Authored By: Elsie Mabena
University of South Africa
Case Name: Detailed Summary of Constitutional Court Case CCT 83/08: Hassam v Jacobs NO and Others
Case CCT 83/08 [2009] ZACC 19
FATIMA GABIE HASSAM — Applicant
JOHAN HERMANUS JACOBS NO — First Respondent
MASTER OF THE HIGH COURT — Second Respondent
MARIAM HASSAM — Third Respondent
MARIAM HASSAM NO — Fourth Respondent
MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT — Fifth Respondent
MUSLIM YOUTH MOVEMENT OF SOUTH AFRICA — First Amicus Curiae
WOMEN’S LEGAL CENTRE TRUST — Second Amicus Curiae
Heard on: 19 February 2009 | Decided on: 15 July 2009
For the Applicant: Advocate W Trengove SC and Advocate K Pillay, instructed by De Klerk and Van Gend.
For the Fifth Respondent: Advocate SL Shangisa and Advocate P Matshelo, instructed by the State Attorney.
For the First Amicus Curiae: Advocate K Pillay, instructed by the Legal Resources Centre.
For the Second Amicus Curiae: Advocate G Budlender SC and Advocate S Cowen, instructed by the Women’s Legal Centre Trust.
Introduction
The case of Hassam v Jacobs NO and Others (CCT 83/08) is a landmark decision by the Constitutional Court of South Africa that addresses the intersection of family law, constitutional rights, and religious practices. Delivered on 15 July 2009, the judgment examines the rights of widows in polygynous Muslim marriages — specifically their entitlement to recognition under the Intestate Succession Act and the Maintenance of Surviving Spouses Act. This article summarises the proceedings, key findings, and broader implications of a ruling that underscores the need for legal frameworks to adapt to the diverse cultural and religious practices within South African society.
Background
The Parties Involved
The applicant, Fatima Gabie Hassam, was married — according to Islamic law — to a man who had multiple spouses. Following her husband’s death, she sought recognition as a “spouse” and “surviving spouse” under the Intestate Succession Act and the Maintenance of Surviving Spouses Act. Johan Hermanus Jacobs NO, the first respondent, served as executor of the deceased’s estate, while the Master of the High Court was cited as the second respondent. The third and fourth respondents were relatives of the deceased, and the fifth respondent was the Minister for Justice and Constitutional Development.
Legal Context
The Intestate Succession Act 81 of 1987 is the primary legislative framework governing the distribution of a deceased person’s estate where no valid will exists. It delineates the rights and entitlements of spouses in the allocation of assets. However, the statutory definition of “spouse” had traditionally been interpreted to exclude individuals in polygamous marriages, thereby denying multiple spouses in such unions the legal protection and inheritance rights afforded by the Act.
The Maintenance of Surviving Spouses Act 27 of 1990 similarly establishes the entitlement of a surviving spouse to financial support following the death of a partner. While the Act aims to safeguard the economic well-being of surviving spouses, it likewise failed to accommodate polygamous marriages, recognising only one surviving spouse in such unions. This legislative gap highlighted ongoing challenges in aligning South African family law with the diverse cultural and marital practices prevalent in the country — particularly regarding the legal status and rights of spouses in polygamous relationships.
Initial Proceedings
Hassam approached the High Court seeking an order recognising her as a spouse and surviving spouse under the relevant Acts. She argued that the exclusion of widows from polygynous marriages from the definition of “spouse” constituted a violation of her constitutional rights, particularly the right to equality enshrined in section 9(3) of the Constitution of the Republic of South Africa, 1996.
High Court Ruling
The High Court acknowledged the discriminatory nature of the provisions but declined to declare them unconstitutional. Instead, the court indicated that the matter should be addressed through legislative reform. Unsatisfied with this outcome, Hassam appealed to the Constitutional Court, seeking a definitive ruling on the constitutionality of the relevant provisions.
Constitutional Court Proceedings
Hearing
The Constitutional Court heard the case on 19 February 2009. The court received submissions from various amici curiae, including the Muslim Youth Movement of South Africa and the Women’s Legal Centre Trust. Both organisations supported the applicant’s position, emphasising the need for legal recognition of polygamous marriages and the rights of women within those unions.
