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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 40/03
JULEIGA DANIELS Applicant
versus
ROBIN
GRIEVE
MELISSA FOURIE NO Second Respondent
SORAYA DANIELS Third Respondent
ADELAH JAKOET Fourth Respondent
SHAHIEDA MANUEL Fifth Respondent
MOGAMAT SHARIEF MANUEL Sixth Respondent
SARAH DANIELS Seventh Respondent
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT Eighth Respondent
REGISTRAR OF DEEDS Ninth Respondent
MASTER OF THE HIGH COURT Tenth Respondent
Heard on : 6 November 2003
Decided on : 11 March 2004
JUDGMENT
SACHS J:
[1] This case concerns an application for confirmation of an order,[1] and, in the alternative, an appeal against the order[2] made by the High Court in Cape Town (the High Court) declaring certain provisions of the Intestate Succession Act[3] and the Maintenance of Surviving Spouses Act[4] unconstitutional and invalid for failing to include persons married according to Muslim rites as spouses for the purposes of these Acts.
[2] Section 1 of the Intestate Succession Act states:
“1. Intestate succession — (1) If after the commencement of this Act a person (hereinafter referred to as the “deceased”) dies intestate, either wholly or in part, and —
(a) is survived by a spouse, but not by a descendant, such spouse shall inherit the intestate estate;
(b) is survived by a descendant, but not by a spouse, such descendant shall inherit the intestate estate;
(c) is survived by a spouse as well as a descendant —
(i) such spouse shall inherit a child's share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed from time to time by the Minister of Justice by notice in the Gazette, whichever is the greater; and
(ii) such descendant shall inherit the residue (if any) of the intestate estate;
(d) . . . . ”
Section 2(1) of the Maintenance of Surviving Spouses Act states:
“2. Claim for maintenance against estate of deceased spouse — (1) If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefor from his own means and earnings.”
In terms of section 1 of the Maintenance of Surviving Spouses Act “survivor” is defined as “the surviving spouse in a marriage dissolved by death”. Although both Acts confer rights on spouses who are predeceased by their husbands or wives, in neither is the word “spouse” defined.
[3] The applicant married her now deceased husband by Muslim rites in 1977. The marriage, which was at all times monogamous, was not solemnised by a marriage officer appointed in terms of the Marriage Act.[5] No children were born of this marriage, though the applicant and her deceased husband had children from previous marriages. The deceased died intestate in 1994.
[4]
The main asset in the
deceased estate is a modest house in a low-income suburb of
[5]
Tenants of council houses
were later given the opportunity to purchase such houses, and in 1990 the
deceased entered into an instalment-sale
agreement to purchase the house from
the City of
[6] The second respondent and first respondent were thereafter respectively appointed in 2000 and 2001 by the tenth respondent, the Master of the High Court (the Master) as the executors,[8] the second respondent as executor of the estate of the deceased, and the first respondent as executor of the estate of a deceased son of the latter from his previous marriage. I will refer to them as the executors.
[7] The third to seventh respondents are interested family members. The eighth respondent is the Minister of Justice and Constitutional Development (the Minister). The ninth respondent is the Registrar of Deeds and the tenth respondent is the Master. None of these respondents oppose the application.
[8] The applicant was told by the Master that she could not inherit from the estate of the deceased because she had been married in terms of Muslim rites, and therefore was not a “surviving spouse”. A claim for maintenance against the estate was rejected on the same basis. With the support of the Women’s Legal Centre, the applicant approached the High Court for an order declaring that she was a spouse of the deceased and his survivor. In the alternative, she asked for the Acts to be declared unconstitutional to the extent that they discriminated unfairly against Muslim marriages.
