MEDIA RELEASE FROM WOMEN’S
LEGAL CENTRE
11 March 2004
Constitutional Court
recognises Muslim marriages for purposes of intestate succession -
retrospectively
Today, the Constitutional Court
handed down its decision in the case of JULEIGA DANIELS versus ROBIN GRIEVE
CAMPBELL NO and 9 others. The Court ruled that both the Intestate
Succession Act and the Maintenance of Surviving Spouses Act afford protection to
the surviving partners of monogamous Muslim marriages.
Daniel’s attorney, Michelle
O'Sullivan of the Women’s Legal Centre, says, "The effect of the order
is that husbands and wives who are married in terms of Muslim rites in a
monogamous marriage may inherit (where their spouse dies without a will) and
claim maintenance from their spouses’ deceased estates. Previously, they
were excluded from the protection afforded by these Acts. The decision has
retrospective effect and will apply to existing deceased estates. This means
that spouses in this position should now institute maintenance claims and ensure
that they receive their share of intestate estates".
The Court made the following
order:
1. The order made by the
High Court is set aside and replaced with the following order:
"(a) It is declared that
:
(i) the word "spouse"
as used in the Intestate Succession Act 81 of 1987, includes the surviving
partner to a monogamous Muslim marriage ;
(ii) the word "survivor"
as used in the Maintenance of Surviving Spouses Act 27 of 1990, includes the
surviving partner to a monogamous Muslim marriage.
(b) It is declared that
:
(i) the applicant is, for the
purpose of the Intestate Succession Act 81 of 1987, a "spouse"
;
(ii) the applicant is, for
purposes of the Maintenance of Surviving Spouses Act 27 of 1990, a "survivor".
The facts of the case are
:
Juleiga Daniels married her now
deceased husband by Muslim rites in 1977. The marriage, which was at all
times monogamous, was not solemnised by a marriage officer appointed in terms of
the Marriage Act of 1961 No children were born of this marriage, though
the applicant and her deceased husband had children from previous marriages.
The deceased died intestate in 1994.
The main asset in the deceased
estate is a modest house in a low-income suburb of Cape Town. The house was
valued for estate purposes at less than R50 000.
Daniels is a domestic worker
who has supplemented her income by selling goods from in front of her house.
She resides on the property, having lived there for nearly thirty years.
In July 1969 her first husband, to whom she was also married by Muslim rites,
submitted a written application to the City of Cape Town to rent a council
dwelling. In 1976, after she and her first husband were divorced, the City
of Cape Town allocated the dwelling to her in her own name. The applicant
and her children were in occupation of the property when she married the
deceased by Muslim rites in 1977. She informed the City of Cape Town of
her remarriage and furnished it with a copy of her marriage certificate.
In accordance with its then policy of registering the principal breadwinner of
the family as the tenant, the City of Cape Town transferred the tenancy of the
property to the deceased.
Tenants of council houses were
later given the opportunity to purchase such houses, and in 1990 the deceased
entered into an instalment-sale agreement to purchase the house from the City of
Cape Town. Daniels, who had contributed substantially towards the
household expenses, including the rent and the service charges, as well as
towards the purchase price of the property, also signed the deed of sale.
When the deceased died the outstanding balance owing on the purchase price of
the property was written off in terms of state policy, and the property was
transferred to the estate of the deceased in 1998.
Daniels was told by the Master
that she could not inherit from the estate of the deceased because she had been
married in terms of Muslim rites, and therefore was not a “surviving
spouse”. A claim for maintenance against the estate was rejected on the
same basis.
With the support of the
Women’s Legal Centre, Daniels approached the High Court for an order declaring
that she was a spouse of the deceased and his survivor. In the
alternative, she asked for the Acts to be declared unconstitutional to the
extent that they discriminated unfairly against Muslim marriages.
Note to editors: IF YOU WOULD
LIKE A COPY OF THE JUDGEMENT
E-MAILED TO YOU, PLEASE CALL
DANI COHEN 082 897 0443
Ends
Prepared by: Beachhead Media and Investor Relations
Dani Cohen 021 469 9000/ 082 897 0443 / dani@bmsa.co.za
On behalf of: The Women’s
Legal Centre
Contact:
Director, Women’s Legal Centre
021-424 0870 / 083-212 7477
Website:
www.wlce.org.za