this is clearly unfair and cannot be tolerated in the new South African constitutional order.
A further argument relied upon by counsel for the respondents was based upon the idea of judicial deference to the role of the Legislature in bringing about law reform. Counsel pointed out that, commencing in 1999, the South African Law Commission has undertaken a review of ‘Islamic Marriages and Related Matters’ (Project 59) The Law Commission has, in the process, published an Issue Paper (Issue Paper 15, May 2000) and, after receiving comment from a wide range of interested and affected parties, a Discussion Paper (Discussion Paper 101, December 2001). The Discussion Paper includes a draft Islamic Marriages Bill which specifically amends section 1 of the Intestate Succession Act and section 1 of the Maintenance of Surviving Spouses Act so as to include ‘the spouse of an Islamic marriage recognised in terms of the Islamic Marriages Act’, as well as ‘the spouse of a deceased person in a union recognised as a marriage in accordance with the tenets of any religion’ (clauses 16(3) and (4) of the draft Bill).
While the Discussion Paper contains detailed discussion of, and proposals with regard to the statutory recognition and regulation of Muslim marriages and the various incidents of such marriages, it is clear that the Law Commission does not deal comprehensively with the Islamic law of succession, but proposes the abovementioned amendments to the Intestate Succession Act and the Maintenance of Surviving Spouses Act as an interim measure, so as to alleviate the hardships endured by Muslim spouses who in the past have not enjoyed recognition as ‘spouses’.
The Report and final draft Bill in this investigation have yet to be approved by the Law Commission. However, from a paper presented by the Chairperson of the Project Committee responsible for the investigation (Navsa JA) at a recent conference (the Miller Du Toit/Law Faculty of the University of the Western Cape Family Law Conference on ‘Equality, Family Law and Family Law Processes’, April 2003), it would seem that no change is envisaged to the proposed broadening of the definition of ‘spouse’ in the Intestate Succession Act and in the Maintenance of Surviving Spouses Act so as to cover, inter alia, the spouse of an Islamic marriage recognised in terms of the draft legislation. Once again, it would appear that this will be proposed as an interim measure, pending a full investigation into the possible statutory recognition and regulation of the Islamic law of succession.

It is indeed heartening that so much progress has been made by the Law Commission in this important project. However, until such time as any proposed legislation has received the imprimatur of Parliament, persons in the position of the applicant will continue to suffer the unfair discrimination which I have set out above. While it is clearly entirely appropriate that the recognition and regulation of Islamic personal and family law be dealt with by the Legislature, rather than by the courts – indeed, such legislation is expressly prefigured in both the interim Constitution (section 14(3)) and the final Constitution (section 15(3)) – it does not follow that the courts should, in the meantime, adopt a supine attitude towards the interpretation and application of existing statutes which have the effect of violating the constitutional rights of persons in the position of the applicant.
In view of my conclusion that the impugned provisions of the Intestate Succession Act and the Maintenance of Surviving Spouses Act, as interpreted above, are in breach of the equality clause (section 8) in the interim Constitution, the question remains as to whether the provisions may be justified in terms of section 33. The relevant part of section 33 reads as follows:

(1) The rights entrenched in this chapter may be limited by law of general application, provided that such limitation –



  1. shall be permissible only to the extent that it is –

  1. reasonable; and

  2. justifiable in an open and democratic society based on freedom and equality; and

