Cape Town - The Women’s Legal Centre (WLC) has welcomed the Constitutional Court’s judgment in the case involving the rights of wives in polygamous Muslim marriages.
The country’s apex court had confirmed a Western Cape High Court decision that it is unconstitutional not to recognise the rights of a spouse in a polygamous Muslim marriage to the benefits of her deceased husband’s will.
The case involved the late Osman Harneker, who had married Amina Harneker and Farieda Harneker under the tenets of Islamic law.
The family had nine children together and in order to secure a bank loan, and with the consent of Farieda, the deed of transfer for the family home reflected only the names of Osman and Amina, with whom his marriage was legally formalised.
The family lived together in the property until Osman died in 2014.
His will referred to both wives and his children, but all of the children renounced the benefits.
Fareed Moosa, as executor of the estate, said the shares should then be shared equally between Amina and Farieda, as Osman's “surviving spouses”, in accordance with section 2C(1) of the Wills Act.
However, the Deeds Registrar declined to approve Farieda’s registration on the basis that “surviving spouse” in section 2C(1) only covers spouses recognised formally under South African Law.
Moosa, Amina and Farieda then took, among others, the justice minister and the registrar of deeds to court.
The WLC were amicus curiae or friends of the court.
“Consequently, the applicants applied to the High Court for an order declaring that section 2C(1) of the Wills Act is inconsistent with the constitution and invalid for its failure to apply to surviving spouses in polygamous marriages in terms of the tenets of Islamic laws," the court papers read.
“The applicants submitted that this interpretation of the section adopted by the second respondent violated the third applicant’s rights to equality and dignity.”
The Constitutional Court confirmed the declaration of constitutional invalidity of section 2C(1) of the Wills Act 7 of 1953 by the High Court.
The order on Friday comes while judgment has been reserved in another case in the Western Cape High Court relating to having Muslim marriages recognised under common law.
In a separate case the WLC took the president, the departments of Home Affairs, Justice and Correctional Services to court to have Muslim marriages recognised with the passing of the bill.
The WLC argued that by not recognising Muslim marriages under common law, Muslim women were not afforded legal protection and did not have access to the courts to assert their rights.
WLC director Seehaam Samaai said they welcomed Friday’s court finding which supported their fight.
“The court is acknowledging that women are remaining vulnerable. As long as the court does not bring forward a legislative framework we will have to resolve matters in court all the time, which is expensive,” Samaai said.
The Constitutional Court also ordered that the Wills Act read to include the words: “‘surviving spouse’ includes every husband and wife of a monogamous and polygamous Muslim marriage solemnised under the religion of Islam”.