Proceedings in the High Court
[9] The High Court reluctantly came to the conclusion that the applicant was not a “spouse” or “survivor” for the purposes of the Acts. This was because her marriage to the deceased was not recognised as a valid marriage in terms of South African law. Van Heerden J held that:
“[M]arriages by Muslim rites have . . . not been recognised by South African courts as valid . . . marriages, firstly, because such marriages are potentially polygamous and hence contrary to public policy (whether or not the actual union is in fact monogamous) and secondly, because such marriages are not solemnised by authorised marriage officers in accordance with the provisions of the Marriage Act 25 of 1961”.[9]
[10] In reaching her conclusion, van Heerden J considered herself bound by the decisions of this Court on the interpretation of the word “spouse” in the National Coalition (2)[10] case and in Satchwell.[11] She was of the view that these cases made it clear that the term “spouse” only applied to parties to a marriage recognised as valid in terms of South African law.[12] A second consideration was the existence of a number of statutes where express provision for the inclusion of the parties to a Muslim union had been made, for example – the Estate Duty Act[13] as amended. By explicitly creating exceptions to the general rule that the only marriages to which legal consequences are attached are those solemnised in accordance with the provisions of the Marriage Act, these statutes supported the view that in the absence of any such deeming or interpretative provision, the word “spouse” must be given its “traditional, limited meaning”. In her view, accordingly, the statutes as they stand could not be interpreted to include parties to Muslim marriages under the term “spouses”. Amendments to provide the broader meaning lay in the hands of the legislature.[14]
[11] The learned judge went on to consider the constitutional consequences of such an interpretation. After a comprehensive contextual analysis of the impact of the Acts, she concluded that the interplay between the applicant’s religious beliefs and the cultural practices in her community – and the failure of South African law properly to accommodate such beliefs and practices – resulted in the applicant being denied relief.[15] As a result, the omission of people such as the applicant from the protection provided by the statutes, violated their rights to equality and was unconstitutional and invalid. The learned judge held that until such time as Muslim personal law of succession was recognised by the legislature and regulated in a manner consistent with the values underlying the South African Constitution, there was no justification for the limitation of the equality rights.[16] Following the approach adopted by this Court in National Coalition (2),[17] she accordingly “read-in” words to remedy the defect.
[12] The order of the High Court that is before us for confirmation reads as follows:
“1. The omission from section 1(4) of the Intestate Succession Act 81 of 1987 of the following definition is declared to be unconstitutional and invalid: “‘spouse’ shall include a husband or wife married in accordance with Muslim rites in a de facto monogamous union”.
2. Section 1(4) of the Intestate Succession Act 81 of 1987 is to be read as though it included the following paragraph after paragraph (f):
“(g) ‘spouse’ shall include a husband or wife married in accordance with Muslim rites in a de facto monogamous union.”
3. The orders in paragraphs 1 and 2 above shall have no effect on the validity of any acts performed in respect of the administration of an intestate estate that has been finally wound up by the date of this order.
4. The omission from the definition of ‘survivor’ in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 of the words ‘and includes the surviving husband or wife of a de facto monogamous union solemnised in accordance with Muslim rites’ at the end of the existing definition, is declared to be unconstitutional and invalid.
5. The definition of “survivor” in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 is to be read as if it included the following words after the words ‘dissolved by death’: ‘and includes the surviving husband or wife of a de facto monogamous union solemnised in accordance with Muslim rites.’”[18]
[13] The applicant was concerned that this Court might refuse to confirm the declaration of invalidity,[19] and that she might end up without the relief she desired. She accordingly applied in the High Court for leave to appeal against the interpretation given to the word “spouse”, should the application for confirmation fail.[20] Binns-Ward AJ, who heard the application, indicated that a contextual and purposive reading of the Acts could well lead to this Court deciding to refuse to confirm the orders of constitutional invalidity, on the grounds that the proper construction of the statutes allows for the applicant to be recognised as a “spouse” or “survivor”. In such a case there might not be a need for an appeal because the reasoning of the Court would itself indicate that parties to Muslim marriages were covered by the Acts.[21] He nevertheless granted conditional leave to appeal as requested by the applicant.
[14] To avoid uncertainty it should be made clear that an appeal to this Court against a declaration of constitutional invalidity made by a competent court under section 172(2)(a) of the Constitution lies as of right in terms of section 172(2)(d) and does not require leave of the court making the declaration or this Court.[22]
[15] The applicant’s appeal was lodged nine days late. Condonation for this delay which caused no prejudice has been requested, has not been opposed, and is granted.
Argument in this Court
[16] Counsel for the applicant relied primarily on the appeal rather than on the application for confirmation. His principal argument was that the word “spouse” should be interpreted so as to include persons married according to Muslim rites; not only did the literal meaning of the word “spouse” include people in the position of the applicant, but also a purposive interpretation of the Acts pointed in that direction. Any interpretation which gave a narrow meaning to the word “spouse” so as to exclude parties to a Muslim marriage resulted in unfair discrimination on grounds of marital status, religious practices and culture and violated the right to dignity. An interpretation consistent with the Constitution should be preferred to one which led to invalidity.
