Moosa NO and Others v. Harnaker and Others (Western Cape High Court of South Africa): Wills Act Incompatible with South Africa Constitution Due to Discrimination Against Muslim Marriages

Contributor Katherine Gonzalez summarizes the recent decision of the Western Cape High Court in Cape Town, South Africa regarding the term “surviving spouse” and how it applies to Muslim marriages.


The Western Cape High Court in Cape Town declared the 1953 Wills Act inconsistent with the South Africa Constitution, because the statute’s provisions were previously interpreted to recognize only legal marriage and not Muslim marriages.

In the decision, delivered on September 14, 2017, Judge Andre Le Grange found that the term “surviving spouse” in Section 2C(1) of the Wills Act, which governed the persons entitled to benefits under a will, discriminated against Muslims. Previously, the term “surviving spouse” had been interpreted to apply only to spouses whose marriages were recognized under the Marriages Act 25 of 1961 and the Civil Union Act 17 of 2006, which did not recognize polygamous marriages or marriages that were solemnized under the tenets of Islamic law.

Judge Le Grange determined that such an understanding of the term “surviving spouse” violated Section 9 of the South Africa Constitution, which specifies that the “state may not unfairly discriminate” against a person on a number of grounds, including their religion.

In order to extend constitutional protections to Muslims marriages…

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