  1. shall not negate the essential content of the right in question …


It is well established in our constitutional jurisprudence that the section 33 enquiry involves a proportionality assessment, in which the purpose, effects and importance of the infringing provisions are weighed against the nature and extent of the infringement caused. The greater the infringement of the fundamental rights in question, the more persuasive the grounds of justification will have to be. (See, for example, S v Makwanyane & Another 1995 (3) SA 391 (CC) at para [104]; S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) at paras [17] – [18]; Brink v Kitshoff NO (supra) 1996 (4) SA 197 (CC) at para [46]; and National Coalition for Gay and Lesbian Equality & Another v Minister of Justice & Others (supra) at paras [33] – [35]).
Apart from the abovementioned submissions based, in the main, on section 14 of the interim Constitution and on the idea of judicial deference to the role of the Legislature in bringing about law reform, the first and second respondents did not specifically address the question of whether the impugned provisions of the relevant Acts are justifiable in terms of section 33 of the interim Constitution. As indicated above, this application was not opposed by any of the other respondents, including the Minister of Justice (the eighth respondent), who is the Member of the National Executive responsible for the administration of the two Acts. This attitude adopted by the various respondents is not, however, necessarily decisive of the matter. As was pointed out by Heher J in National Coalition for Gay and Lesbian Equality & Others v Minister of Justice & Others 1998 (6) BCLR 726 (W) at 741A-B:

A court faced with a matter of great public interest and importance in which many potentially interested groups … have received no notice of the application, should do its best to place itself in the position of the legislature and the law-enforcing arms of the State in order to determine, as best it can, what there is to be said in favour of the legislation … The alternative is to allow laws to fall by default.


This is also the approach that has been adopted by the Constitutional Court (see, for example, the judgment of Ackermann J in National Coalition for Gay and Lesbian Equality & Another v Minister of Justice & Others (supra) at paras [5] –[6] and [33] – [57]; the judgment of O’Regan J in Dawood & Another; Shalabi & Another; Thomas & Another v Minister of Home Affairs & Others 2000 (3) SA 936 (CC) at paras [12] – [18] and [40] – [58]; and the judgment of Skweyiya AJ in Du Toit & Another v Minister of Welfare and Population Development & Others 2003 (2) SA 198 (CC) at para [31]).
I have found that the impugned statutory provisions, as I have interpreted them, do unfairly discriminate against persons in the position of the applicant on the grounds of religion, belief and culture. The centrality and foundational nature of the right to equality, in the context of both the interim and the final Constitutions, have repeatedly been emphasised by South African courts. So, for example, in National Coalition for Gay and Lesbian Equality & Others v Minister of Home Affairs & Others 1999 (3) SA 173 (C), Davis J, quoting the remark of the Constitutional Court in Fraser v Children’s Court, Pretoria North (supra) at para [20] to the effect that equality ‘lies at the very heart of the Constitution’, stated that, in the case of a breach of a ‘foundational value’ such as equality, the onus of justification would be very difficult to discharge (at 186J-187A). This is, in my view, particularly so in a case such as the present where, as a result of our past history of failing to afford recognition and respect to the religious beliefs and practices of, inter alia, members of the South African Muslim community, persons in the position of the applicant have undeniably been the victims of ‘deep patterns of disadvantage’ (see, for example, Cachalia op cit 399 and Rautenbach & Goolam op cit 113-115). It certainly cannot be gainsaid that the non-recognition of marriages by Muslim rites has, in the past, impaired the fundamental human dignity of many such persons (see Harksen v Lane NO & Others (supra) at para [50]).
By recognising the right of a surviving spouse to inherit from the intestate estate of the deceased spouse, the Intestate Succession Act and its predecessor, the Succession Act 13 of 1934, departed from the South African common law. The common law rules of intestate succession deprived surviving spouses of any inheritance whatsoever (see Corbett, Hofmeyr & Kahn The Law of Succession in South Africa (2 ed, 2001) at 562-566). By recognising the surviving spouse as an intestate heir, the Legislature acknowledged the reality of the contributions made by both spouses, during the existence of the marriage, to each other’s estate and, at the same time, created a mechanism for providing economically for the surviving spouse (and in particular, it would seem, for surviving widows who constitute a socially vulnerable group) after the death of the deceased. The promulgation of the Maintenance of Surviving Spouses Act 27 of 1990 appears to have been designed to serve the same purposes (see, in this regard, Sinclair (assisted by Heaton) op cit 178-179). These are obviously important state objectives. However, restricting the benefits afforded by such Acts only to the surviving spouses of marriages recognised as valid in South African law, coupled with the non-recognition of marriages by Muslim rites and all the ramifications of such non-recognition, creates a situation where the Muslim character of the applicant’s marriage to the deceased, despite its de facto monogamous character, withholds from that marriage the status accorded by South African law to most Christian and Jewish marriages, and to all civil marriages, for the purpose of the economic protection afforded by the law to surviving spouses. Herein lies the critical issue of discrimination in this case: the situation in which the applicant and others in a like position find themselves results in their being economically impoverished in an unfair way and, as discussed above, there does not presently appear to be any justification for such unfair discrimination.
I have already dealt in detail with, and rejected, the respondents’ attempt to ‘justify’ the ‘narrow’ interpretation of the word ‘spouse’ in the Intestate Succession Act and the Maintenance of Surviving Spouses Act with reference to section 14 of the interim Constitution, on the one hand and the idea of judicial deference to the Legislature, on the other. I reiterate that, until such time as Muslim personal law, particularly the Muslim law of succession, has been recognised by the Legislature and regulated in a manner consistent with the values underlying the South African Constitution, there is in my view no justification for the limitation of the equality rights of persons in the position of the applicant, which limitation flows from the impugned provisions of the relevant Acts – such provisions are therefore, to the extent alleged by the applicant, inconsistent with the Constitution and accordingly invalid.
I am fully aware that, by reaching this conclusion, I am unfortunately contributing to what has been called the ‘fractured landscape’ of South African family law. In the words of June Sinclair (op cit page 28) –