[17] The Minister supported confirmation of the High Court order, and was not in favour of interpreting the word “spouse” so as to include a party to a Muslim marriage.
[18]
The executors, on the
other hand, contended that the word “spouse” did not cover parties to a Muslim
marriage, and further,
that what they regarded as the correct interpretation of
the Acts did not render the provisions unconstitutional. In their
view no
violation of the right to equality was involved. They argued that Imams
are not barred from being registered as marriage
officers under the Marriage
Act and therefore are able to conclude a valid marriage.[23]
They contended further that the Marriage Act constituted legislation envisaged
in the interim Constitution[24] recognising
the validity of marriages concluded under systems of religious law.
Muslim couples therefore have the choice
to conclude marriages that are
recognised in terms of South African law. The executors acknowledged that
if their argument
was upheld, the applicant in the present matter would end up
with no relief at all. She would not be entitled to the protection
offered by the Acts because she was not lawfully married and therefore not a
spouse. Nor could she secure any benefits conferred
under Muslim personal
law, because such law was not recognised and enforceable in the courts.
They argued, however, that
this unfortunate consequence was a result of her
failure to avail herself of her rights under the Marriage Act, and not because
of any defects in the Acts under consideration. In their view this Court
should refuse to confirm the order of the
The meaning of “spouse”
[19] The word “spouse” in its ordinary meaning includes parties to a Muslim marriage. Such a reading is not linguistically strained. On the contrary, it corresponds to the way the word is generally understood and used. It is far more awkward from a linguistic point of view to exclude parties to a Muslim marriage from the word “spouse” than to include them. Such exclusion as was effected in the past did not flow from courts giving the word “spouse” its ordinary meaning. Rather, it emanated from a linguistically strained use of the word flowing from a culturally and racially hegemonic appropriation of it. Such interpretation owed more to the artifice of prejudice[25] than to the dictates of the English language. Both in intent and impact the restricted interpretation was discriminatory, expressly exalting a particular concept of marriage, flowing initially from a particular world-view, as the ideal against which Muslim marriages were measured and found to be wanting.
[20] Discriminatory interpretations deeply injurious to those negatively affected[26] were in the conditions of the time widely accepted in the courts. They are no longer sustainable in the light of our Constitution. In Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In Re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others[27] Langa DP stated that:
“The Constitution is located in a history which involves a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens, and includes all in the process of governance. As such, the process of interpreting the Constitution must recognise the context in which we find ourselves and the Constitution’s goal of a society based on democratic values, social justice and fundamental human rights. This spirit of transition and transformation characterises the constitutional enterprise as a whole.
. . . The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution.”[28]
[21] In the present matter the constitutional values of equality, tolerance and respect for diversity point strongly in favour of giving the word “spouse” a broad and inclusive construction, the more so when it corresponds with the ordinary meaning of the word. The issue is not whether to impose some degree of strain on the language in order to achieve a constitutionally acceptable result. It is whether to remove the strain imposed by past discriminatory interpretations in favour of its ordinary meaning.[29]
[22] A contextual analysis of the manner in which the word “spouse” is used in the two Acts reinforces the justification for this approach. An important purpose of the statutes is to provide relief to a particularly vulnerable section of the population, namely, widows. Although the Acts are linguistically gender-neutral, it is clear that in substantive terms they benefit mainly widows rather than widowers. The value of non-sexism is foundational to our Constitution[30] and requires a hard look at the reality of the lives that women have been compelled to lead by law and legally-backed social practices. This, in turn, necessitates acknowledging the constitutional goal of achieving substantive equality between men and women.[31] The reality has been and still in large measure continues to be that in our patriarchal culture men find it easier than women to receive income and acquire property. Moreover, social and institutional practice has been to register homes in the name of the male “heads of households”, as was done by the Council in the present matter. Widows for whom no provision had been made by will or other settlement were not protected by the common law.[32] The result was that their bereavement was compounded by dependence and potential homelessness – hence the statutes.
