400:
The historic exclusion in South Africa flowed not from the courts' giving the word its ordinary meaning but from a linguistically-strained usage and from cultural and racial prejudices. Both the intent and the impact of the restrictive interpretation were discriminatory. On this view, it was not necessary to "read in" additional phrases to the legislation, but only to read the relevant provisions according to their natural meaning, on which they were not offensive to the right to equality. The
Constitutional Court therefore handed down a declaratory order instructing that the surviving partners to monogamous Muslim marriages qualified as "spouses" for the purposes of the Intestate Succession Act and "survivors" for the purposes of the Maintenance of Surviving Spouses Act. The court intentionally did not deal with the question of polygamous Muslim marriages.
33:
424:
Marriage Act. Thus the minority favoured the High Court's approach: because Muslim spouses were excluded from the protections of the
Intestate Succession Act and Maintenance of Surviving Spouses Act and because that exclusion was unjustifiably discriminatory, it would uphold the declaration of constitutional invalidity and read in an alternative phrasing. Moseneke added that it would be less offensive to the
367:. She therefore granted the alternative relief sought by Daniels and instructed that, until such time as the legislature recognised the Muslim personal law of succession in a manner consistent with the Constitution, certain provisions should be read into the Acts to ensure that their protections extended to "a husband or wife married in accordance with Muslim rites in a
381:
for confirmation of the declaration of constitutional invalidity. Anxious that the
Constitutional Court would not confirm the order, Daniels also applied in the High Court for leave to appeal should the application for confirmation fail; this application, though unnecessary, led to a second judgment
399:
held that the word "spouse," in its ordinary meaning, should include parties to a Muslim marriage, because this corresponds to the way the word is generally understood and used, and because it would be far more awkward from a linguistic point of view to exclude Muslim partners than to include them.
358:
found that
Daniels was not a spouse or survivor for the purposes of the Acts, because her marriage to the deceased was not a valid marriage in South African law. Courts did not recognise Muslim marriages both because they were potentially polygamous and because they were not solemnised under the
423:
joined; the minority held that the majority's reading of the Acts was "unduly strained", because – as demonstrated in the court's own precedent – the word "spouse" bore no ordinary meaning other than a partner in a legally enforceable marriage, and therefore in a marriage recognised under the
342:
for an order declaring that she was the spouse and survivor of the deceased, or, alternatively, for an order declaring that the
Intestate Succession Act and Maintenance of Surviving Spouses Act were unconstitutional to the extent that they
459:
285:, disagreed with this approach, arguing that the legislation refers to lawful marriages under the Marriage Act and that the legislation is therefore unconstitutional in its current form.
562:
542:
326:
found that
Daniels could not inherit the deceased's estate or receive maintenance from it; such a marriage did not qualify her as a "surviving spouse" in terms of the
428:
for this unjust exclusion to be addressed through legislative intervention rather than through the "interpretative intervention" launched by the majority.
557:
307:
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323:
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Eight of the justices agreed with this order and with Sachs's opinion. The same group joined in a separate concurring judgment filed by
Justice
552:
110:
378:
239:
43:
319:
259:
235:
360:
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and
Maintenance of Surviving Spouses Act, 1990 must be read to extend such rights. A minority, comprising Justices
106:
481:
494:
407:, which elaborated on how the same conclusion could be reached by means of section 39(2) of the Constitution.
355:
327:
274:
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in the Cape High Court, in which Acting Judge Ashley Binns-Ward granted her conditional leave to appeal.
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445:
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351:
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on 6 November 2003 and decided on 11 March 2004. The court was unanimous that the constitutional
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243:
139:
416:
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Marriage Act. However, van
Heerden also found that this situation was inconsistent with the
278:
159:
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315:
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255:
192:
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195:, as does the word "survivor" as used in the Maintenance of Surviving Spouses Act, 1990.