The tension between nation-building through unifying legal rules to conform as far as possible to one standard, whilst simultaneously respecting and celebrating the plural nature of our multi-cultural society … manifests itself frequently in undue complexity, testified to by the myriad of rules that regulate the intimate relationships of people of different races, different cultures, different religions, different sexual proclivities, different marital statuses and different conceptions of “family”, often merely and arbitrarily according to the date upon which they entered into these relationships. The result is a frighteningly fractured family-law landscape, a canvas showing sunshine and blue sky, but a fragmented rainbow composed of starkly separated shades.


It may well be that the ultimate solution to this tension and resulting fragmentation will be the promulgation of a comprehensive ‘Family Code’, as is suggested by Sinclair. However, in the interim, the kind of violation of constitutional rights thrown into relief by the facts of the present case cannot be tolerated and incremental remedies must be found.

The appropriate remedy

As was correctly submitted by counsel for the applicant, the remedial jurisdiction of this court in this case is determined by the provisions of the final Constitution, being the Constitution in force at the time of the hearing (see, in this regard, Fedsure Life Assurance Ltd & Others v Greater Johannesburg Metropolitan Council & Others 1991 (1) SA 374 (CC) at para [113], and First National Bank of South Africa Ltd t/a Wesbank v Commissioner South African Revenue Service & Another 2001 (3) SA 310 (C) at 315C-G).
Section 172 of the final Constitution provides that when deciding a constitutional matter within its power, a court:

(a) must declare that any law or conduct that is inconsistent to the Constitution is invalid to the extent of its inconsistency; and



  1. may make any order that is just and equitable, including –

  1. an order limiting the retrospective effect of the declaration of invalidity; and

(ii) an order suspending the declaration of invalidity for any period and on any condition, to allow the competent authority to correct the defect.
Section 172(2)(a) provides that:

[t]he Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a Provincial Act or any conduct by the President, but an order of Constitutional invalidity has no force unless it is confirmed by the Constitutional Court’.


In terms of section 38 of the final Constitution, a court which has found that a right in the Bill of Rights has been infringed or threatened and that this ‘limitation’ does not meet the test for justification, ‘may grant appropriate relief, including a declaration of rights’. Section 7(4)(a) of the interim Constitution was the predecessor to section 38, and is in all material respects identical thereto.
A detailed discussion of the formulation of appropriate remedies in respect of an infringement of constitutional rights is contained in, inter alia, the judgment of Ackermann J in National Coalition for Gay and Lesbian Equality & Others v Minister of Home Affairs & Others (supra) at paras [63] – [88]. I do not propose to repeat this discussion. Suffice it to say that, as held by the Constitutional Court in Fose v Minister of Safety & Security 1997 (3) SA 786 (CC):