[23] The present case illustrates well why statutory protection was deemed necessary. A long-standing dispute between the applicant and some of the descendants of the deceased has resulted in her facing eviction from the home that was originally hers, and in which she has lived for three decades. The applicant signed her affidavit with a cross. She does not belong to that section of society that has lawyers at hand to draft wills and arrange property settlements. In any event, it did not lie in her hands to compel the deceased to make provision for her. The Acts were introduced to guarantee what was in effect a widow’s portion on intestacy as well as a claim against the estate for maintenance. The objective of the Acts was to ensure that widows would receive at least a child’s share instead of their being precariously dependent on family benevolence. There seems to be no reason why the equitable principles underlying the statutes should not apply as tellingly in the case of Muslim widows as they do to widows whose marriages have been formally solemnised under the Marriage Act. The manifest purpose of the Acts would be frustrated rather than furthered if widows were to be excluded from the protection the Acts offer, just because the legal form of their marriage happened to accord with Muslim tradition and not the Marriage Act.
[24] This was the reasoning underlying the decision in Amod,[33] which concerned the rights of a Muslim widow to claim relief from the Multilateral Motor Vehicle Accidents Fund. Mahomed CJ held that the insistence that the duty of support which a serious de facto monogamous marriage imposed on the husband was not worthy of protection, could only be justified on the basis that the only duty of support which the law will protect in such circumstances was a duty flowing from a marriage solemnised and recognised by one faith or philosophy to the exclusion of others.[34] This was inconsistent with the new ethos of tolerance, pluralism and religious freedom which had consolidated itself even before the adoption of the interim Constitution.[35] Dealing with the argument that Muslim couples suffered no special discrimination because they were free to solemnise their marriages in terms of the Marriage Act and thus acquire for their relationship the status of a civil marriage, he held that for purposes of the dependant's action the decisive issue was not whether the dependant concerned was or was not lawfully married to the deceased but whether the deceased was under a legal duty to support the dependant in a relationship which deserved recognition and protection at common law.[36] In the English case of Din v National Assistance Board[37] Salmon L J reasoned along similar lines, stating that:
“When a question arises, of recognising a foreign marriage or of construing the word ‘wife’ in a statute, everything in my view depends on the purpose for which the marriage is to be recognised and the objects of the statute. I ask myself first of all: is there any good reason why the appellant’s wife and children should not be recognised as his wife and children for the purpose of the National Assistance Act, 1948? I can find no such reason, and every reason in common-sense and justice why they should be so recognised.”[38]
[25] The same considerations apply in the present matter. The central question is not whether the applicant was lawfully married to the deceased, but whether the protection which the Acts intended widows to enjoy should be withheld from relationships such as hers. Put another way, it is not whether it had been open to the applicant to solemnise her marriage under the Marriage Act, but whether, in terms of “common sense and justice” and the values of our Constitution, the objectives of the Acts would best be furthered by including or excluding her from the protection provided. The answer, as in Amod, must be in favour of the interpretation which is consistent with the ordinary meaning of the word “spouse”, aligns itself with the spirit of the Constitution and furthers the objectives of the Acts.
[26] It is important to underline the limited effect of such an inclusive interpretation. As in Amod, it eliminates a discriminatory application of particular statutes without implying a general recognition of the consequences of Muslim marriages for other purposes. Accordingly, the recognition which it accords to the dignity and status of Muslim marriages for a particular statutory purpose, does not have any implications for the wider question of what legislative processes must be followed before aspects of the shariah may be recognised as an enforceable source under South African law.[39]
[27] The fact that many statutes adopted in recent times[40] dealing with married persons expressly include parties to Muslim unions under their provisions is indicative of a new approach consistent with constitutional values. The existence of such provisions in other statutes does not imply that their absence in the Acts before us has special significance. The Intestate Succession Act and the Maintenance of Surviving Spouses Act were both last amended before the era of constitutional democracy arrived. The fact that the new democratic Parliament has not as yet included Muslim marriages expressly within the purview of the protection granted by the Acts, accordingly, cannot be interpreted so as to exclude them contrary to the spirit, purport and objects of the Constitution.