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270:
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Ngcobo J (Chaskalson, Langa, Ackermann, Mokgoro, O’Regan, Sachs and Yacoob concurring)
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Sachs J (Chaskalson, Langa, Ackermann, Mokgoro, Ngcobo, O’Regan and Yacoob concurring)
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344:
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151:
123:
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monogamous Muslim marriages; it was extended to polygamous Muslim marriages in
371:
175:
143:
311:
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in 1994; the main item in the deceased's estate was the couple's home in
163:
460:
Women's Legal Centre Trust v
President of the Republic of South Africa
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and maintenance must be extended to the surviving partners of
258:, even though such marriages are not recognised under the
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in the High Court, Cape of Good Hope Provincial Division
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and in particular with Muslim spouses' constitutional
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330:and Maintenance of Surviving Spouses Act, 1990.
191:includes the surviving partner to a monogamous
89:; 2004 (5) SA 331 (CC); 2004 (7) BCLR 735 (CC)
288:The ambit of this judgment was restricted to
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377:The High Court's order was referred to the
563:South African anti-discrimination case law
543:Constitutional Court of South Africa cases
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22:
273:, a majority of the court held that the
519:
395:In the Constitutional Court, Justice
265:In dual opinions written by Justices
111:Cape of Good Hope Provincial Division
7:
501:Maintenance of Surviving Spouses Act
379:Constitutional Court of South Africa
347:unfairly against Muslim marriages.
44:Constitutional Court of South Africa
419:filed a dissent, in which Justice
318:, without solemnisation under the
14:
558:Law of succession in South Africa
187:The word "spouse" as used in the
54:Daniels v Campbell NO and Others
478:Daniels v Campbell NO and Others
227:Daniels v Campbell NO and Others
121:Daniels v Campbell NO and Others
103:Daniels v Campbell NO and Others
306:Juleiga Daniels's husband died
548:2004 in South African case law
328:Intestate Succession Act, 1987
314:. Because the couple had been
275:Intestate Succession Act, 1987
219:Moseneke J (Madala concurring)
189:Intestate Succession Act, 1987
1:
553:South African family case law
105:2003 (9) BCLR 969 (C) in the
579:
340:High Court of South Africa
107:High Court of South Africa
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30:
495:Intestate Succession Act
356:Cape Provincial Division
324:Master of the High Court
246:requires that rights of
232:South African family law
124:[2003] ZAWCHC 41
16:South African legal case
350:On 24 June 2003, Judge
338:Daniels approached the
316:married by Muslim rites
230:, an important case in
63:11 March 2004
87:[2004] ZACC 14
248:intestate inheritance
426:separation of powers
240:Constitutional Court
352:Belinda van Heerden
238:, was heard in the
391:Majority judgments
320:Marriage Act, 1961
260:Marriage Act, 1961
26:Daniels v Campbell
411:Minority judgment
365:right to equality
334:High Court action
244:right to equality
236:law of succession
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570:
527:
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417:Dikgang Moseneke
279:Dikgang Moseneke
256:Muslim marriages
131:Court membership
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446:Ismail v Ismail
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295:Hassam v Jacobs
193:Muslim marriage
117:Related actions
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405:Sandile Ngcobo
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271:Sandile Ngcobo
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50:Full case name
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421:Tholie Madala
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345:discriminated
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140:Chaskalson CJ
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99:Prior actions
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361:Constitution
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94:Case history
53:
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509:25 of 1961.
503:27 of 1990.
497:81 of 1987.
453:Kahn v Kahn
439:Amod v MMVF
397:Albie Sachs
267:Albie Sachs
254:monogamous
208:Concurrence
200:Decision by
148:Ackermann J
75:Docket nos.
537:Categories
467:References
372:monogamous
302:Background
160:Moseneke J
78:CCT 40/ 03
67:2004-03-11
484:331 (CC).
480:2004 (5)
386:Judgments
374:union".
312:Cape Town
308:intestate
168:O’Regan J
156:Mokgoro J
144:Langa DCJ
83:Citations
526:Para 19.
489:Statutes
432:See also
415:Justice
369:de facto
290:de facto
252:de facto
176:Yacoob J
164:Ngcobo J
152:Madala J
354:of the
216:Dissent
172:Sachs J
65: (
60:Decided
322:, the
514:Notes
472:Cases
40:Court
281:and
269:and
262:.
234:and
174:and
298:.
539::
482:SA
170:,
166:,
162:,
158:,
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109:,
69:)
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