On 14 September 2017, the High Court in Cape Town handed down a judgment that declared that the law’s failure to recognise persons in polygamous marriages for purposes of inheritance was unconstitutional.

The case concerned two women, Amina Harnaker and Fareida Harnaker who both married the same man, Osman Harnaker under Islamic law. Both wives consented to entering and living in a polygamous marriage. In 1982, Mr Harnakar wanted to apply for a specific kind of home loan and in order to qualify, he had to be married.  Unfortunately, at the time and still today, Muslim marriages are not recognised. Mr Harnakar decided to then marry Amina under the Marriages Act in order to qualify for the loan and Fareida agreed. The marriage between Mr Harnakar and Fareida was never formalised and recognised under South African law.

When Mr Harnakar died, an issue arose as to who would be able to inherit. Mr Harnakar had left a will which would see his estate divided up according to Islamic Law. However, all of his children declined to inherit and, under Islamic law, this would have meant that the property would be divided equally between his two wives.

However, the Registrar of Deeds refused to transfer ownership of the family home to Fareida, the second wife because she did not qualify as a ‘surviving spouse’ under section 2C(1) of the Wills Act. The reasons for this was that her marriage to Mr Harnakar was not recognised under South African law. Following this, both Amina and Fareida Harnakar applied to court to have the Wills Act declared unconstitutional because it did not recognise spouses in Muslim marriages.

The wives argued that this non-recognition violated their constitutional right to equality because it treated Muslim marriages differently to civil marriages and marriages under African customary law. As a result, the Wills Act unfairly discriminated against people based on their marital status and religion.

The Women Legal Center Trust, who are currently fighting a case to have Muslim marriages recognised under South African law, acted as friends of the court in the case. They argued that the non-recognition of Muslim marriages left women especially vunerable and marginalised, causing undue hardship that women in legally-recognised marriages do not face. The WLC also mentioned cases where Muslim marriages were recognised for purposes of spousal maintenance and intestate succession (inheritance without a will).

The court found that is was ‘constitutionally unacceptable and unjust’ to deny a widow in a Muslim marriage the benefits given to a widow in a civil marriage. As a result, the court found that section 2C(1) of the Wills Act was an unjustifiable infringement of the right to equality.  To fix this infringement, the court expanded the definition of ‘surviving spouse’ in the Wills Act to include both husbands and wives in monogamous and polygamous Muslim marriages.

The court then declared that Farieda was a surviving spouse under the Wills Act and ordered the Registrar of Deeds to register the property in the names of both Amina and Fareida Harnakar.  However, the court specifically stated that it’s decision would not affect estates that had been finally wound up (closed) under South African law.

However, the entirety of the court order is suspended until the decision can be confirmed by the Constitutional Court so, for the time being, spouses in polygamous Muslim marriages will remain unrecognised when it comes to inheritance with a valid will.

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