[28] I turn now to the reasoning which caused van Heerden J “with considerable reluctance” to hold that Muslim husbands and wives could not for the purposes of the Acts be considered as spouses. The issue before her was whether the Court could give an extensive interpretation to the word spouse, and so avoid discriminatory impact, or whether the word was not reasonably capable of such interpretation, with the result that the discriminatory effect of the Acts could only be cured by a declaration of invalidity coupled with a “reading-in” to include Muslim marriage partners. In this respect she felt she was bound by decisions of this Court to the effect that the undefined word “spouse” in the Aliens Control Act[41] and the Judges’ Remuneration and Conditions of Employment Act[42] respectively, could not be extended to include permanent same-sex life partners. She states that in the National Coalition case (2):
“. . . Ackermann J, writing for the full court, held that the word “spouse”, as used in section 25(5) of the Aliens Control Act 96 of 1996, was not reasonably capable of a broad construction so as to include partners in permanent same-sex life partnerships. The word “spouse” was not defined in the Act, but its ordinary meaning connoted a “married person: a wife, a husband” and the context in which “spouse” was used in section 25(5) did not suggest a wider meaning. While some of these statements by Ackermann J may possibly be construed as supporting the interpretive arguments relied upon by the applicants in the present proceedings, it is important to note that Ackermann J went further by stating (at paragraph [25]) that there was no indication that the word “marriage” as used in the Aliens Control Act extended “any further than those marriages that are ordinarily recognised by our law” . . . .”[43]
She then goes on to add:
“. . . i.e. marriages that are solemnised in accordance with the provisions of the Marriage Act 25 of 1961.”[44]
She continues by stating that the interpretive point of departure in Satchwell was the same, quoting the following passage from the judgment of Madala J:
“In the circumstances the ordinary wording of the provisions [of the Judges’ Remuneration and Conditions of Employment Act] must be taken to refer to a party to a marriage that is recognised as valid in law and not beyond that. . . . The context in which “spouse” is used in the impugned provisions does not suggest a wider meaning, nor do I know of one. Accordingly, a number of relationships are excluded, such as same-sex partnerships and permanent life partnerships between unmarried heterosexual cohabitants.”[45]
[29] In my view, a proper reading of National Coalition (2) and Satchwell does not lead to the conclusion that partners to a Muslim marriage do not fall under the term “spouse”.
[30] In the first place, there is no express statement in either judgment referring to solemnisation under the Marriage Act as a pre-condition for parties to be considered to be spouses. For the purposes of the statutes being construed in those cases, it was in fact not necessary to go beyond holding that permanent same-sex life partners could not reasonably be included in the term “spouse”; as Ackermann J pointed out, the ordinary meaning of the word “spouse” connoted a “married person; a wife, a husband”. The difficulty confronting permanent same-sex life partners on this score, then, was that they could not ordinarily be considered to be married persons, husbands and wives. The position of people married by Muslim rites in this respect is different. They fall within the ordinary meaning of the word spouse. They are married to each other, wife and husband. As Mahomed CJ pointed out in Amod:
“. . . the Islamic marriage between the appellant and the deceased was a de facto monogamous marriage; . . . it was contracted according to the tenets of a major religion; and . . . it involved ‘a very public ceremony, special formalities and onerous obligations for both parents in terms of the relevant rules of Islamic law applicable’.”[46]
[31] Secondly, the judgments in both cases were careful to underline that the word “spouse” had to be interpreted in the context of the particular statutes under consideration. In both cases the judgments indicated that there was nothing in the context in which the word “spouse” was used to suggest a wider meaning than married persons. In National Coalition (2) it was indicated that there was a significant textual pointer against the more extensive use of the word spouse. Ackermann J stated that:
“Had the word ‘spouse’ been used in a more extensive sense in s 25(5) of the Act, it would have been unnecessary to provide specifically in s 1(1) that marriage ‘includes a customary union’. It is significant that the definition of ‘customary union’ namely:
‘. . . the association of a man and a woman in a conjugal relationship according to indigenous law and custom, where neither the man nor the woman is party to a subsisting marriage, which is recognised by the Minister in terms of ss (2);’
is based on an opposite-sex relationship.”[47]
In the present matter, however, no such textual pointers in favour of a limited construction exist. On the contrary, both the clear wording of the Acts and their purpose point strongly in favour of an extensive interpretation of the word “spouse”.
