CAPE TOWN - A “widow” who challenged the constitutional validity of sections of the Intestate Succession Act has lost her legal bid to share in her “husband’s” estate.
She had challenged the section of the act that excluded the widows in a polygamous marriage from inheriting maintenance following the death of their husbands.
The Johannesburg High Court found that Pearl Modise was never married in the first place to the late MG Modise.
It found that he was already married at the time. Apart from that, there was also a court order issued in 2012 in place, which prohibited such a marriage taking place.
Modise told the court that in February 2012 she entered into a polygamous religious marriage with the man following the religious rites of the International Pentecostal Holiness Church.
This is an orthodox Christian church founded in 1962 consisting of more than 300 branches and about 4 million followers across the Southern African Development Community region.
She alleged that polygamy was a foundational value of the doctrine of this church, in terms of which men were permitted to wed more than one wife, although women were not afforded the same choice.
She said this meant that after her “husband” died, she stood in line for her slice of the maintenance, but the executors of the dead man’s estate refused to entertain her claim.
She was told that her polygamous marriage was excluded from the Maintenance of Surviving Spouses Act, as it was performed by the church.
Modise argued that excluding spouses in polygamous religious marriages of this church from the act violated the “equality” provisions of the Constitution.
This provides for the state to not unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language and birth.
According to her, the Maintenance of Surviving Spouses Act and the Recognition of Customary Marriages Act also discriminated unfairly on the basis of equality and human dignity against a wide category of widows, including those in polygamous International Pentecostal Holiness Church marriages.
She said that a wife married to a husband in terms of a polygamous marriage solemnised by the church should be protected by law after he died.
Thus, Modise argued, she should be entitled to spousal maintenance from her late husband’s estate.
According to her, this right should include all the wives married in terms of a polygamous marriage solemnised by this church.
The court commented that it was common cause that Modise’s marriage was not celebrated in accordance with the requirements set out in Customary Marriages Act, nor was it solemnised by a marriage officer appointed in terms of the Marriage Act. It was also not a customary marriage.
At the time of the purported marriage between her and the man, he had already entered into a civil marriage, in community of property, with another woman, who had recently died.
His then wife obtained an urgent interdict against Modise and her in 2012 when she heard that they wanted to get married.
Her reason was that she was still married to him.
In response, he at the time told the court that he never intended to get married to Modise. He also denied her claims that he had paid R100 000 towards lobola for her.
In this present application for spousal maintenance, Judge KE Matojane questioned how Modise knowingly entered into a bigamous marriage which had been prohibited by the court in 2012.
Cape Times