''Hassam v Jacobs NO and Others'', an important case in South African law, was heard in the Constitutional Court on 19 February 2009, with judgment handed down on 15 July. The applicant was a party to a polygamous Muslim marriage, whose husband had died intestate. The Constitutional Court held that precluding the applicant from inheriting unfairly discriminated on the grounds of religion, marital status and gender, and was therefore inconsistent with section 9 of the Constitution. Accordingly, it was held that the applicant could inherit. The ambit of this judgment extended the ruling in ''

Daniels v Campbell ''Daniels v Campbell NO and Others'', an important case in South African family law and law of succession, was heard in the Constitutional Court on 6 November 2003 and decided on 11 March 2004. The court was unanimous that the constitution ...

'' to polygamous Muslim marriages.

Facts

The question was whether or not the benefits provided by the

Intestate Succession Act Intestate succession in South African law takes place whenever the deceased leaves property which has not been disposed of by valid testamentary instrument. In other words, the law of intestate Law of succession in South Africa, succession applies ...

) and the Maintenance Act accrue to surviving spouses of polygynous Muslim marriages. The objective of the legislation is to ensure that widows receive at least a child's share of their spouse's estates instead of being left precariously dependent on family benevolence. The Cape High Court found the Intestate Succession Act,s 1(4)(f). in discriminating on grounds of gender and religion and marital status, to be inconsistent with the Constitution. The word "spouse" in the Act should be interpreted henceforth to include partners in polygynous Muslim marriages, while "survivor" in the Maintenance Act should be read to include surviving partners of polygynous Muslim marriages.

Judgment

In the Constitutional Court, however, "spouse" was found not to be reasonably capable of being understood to include more than one partner in the context of a polygynous Muslim marriage. The words "or spouses," therefore, are henceforth to be read in after each use of the word "spouse" in the Act.

References

Cases

* ''Hassam v Jacobs NO and Others'' 2009 (5) SA 572 (CC).

Statutes

81 of 1987. * Maintenance of Surviving Spouses Act 27 of 1990.

Notes