[32] Thirdly, it cannot be said that Muslim marriages lack legal recognition in the way that permanent same-sex unions have done. Statutes dealing with a great variety of social and economic questions have given express recognition to Muslim unions, treating parties to them as married persons.[48]
[33] Judgments should not be read as though they are statutes where every word is presumed to have a precise and special meaning. What matters is the reasoning that lies at the heart of the decision and that, as a matter of legal logic, leads to the order made. Central to the determinations in National Coalition (2) and Satchwell, was a legal finding that it would place an unacceptable degree of strain on the word “spouse” to include within its ambit parties to a permanent same-sex life partnership. Thus, in Satchwell Madala J pointed to members of such same-sex partnerships as well as to heterosexual couples who chose not to marry, as belonging to a class of persons who could not be considered to be “spouses”. The crucial distinction underlying the two judgments is the one made between married and unmarried persons, not that between persons married under the Marriage Act and those not. There is nothing to indicate that the attention of the Court in either case was directed to marriages such as those contracted by the applicant. I accordingly do not agree that the two cases serve as authority for denying to parties to Muslim marriages the protection offered by the Acts. Ngcobo J has come to the same conclusion. I would like to express my agreement with the supplementary reasons he has advanced.
[34] The fact that permanent same-sex life partnerships could not be included in the term “spouse” affected the manner in which the resulting discriminatory impact of the statutes under consideration was remedied in National Coalition (2) and Satchwell. Once it was established that members of permanent same-sex life partnerships, although not classifiable as married people, merited the same recognition as is accorded by the law to married persons, the indicated remedy was to declare the unconstitutionality and read-in a provision to cure the defect. Thus, recognition of the right to equality and dignity of permanent same-sex life partners was achieved not by means of imposing undue strain on the word “spouse”, but by pointing to the constitutionally unacceptable manner in which the statutes fail to treat them on a par with married people. Such partners were accordingly equated with, rather than subsumed into the concept of spouses. The under-inclusiveness in their regard was cured by adding to the category of entitlement so as to avoid unconstitutionality. In the present matter the potential under-inclusiveness and consequent discriminatory impact is avoided simply by correcting the interpretation. It is not necessary to follow the process the High Court felt compelled to do, that is, of making a declaration of invalidity coupled with a curative remedial reading-in.
[35] Acceptance of the fact that the word “spouse” covers people married by Muslim rites makes it unnecessary to deal with the submission advanced by the executors that the law did not discriminate against the applicant because in terms of the Marriage Act she could have solemnised her marriage before an Imam recognised as a marriage officer. The question of discrimination no longer arises once Muslim husbands and wives are able to enjoy the benefits provided by the Acts.
[36] It was made clear on the papers and in argument that the effect of the declaration sought was to cover the situation of the applicant who was a party to a Muslim marriage that was monogamous. This Court is not called upon to deal with the complex range of questions concerning polygamous Muslim marriages.
[37] In the result, the Acts fall to be interpreted so as to include a party to a monogamous Muslim marriage as a spouse. So interpreted, they are not invalid and unconstitutional. The order of the High Court should accordingly not be confirmed. Instead, the appeal must be upheld and a declaration made indicating to the executors and all interested parties that the applicant is a “spouse” and a “survivor” under the Acts.
[38] The High Court declaration of invalidity coupled with a remedial reading-in was expressly declared not to affect estates already wound up. It is not necessary for the purposes of this case to deal with the possible retrospective effect of upholding the appeal. No pronouncement is made on whether in the absence of a declaration of invalidity, this Court is empowered to limit the retrospective effect of the declaration. Should problems concerning retrospectivity arise, they stand to be dealt with on a case by case basis.
[39] No award of costs was asked for.
The Order
[40] The following order is made:
1. The order made by the High Court is set aside and replaced with the following order:
“(a) It is declared that:
(i) the word “spouse” as used in the Intestate Succession Act 81 of 1987, includes the surviving partner to a monogamous Muslim marriage;
(ii) the word “survivor” as used in the Maintenance of Surviving Spouses Act 27 of 1990, includes the surviving partner to a monogamous Muslim marriage.
(b) It is declared that:
(i) the applicant is, for the purpose of the Intestate Succession Act 81 of 1987, a “spouse”;
(ii) the applicant is, for purposes of the Maintenance of Surviving Spouses Act 27 of 1990, a “survivor”.
(c) No order as to costs is made.”
2. No order as to the costs of the appeal or the confirmation application is made.
Chaskalson CJ, Langa DCJ, Ackermann J, Mokgoro J, Ngcobo J, O’Regan J and Yacoob J concur in the judgment of Sachs J.
NGCOBO J:
Introduction
[41] I have read the judgments prepared by my colleagues Moseneke and Sachs JJ. I agree with the order proposed in the judgment of Sachs J. However, I prefer to approach the matter differently. In particular, I wish to elaborate on my reasons for that agreement and for my not agreeing with the conclusion reached by Moseneke J.
