Section 2c One Of Wills Act Declared Unconstitutional

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On 14th September 2017, the High Court of South Africa, delivered a judgment in Moosa and Others v Minister of Justice and Correctional Services and Others 2018 ZACC 19, which declared Section 2C(1) of the Wills Act 7 of 1953 (hereinafter “the Wills Act”) constitutionally invalid.

The reason being its failure to recognise the rights of a Spouse married by Muslim rites in a polygamous marriage to benefit in terms of their late Spouse’s Will.

The matter was then brought on application to the Constitutional Court in terms of rule 16(4) of the Constitutional Court Rules for confirmation of the above order of the High Court.

The facts giving rise to the litigation in this matter are as follows:  The Deceased married his first wife, Amina Harneker (‘first wife’) under Islamic Law in 1957 and later in 1982 under South African Law.  He also married Farieda Harneker (‘second wife’) in 1964, under Islamic Law.

During the Deceased’s lifetime, he resided with both his wives and children, until his death in 2014.  The Deceased’s Last Will and Testament provided instructions to distribute his estate in accordance with Islamic Law and to the benefit of both Spouses and the children born of the respective marital unions.

Mr Fareed Moosa, in his capacity as Executor of the Deceased’s estate, confirmed that the Deceased’s children renounced all benefits due to them in terms of the Will.

In the event of a Deceased’s descendant(s) renouncing their right to a benefit due to them in terms of a Will, section 2C(1) of the Wills Act states that “such benefit shall vest in the surviving Spouse.” In light of the aforementioned, the Executor regarded both wives as surviving Spouses and, thus, entitled to share in the renounced benefits on an equal basis. The Executor lodged a Liquidation and Distribution Account with the Master of the High Court.

Further to the above, the Executor then sought to register the Deceased’s half-share in the familial home, inclusive of the portion renounced by his descendants born of the marriage, in the Second Applicant’s name; a request with which the Registrar of Deeds, Cape Town, duly complied. However, the Third Respondent declined to do the same for the Third Applicant as the Third Applicant’s Islamic marriage was not legally recognised under the laws of the Republic and, therefore, she could not be regarded as a “surviving Spouse” in terms of the Wills Act.

Relying on section 2C(2), the Third Respondent stated that the benefits renounced by the Deceased’s descendants born of his marriage to the Third Applicant therefore vest in the children of those descendants, as opposed to the Third Applicant. The Third Respondent’s rationale was that the term “surviving Spouse” in section 2C(1) should be strictly interpreted to protect Spouses formally recognised under the laws of South Africa.

The Executor and remaining Spouses argued that this interpretation violated the second wife’s right to equality and dignity in terms of Section 9 and 10 of the Constitution, respectively.

The Court a quo held that the phrase “surviving Spouse” in this section dates back to a pre-constitutional era when it contemplated a partner in a common law monogamous union.  It could not be interpreted to include multiple surviving Spouses.

The section consequently differentiates between surviving Spouses married in terms of the Marriage Act and those solemnised under the tenets of Islamic Law.  The Court further held that the section inter alia discriminates between surviving Spouses in monogamous civil marriages and those in Muslim polygamous marriages.

As a result thereof, the Court found that Section 2C(1) unfairly discriminates against the second wife by recognising the Deceased’s first wife as a surviving Spouse, due to their marriage concluded as a Civil Union, but excludes the first wife only because the marriage was concluded under Islamic Law.

The High Court consequently held that the section was inconsistent with the Constitution and Invalid.  The Constitutional Court further extended this section to provide for the inclusion of every husband and wife of a monogamous and polygamous Muslim marriage solemnised under the religion of Islam.

The declaration of invalidity only operates retrospectively with effect from 27th April 1994, except for instances where transfer of ownership was finalised prior to the date of this Order pursuant to Section 2C(1) of the Wills Act, unless the property was subject to legal challenge on the same facts.


Roua Pienaar

Candidate Attorney

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