ConCourt win for Muslim widows

IN A victory for Muslim women married in polygamous marriages‚ the Constitutional Court confirmed that a section in the Wills Act was unconstitutional.

The section failed to recognise the right of a surviving spouse in a polygamous Muslim marriage to the benefits of her deceased husband’s will.

The Constitutional Court confirmed the order made by the High Court in Cape Town last year‚ which declared section 2C(1) of the Wills Act invalid.

The Constitutional Court said the section should be read as including the following:

“For the purposes of this sub-section‚ a ‘surviving spouse’ includes every husband and wife of a monogamous and polygamous Muslim marriage solemnised under the religion of Islam.”

In this case‚ Osman Harneker – who died in 2014 – married his first wife Amina Harneker in 1957 and his second wife Farieda Harneker in 1964 under Islamic law.

He married his first wife under South African law in 1982‚ following advice he received so that he could obtain a bank loan to purchase the family home. This was because Muslim marriages were not legally recognised in South Africa.

The deed of transfer only referred to himself and his first wife. In his last will prepared in 2011‚ Harneker had referred to both his marriages.

The executor of the estate‚ Fareeda Moosa‚ said all children renounced the benefits due to them under the will.

Section 2C(1) of the Wills Act entitled a “surviving spouse” to the benefit of a will if the descendants of the person who has made the will renounce their right to it.

Acting in terms of this section‚ Moosa regarded both wives as surviving spouses and recorded that both spouses would receive equal benefits. The Master of the High Court accepted the calculation.

The executor challenged the validity of this section in the high court.

The High Court in Cape Town agreed last year and declared that the section was unconstitutional.