[42] I propose to deal with two questions. First, what is the proper approach to the interpretation of legislation under our constitutional democracy; and second, do our decisions in the National Gay and Lesbian Coalition[1] and Satchwell[2] cases preclude us from upholding the appeal?
Proper approach to legislative interpretation
[43] Section 39(2) of the Constitution contains an injunction on the interpretation of legislation. It requires courts when interpreting any legislation to “promote the spirit, purport and objects of the Bill of Rights.” Consistent with this interpretive injunction, where possible, legislation must be read in a manner that gives effect to the values of our constitutional democracy. These values include human dignity, equality and freedom. Thus where legislation is capable of more than one plausible construction, the one which brings the legislation within constitutional bounds must be preferred.
[44] In Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In Re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others, this Court explained the meaning of this interpretive injunction as follows:[3]
“This means that all statutes must be interpreted through the prism of the Bill of Rights. All law-making authority must be exercised in accordance with the Constitution. The Constitution is located in a history which involves a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens, and includes all in the process of governance. As such, the process of interpreting the Constitution must recognise the context in which we find ourselves and the Constitution’s goal of a society based on democratic values, social justice and fundamental human rights. This spirit of transition and transformation characterises the constitutional enterprise as a whole.
The purport and objects of the Constitution find expression in section 1, which lays out the fundamental values which the Constitution is designed to achieve. The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution.”
[45] Courts are therefore under an obligation, where possible, to construe legislation in a manner that promotes the spirit, purport and objects of the Bill of Rights. The Bill of Rights is a cornerstone of our constitutional democracy. It “enshrines the rights of all people in our country” and affirms the foundational values of human dignity, equality and freedom.[4] Courts must give expression to these foundational values when construing any legislation. They must interpret legislation so as to give effect to these fundamental values and to the specific provisions of the Bill of Rights which encompass them. Legislation must now been seen through the prism of the Constitution. The Constitution provides the context within which all legislation must be understood and construed.[5]
[46] However, as this Court noted in the Hyundai case, there are limits to the application of this interpretive injunction. While there will be occasions when legislation, though open to a meaning which will be unconstitutional, is reasonably capable of being read in conformity with the Constitution “[such] an interpretation should not, however be unduly strained.”[6] It follows therefore that courts “must prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section.”[7]
[47] Obviously, when dealing with old order legislation, this interpretive injunction may require courts to depart from a construction previously placed on the legislation. This departure is required because the context in which legislation must now be construed is different to that which prevailed when these cases were decided. These cases must be understood in the context in which they were decided, and in particular, the values that were prevailing at the time.
[48]
The
context in which old order legislation was construed during the
pre-constitutional era was very different from the present era.
Old order
legislation was previously construed in the context of a legal order that did
not respect human dignity, equality and
freedom for all people. Discrimination
fuelled by prejudice was the norm. Black people were denied
respect and dignity. They were regarded as inferior to other races.[8] The
decision of the Appellate Division in the case of Moller v
[49]
In
that case the central question was whether a child born of a white and a black
was a child of “European parentage or extraction”
within the meaning of the
Cape School Board Act of 1905.[10] The
phrase “European parentage or extraction” was not defined in the relevant
statute. And as one member of the
court in that case accepted, it was
“possible to read it in two ways, either as meaning wholly European extraction,
or partly
of European extraction.”[11] The
court construed the phrase to mean “of pure European descent” or “unmixed
European parentage or extraction.”
In so doing the court denied black
children born of mixed marriages the right to attend ordinary public schools in
the
[50] Lord de Villiers CJ who wrote the main judgment explained the rationale for the decision as follows:[12]
“Now, in
construing a vague expression in a statute, like that of “European parentage or
extraction or descent,” the Court
should endeavour to ascertain its popular
sense and place itself as far as possible in the position of the authors of the
enactment.
As a matter of public history we know that the first civilised
legislators in
And then continued:
“These
prepossessions, or, as many might term them, these prejudices, never have died
out, and are not less deeply rooted at the
present day among the Europeans in
South Africa, whether of Dutch or English or French descent. We may not from a
philosophical
or humanitarian point of view be able to approve this prevalent
sentiment, but we cannot, as judges, who are called upon to construe
an Act of
Parliament, ignore the reasons which must have induced the legislature to adopt
the policy of separate education for
European and non-European children.
