Mulsim polygamy case goes to court
February 18 2009 at 05:59PM
Pretoria - The Constitutional Court will hear an application on Thursday to confirm an order of constitutional invalidity relating to a polygamous Muslim marriage.
The court said on Wednesday the application would be brought by Fatima Gabie Hassam for the confirmation of a Cape High Court order.
In the lower court Hassam argued that after her husband's death the executor for his estate refused her claims because he disputed the existence of her marriage.
She then applied to the high court challenging the validity of some of the provisions of the Intestate Succession Act (ISA) and the Maintenance of Surviving Spouses Act (MSSA).
This was on the grounds that they unfairly excluded widows in polygamous Muslim marriages from the benefits provided for in those statutes by excluding them from the concepts of "spouse" and "survivor".
The high court declared section 1(4)(f) of the ISA to be inconsistent with the Constitution to the extent that it made provision for only one spouse in a Muslim marriage to be an heir.
It held that the term "spouse" in that Act should be interpreted to include spouses in polygamous Muslim marriages.
It also ruled that the mechanism used to calculate the share of the estate -- to which such spouses are entitled -- must be reformulated to give effect to such spouses' constitutional rights.
The court further declared that the word "survivor" in the MSSA should be read to include surviving partners of polygamous Muslim marriages.
"In the confirmation proceedings before this Court the applicant contends that the exclusion of widows in polygamous Muslim marriages from the benefits provided for in the ISA and MSSA infringes their constitutional rights to equality, religion and culture," said the Constitutional Court.
Hassam seeks confirmation of the declaration of constitutional invalidity made by the high court.
"The applicant has filed a draft order which she wishes the Constitutional Court to make.
"The draft order declares section 1 of the ISA to be inconsistent with the Constitution and invalid to the extent that it does not include the surviving partner in a polygamous Muslim marriage and proposes a new construction of the ISA.
The respondents, who include Justice Minister Enver Surty, do not oppose the application.
The Muslim Youth Movement and the Women's Legal Trust Centre have been admitted as amici curiae (friends of the court).
They generally align themselves with the submissions of the applicant, the court said. - Sapa