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Constitutional Court of South Africa - www.constitutionalcourt.org.za ; http://www.saflii.org/za/cases/ZACC/

15 July 2009
CCT83/08 [2009] ZACC 19
Hassam v Jacobs NO and Others
Intestate Succession Act 81 of 1987
Keyphrases :
Muslim Youth Movement of South Africa
Women's Legal Centre Trust

Court to rule on Muslim marriages - 13 July
The Constitutional Court will rule on an application that revolves around the recognition in law of all partners in a Muslim marriage when it sits in Johannesburg on Wednesday. The applicant in the case, Fatima Hassam had applied for confirmation of an order of constitutional invalidity made by the Cape High Court. - IOL website

According to section 1(4)(f) of the Intestate Succession Act 81 of 1987, "only one spouse in a Muslim marriage is entitled to be an heir in the intestate estate of their deceased husband". This excluded widows who were party to polygynous marriages. The above-mentioned section of the Intestate Succession Act was declared to be invalid, by Van Reenen J in the Western Cape High Court in the matter of Hassam v Jacobs NO & others [2008] JOL 22098 (C). The court held that excluding the widows of polygynous Muslim marriages from benefitting in terms of the Intestate Succession Act would be in "conflict with the equality provisions in the Constitution". The matter was then taken to the Constitutional court for confirmation of the "declaration of constitutional invalidity of section 1(4)(f) of the Intestate Succession Act". Judgment in this matter was handed down by the Constitutional Court this morning. The court dealt with, among others, the following issues : 1. Whether the exclusion of spouses in Polygynous Muslim marriages from the Intestate Succession Act is in violation of section 9(3) of the Constitution ; 2. Whether such exclusion constituted discrimination ; 3. If so, whether such discrimination was unfair and whether it was justifiable in terms of section 36 of the Constitution ; and 4. Whether the word spouse in the Intestate Act can be read to include spouses in polygynous Muslim Marriages. Source : LexisNexis

 

Media release from the Women's Legal Centre 15 July 2009 Now all wives in a Muslim marriage can claim if husband dies without will The Constitutional Court today unanimously confirmed the High Court judgment of Judge Van Reenen that the first applicant in a polygamous Muslim marriage may be a beneficiary to her deceased husband’s intestate estate. The applicant, Mrs Fatima Gabie Hassam, was one of two wives of the deceased, Ebrahim Hassam. The executor of the deceased estate acknowledged the second wife as the spouse of the deceased for the purposes of inheritance in terms of the Intestate Succession Act and the Maintenance of Surviving Spouses Act. Mrs Gabie Hassam therefore turned to the High Court for assistance to recognize her rights as a spouse. The Women's Legal Centre (WLC) intervened as amicus curiae in the matter. Muslim marriages, unlike civil or African customary law marriages, are still not legally recognised in South Africa which means that Muslim women are not afforded legal protection and have no legal redress to assert their rights. Legislation relating to Muslim marriages has been on the cards for more than a decade, but there has been no indication of when and how the legislation will be passed. The constitutional vision of an egalitarian society necessitates embracing the diversity of South Africans. This is illustrated by legislation recognising polygany in customary marriages and by the judiciary recognising Muslim marriages on an ad hoc basis to protect the individual rights of the parties in the matter before the court. This confirmation of constitutional invalidity of legislation, which marginalizes a class of women, reflects the necessity that the legislature and the judiciary must only look to the constitution for guidance and uphold its supremacy. This ethos is further confirmed by Justice Nkabinde whose judgment reflects that the decision will operate retrospectively from 27 April 1994. Legislation urgently needs to be passed in order to be on par with the Constitution to ensure the Muslim community's human rights. This confirmation is obviously a step in the right direction towards ensuring that Muslim women have a right to marital assets to which they contributed in a marriage, but the Legislature urgently needs to pass legislation to ensure that a significant sector of the South African community is protected within the constitutional framework. Women's Legal Centre Hoodah Abrahams-Fayker 7th Floor Constitution House, 124 Adderley Street, Cape Town Telephone : 021-424 5660 Fax : 021-424 5206 E-Mail : hoodah@wlce.co.za Prepared by : FD

Muslim widows affected by court ruling - 15 July
All the wives in a Muslim marriage will be entitled to claim from the estate of a husband who dies without a will, the Constitutional Court ruled in Johannesburg on Wednesday. Previously, the Intestate Act recognised only one spouse, making it difficult for all the widows in a polygamous marriage to make a claim. The court ruled this was discriminatory and unfair. - IOL website

Muslim women to enjoy greater rights in marital law - 16 July
Muslim women married under shariah law edged closer to full enjoyment of the rights provided under South African marital law. On Wednesday the Constitutional Court ruled that Muslim women involved in polygynous marriages can now inherit a share of their deceased husband's estate. The Intestate Succession Act recognises widows married in civil ceremonies, widows in monogamous Muslim marriages and widows in polygynous cultural marriages, but not women in polygynous Muslim marriages. - Mail & Guardian website

15 July 2009
CCT 98/08 [2009] ZACC 18
Centre for Child Law v Minister for Justice and Constitutional Development, Minister for Correctional Services, Legal Aid Board and National Institute for Crime Prevention and the Re-integration of Offfenders
Constitution - Criminal Law Amendment Act 38 of 2007

Court rules on minimum sentences for teens - 15 July
Sixteen- and 17-year-olds affected by new minimum sentencing laws can have their sentences reviewed, following a Constitutional Court judgment on Wednesday. - IOL website

According to section 28 (2) of the Constitution of the Republic of South Africa, 1996, "A child's best interests are of paramount importance in every matter concerning the child". In terms of the Criminal Law Amendment Act 38 of 2007 minimum sentences for certain serious crimes were made applicable to 16 and 17 year old children. The provisions of the Criminal Law Amendment Act were challenged by the Centre for Child Law in Pretoria, and on 4 November 2008, Potterill AJ granted an order declaring various provisions in the Criminal Law Amendment Act 105 of 1997 as invalid. In a Constitutional Court judgment handed down this morning, the court dealt with an application by the Centre for Child Law in its’ attempt to have the High Court ruling mentioned above, confirmed. The court scrutinised "the scope and purpose" of children's rights in the Bill of Rights, in its' judgment, as well as the proper approach to retroactivity in criminal proceedings. Source : LexisNexis

Stiff sentences on teens quashed - 16 July
Parliament's plans to reduce the growing number of violent crimes committed by children with harsh sentences has been quashed by South Africa's highest court. The Justice Department fought hard for the 2007 Criminal Law (Sentencing) Amendment Act 38 to stand, stating under oath that it was specifically designed to deal with the burgeoning numbers of violent and sexual crimes committed by 16- and 17-year-olds. But, led by Justice Edwin Cameron, the majority of the Constitutional Court's judges found that it was unconstitutional for 16- and 17-year-old offenders to face the same sentences as adults. - IOL website

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