Legal Arguments
Hassam’s legal team argued that the exclusion of widows from polygynous marriages from the definition of “spouse” was discriminatory and violated the constitutional principles of equality and dignity. They contended that the law should reflect the realities of diverse marital practices in South Africa, in light of the country’s constitutional commitment to equality.
Notably, the respondents — including the Minister for Justice — did not oppose the confirmation of the declaration of invalidity of the impugned provisions, thereby acknowledging the need for legislative reform in this area.
Judgment
Key Findings
The Constitutional Court delivered a unanimous judgment, finding that the exclusion of widows from polygynous marriages from the definition of “spouse” in the Intestate Succession Act was unconstitutional. The court made several key findings:
Discrimination: The court concluded that the provisions of the Act unjustifiably infringed upon the rights of women in polygynous marriages, violating their right to equality. The court emphasised that the law must be interpreted in a manner that promotes equality and does not perpetuate discrimination based on marital status or gender.
Interpretation of “Spouse”: The court determined that the term “spouse” should be interpreted to include multiple spouses, reflecting the realities of polygamous marriages. This interpretation aligns with the constitutional values of dignity and equality, ensuring that all individuals — regardless of their marital arrangements — are afforded equal protection under the law.
Remedy: The court ordered that the definition of “spouse” in the Intestate Succession Act be amended to include surviving partners in polygynous marriages, providing immediate relief to those affected by the discriminatory provisions and guarding against similar injustices in future.
Order
The court’s order included the following key points:
The application for confirmation of the declaration of invalidity was granted.
The order made by the Western Cape High Court on 18 July 2008 was confirmed, declaring that section 1 of the Intestate Succession Act was inconsistent with the Constitution and invalid to the extent that it did not include the surviving partner in a polygynous Muslim marriage within the protection afforded to a “spouse.”
The court ordered that remedial words be read into the Act to cure the constitutional defect, ensuring that just and equitable relief was granted to all those affected — including a direction that, where a deceased is survived by more than one spouse, the calculation of a child’s share and the distribution of the intestate estate be carried out on a basis that recognises each surviving spouse equally.
Implications of the Judgment
The ruling in Hassam v Jacobs NO and Others has far-reaching implications for family law in South Africa. It underscores the importance of aligning legal definitions with the realities of diverse cultural and religious practices, and reinforces the constitutional commitment to equality and non-discrimination.
Legal Reform
The judgment highlighted the urgent need for legislative reform to address the complexities of family law in a multicultural society. The Minister for Justice acknowledged the necessity of reforming the law to better reflect the realities of polygamous marriages and the rights of women within those unions. The case thus serves as a catalyst for broader discussions about developing comprehensive legal frameworks that protect the rights of all individuals, regardless of their marital status or religious background.
Social Impact
The ruling carries significant social implications, particularly for women in polygamous marriages who have historically faced discrimination and marginalisation. By recognising their rights as spouses, the Constitutional Court’s decision empowers these women and affirms their dignity and worth within the legal system. It also encourages greater societal awareness of the diverse family structures that exist within South African society.
Conclusion
The Constitutional Court’s ruling in Hassam v Jacobs NO and Others represents a pivotal moment in the evolution of family law in South Africa. The decision not only addressed the immediate concerns of the applicant but also set a precedent for future cases involving similar questions of equality, religious practice, and the definition of legal personhood within marriage.
By affirming the rights of women in polygamous marriages and emphasising the principles of equality and non-discrimination, the court took a significant step towards ensuring that all individuals are afforded equal protection under the law. This case is a reminder of the ongoing need to align legislation with constitutional values — and of the power of the law to effect positive, lasting change in the pursuit of social justice.
Bibliography
Legislation
Intestate Succession Act 81 of 1987.
Maintenance of Surviving Spouses Act 27 of 1990.
Constitution of the Republic of South Africa, 1996, section 9(3).
Case Law
Hassam v Jacobs NO and Others (CCT 83/08) [2009] ZACC 19; 2009 (11) BCLR 1148 (CC); 2009 (5) SA 572 (CC) (15 July 2009).
Online Resources
