When I read about what our Constitutional Court has done this week, i am proud to be South African.
When a widow like Fatima Hassam is not awared anything from her late husband’s estate, because she is one of two wives, you know something is wrong.
When the South African Constitutional court rectifies this, retroactively to 1994, then you know that common sense has prevailed.
Viva the ConCourt, Viva!
(the below is copied from the website of The Cape Times in the interests of spreading the good news http://www.capetimes.co.za/index.php?fArticleId=5084665)
Court ruling ensure equal estate rights
Victory for Muslim widow
July 16, 2009 Edition 2
Fatima Gabie Hassam lost everything when her husband died without a will – leaving her, as a spouse in a polygynous Muslim marriage, with no legal claim to his estate.
Left homeless and having to sell toffee apples at flea markets to survive, the Cape Town grandmother says she had “breakdown after breakdown” after her husband died of a heart attack and the Muslim Judicial Council found she had no right to inherit from his estate.
But Hassam did not give up and embarked on what was to become a five-year court quest to ensure that a Muslim woman in a polygynous marriage could inherit from the estate of her husband if he died intestate.
Yesterday, the Constitutional Court’s 11 justices unanimously ruled in favour of the Hassan, 63.
“I’m the happiest woman in the world today,” Hassam said yesterday.
“I never expected this.”
Mother-of-four Hassam, who worked for 36 years in her husband’s shop before she was widowed, said she would now file a claim for a portion of her husband’s estate.
“But tonight I’m celebrating with my family. I want to eat at a really nice restaurant.”
Hassam said that she had come under “a lot” of pressure from certain members of the Muslim community to drop her challenge to the Intestate Succession and Maintenance of Surviving Spouses Acts.
“People told me to throw in the towel, but I didn’t listen.
“Now I know that everything I went through was worth it because all the other women who are like me have a chance to get what is owed to them.
“I persevered for them, not just myself.”
Hassam says she did not know or agree to her husband Ebrahim’s taking a second wife a year before his death.
“I came home from visiting my mother in Saudi Arabia (and) when he met me at the airport (he) told me he had married another girl from Worcester.
“I told him to go and live with her, and so he moved out.
“After he died, I arranged his funeral and mourned for him for a 100 days.
“And then everything fell apart.”
Her husband’s estate was awarded to his second wife.
Hassam saved as much money as she could and hired attorney Igshaan Higgins to fight her cause.
She also sought the help of the Women’s Legal Centre, which took her case to the Western Cape High Court.
Justice Dennis van Reenen found that a section of the Intestate Succession Act that provided for only one wife in a Muslim marriage to inherit from a man’s intestate estate was inconsistent with the Constitution. The judge held that the term “spouse” in the act should be interpreted to include spouses in polygamous Muslim marriages.
It was these findings that the Constitutional Court confirmed yesterday. In a ruling handed down on
behalf of herself and her fellow judges, Justice Bess Nkabinde found that the Intestate Succession Act discriminated against women in polygynous Muslim
marriages “on the grounds of religion, gender and marital
In doing so, she said, “the act clearly reinforces a pattern of stereotyping and patriarchal practices that relegates women in these marriages to being unworthy
of protection”. “The provisions in the act conflict with the principle of gender equality which the constitution
strives to achieve,” Justice Nkabinde said.
“That cannot, and ought not, be countenanced in a society based on democratic values, social justice and fundamental human rights.” Muslim marriages, unlike civil or African customary law marriages, are not legally recognised in South Africa.
Legislation relating to Muslim marriages has been on the cards for more than 10 years, but there has been no indication whether and when it will be passed.