In consenting to the passing of a Bill requiring separate schools for children
of European
extraction, the average legislator would not understand the
expression “children of European extraction” to include children
of mixed
European and non-European extraction. His objection to his child being
educated in the same school with a child
whose mother was coloured and whose
maternal grandmother was a native would be almost as great as to his child
associating at school
with black children. It is certainly inconceivable
that he would be a consenting party to an Act by which European parents
could
be compelled to send their children to a school which children of mixed origin
can also be compelled to attend. It
is regrettable that there should be this
social chasm between the races, but it undoubtedly exists, and it has had its
effects
on legislation throughout
[51] On the basis of this assumption Blacks were denied most, if not all basic human rights that we now take for granted. They were discriminated against. Their cultures and laws were not recognised except when they conformed to “the boni mores” of the “civilised peoples”. Their marriages were not recognised. The law reflected the values of one section of society which constituted the minority. It is within this context that the old order legislation was construed in the pre-constitutional era.
[52]
It
is within this context that cases such as Seedat’s Executors[15] and Ismail[16] must be
understood. These cases reflect the values of one section of our
society. In Seedat’s Executors case, the court
declined to recognise a widow of a Muslim marriage as a “surviving spouse”
because a Muslim marriage was “repugnant
to the policy and the legal
institution both of
[53] Similarly, in Ismail’s case, and relying on the Seedat’s Executors case, the court refused to recognise a marriage by Muslim rites. The central issue in that case was whether the proprietary consequences of such a marriage and its termination according to Muslim law were enforceable in law. The marriage in that case was de facto monogamous. The court reasoned, however, that a Muslim marriage is potentially polygamous. The court held that such marriages are “contrary to the accepted customs and usages which are regarded as morally binding upon all members of our society.”[19] It found that there were no reasons for it to depart “from the long line of decisions in which our [courts] have consistently refused, on grounds of public policy, to recognise, or to give effect to the consequences of, polygamous unions.”[20]
[54] The new constitutional order rejects the values upon which these decisions were based and affirms the equal worth and equality of all South Africans. The recognition and protection of human dignity is the touchstone of this new constitutional order. The new constitutional order is based on the recognition of our diversity and tolerance for other religious faiths. It is founded on human dignity, equality and freedom. These founding values have introduced new values in our society. The process of interpreting legislation must recognise the context in which we find ourselves and the constitutional goal of establishing a society based on democratic values, social justice and fundamental human rights.
[55] And these values are given expression in the relevant provisions of the Bill of Rights which contains the fundamental human rights. Thus our Bill of Rights guarantees, among other things, freedom of religion. In particular, it prohibits discrimination based on religion, conscience, belief or culture.[21] Section 15(3)(a) of the Constitution permits the recognition of “marriages concluded under any tradition or a system of religion, personal or family law.”[22] The founding values as given expression in the Bill of Rights now provide the context within which legislation must be construed. The interpretive injunction contained in section 39(2), namely, that when interpreting any legislation courts must promote the spirit, purport and objects of the Bill of Rights must be understood in this context.
[56] Our Constitution contemplates that there will be a coherent system of law built on the foundations of the Bill of Rights, in which common law and indigenous law should be developed and legislation should be interpreted so as to be consistent with the Bill of Rights and with our obligations under international law. In this sense the Constitution demands a change in the legal norms and the values of our society. This change is indeed reflected in a number of statutes which now expressly recognise Muslim marriages for the purposes of the rights that they vest in spouses.[23] In my view the word “spouse” in the statutes under consideration must be construed to reflect this change. It follows therefore that the word “spouse” must now be construed in a manner that is consistent with the foundational values of human dignity, equality and freedom.
[57] Thus the word “spouse” in the Intestate Succession Act[24] and the Maintenance of Surviving Spouses Act,[25] is not defined. It must therefore now be given its ordinary meaning unless the context suggests otherwise. I agree with Sachs J that the ordinary meaning of the word “spouse” includes parties to a Muslim marriage. I can find nothing in the word “spouse” to suggest that it excludes spouses of a marriage by Muslim rites. Nor is there anything in the object or the purpose of these statutes to suggest that. Both these statutes were intended to provide the surviving spouse with a claim for maintenance against or claim for a share in the estate of the deceased spouse. A construction of the word “spouse” to include parties to a Muslim marriage is consistent with this object.
[58]