[19] Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights …


[69] … In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to “forge new tools” and shape innovative remedies, if needs be, to achieve this goal.’
I am in agreement with the submissions made by applicant’s counsel to the effect that, in the present case, appropriate relief demands not merely a declaration that the challenged provisions are unconstitutional, but also the ancillary relief of ‘reading into’ the challenged provisions wording that will cure the constitutional defect and provide the applicant with meaningful relief. This type of relief was recognised as permissible by the Constitutional Court in National Coalition for Gay and Lesbian Equality & Others v Minister of Home Affairs & Others (supra), where Ackermann J made the following salient comments:

[74] The severance of words from a statutory provision and reading words into the provision are closely related remedial powers of the Court. In deciding whether words should be severed from a provision or whether words should be read into one, a Court pays careful attention first, to the need to ensure that the provision which results from the severance or reading words into a statute is consistent with the Constitution and its fundamental values and, secondly, that the result achieved would interfere with the laws adopted by the Legislature as little as possible. In our society where the statute books still contain many provisions enacted by a Parliament not concerned with the protection of human rights, the first consideration will in those cases often weigh more heavily than the second.



[75] In deciding to read words into a statute, a Court should also bear in mind that it will not be appropriate to read words in, unless in so doing a Court can define with sufficient precision how the statute ought to be extended in order to comply with the Constitution. Moreover, when reading in (as when severing) a Court should endeavour to be as faithful as possible to the legislature scheme within the constraints of the Constitution …

[76] It should also be borne in mind that whether the remedy a Court grants is one striking down, wholly or in part; or reading into or extending the text, its choice is not final. Legislatures are able, within constitutional limits, to amend the remedy, whether by re-enacting equal benefits, further extending benefits, reducing them, amending them, “fine-tuning” them, or abolishing them. Thus they can exercise final control over the nature and extent of the benefits.
To my mind, pending the statutory recognition and application of the Islamic law of succession in a manner which is consistent with the fundamental values underpinning the South African constitutional order, the only appropriate way in which the applicant and others in a like position can be afforded effective relief is by a suitable reading-in order. The relief sought by the applicant in prayers 2.2 and 4.2 of the Notice of Motion does define with sufficient clarity and precision how the relevant statutes must be extended in order to comply with the Constitution and is, to the greatest extent possible, faithful to the legislative scheme of these statutes.
Finally, in order to preserve the interests of finality in respect of the winding up of deceased estates and thus avoid undue disruption, the retrospective effect of the order which I propose to make in respect of the Intestate Succession Act must be limited to deceased intestate estates which have not been finally would up, as foreshadowed by prayer 2.3 in the Notice of Motion (cf. in this regard, the order of the Constitutional Court in Brink v Kitshoff NO (supra) at para [60]).
The applicant did not ask for costs in the Notice of Motion or at any other stage of these proceedings. No order as to costs will therefore be made.
The order

For the reasons set out above, I make the following orders:


  1. The omission from section 1(4) of the Intestate Succession Act 81 of 1987 of the following definition is declared to be unconstitutional and invalid: “ ‘spouse’ shall include a husband or wife married in accordance with Muslim rites in a de facto monogamous union”.




  1. Section 1(4) of the Intestate Succession Act 81 of 1987 is to be read as though it included the following paragraph after paragraph (f):

(g) ‘spouse’ shall include a husband or wife married in accordance with Muslim rites in a de facto monogamous union.”


  1. The orders in paragraphs 1 and 2 above shall have no effect on the validity of any acts performed in respect of the administration of an intestate estate that has been finally wound up by the date of this order.




  1. The omission from the definition of “survivor” in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 of the words “and includes the surviving husband or wife of a de facto monogamous union solemnised in accordance with Muslim rites” at the end of the existing definition, is declared to be unconstitutional and invalid.




  1. The definition of “survivor” in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 is to be read as if it included the following words after the words “dissolved by death”:

and includes the surviving husband or wife of a de facto monogamous union solemnised in accordance with Muslim rites.”

…………………………………….



B J VAN HEERDEN


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