Section 2C (1) of the Wills Act declared invalid by the Constitutional Court – The effect on polygamous Muslim Marriages

Section 2C (1) of the Wills Act 7 of 1953 as amended (hereinafter referred to as the “Wills Act”), previously prevented surviving spouses who entered into polygamous Muslim marriages, in terms of Muslims rites only, from inheriting repudiated shares of a deceased’s estate.

In September 2017, the High Court of South Africa, Western Cape Division, Cape Town acknowledged that the references to ‘spouse’ in terms of the Wills Act has been known to be confined to husbands and wives whose marriages are formalised under the Marriage Act 25 of 1961, Recognition of Customary Marriages Act 120 of 1998 or Civil Union Act 17 of 2006. Therefore, with no reference been made to surviving spouses who entered into polygamous Muslim marriages, in terms of Muslims rites, the High Court declared Section 2C (1) to be inconsistent with the Constitution.

On the 29 June 2018, the Constitutional Court handed down Judgment in the matter of Moosa No and Others v Minister of Justice and Correctional Services and Others which declares the above mentioned section invalid.

Osman Harnaker, who died in 2014, married Amina Harnaker in 1957 under Muslim rites, and with her permission married Farieda Harnaker years later. The applicants Amina and Farieda Harneker contested the legal execution of their deceased husband’s will.

Despite being married to both women according to Muslim rites for many years, in 1982 Osman was advised that he had to be legally and formally married to apply for the home loan to buy a house that he would later share with Amina, Farieda and their nine children.

At the time, polygamous Muslim marriages were not recognised by law, so he formalised his marriage to Amina with Farieda’s consent. When he died, Farieda’s claim to the estate was challenged according to Section 2C (1) of the Wills Act 7 of 1953.

After Osman’s death and despite his will and a certificate by the Muslim Judicial Council stating that both women share his estate equally, Farieda was refused her portion as she was not recognised under the Marriages and Civil Union Act.

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