In South Africa women married in terms of Islamic Law (Shari’ah) does not have the necessary protection, as a marriage as such is not recognised in South Africa.

These women are vulnerable and marginalised, as the adjudicators of their marital issues being the religious leaders are usually in favour of the men. There has been some light in the dark tunnel of hardship, as some reported cases extended the definition of a surviving spouse to include women in monogamous and polygamous Muslim marriages to be entitled to maintenance under the Maintenance of Surviving Spouses Act, 27 of 1990 and also to inherit in terms of the Intestate Succession Act, 81 of 1987.

With regards to the definition of a surviving spouse in terms of the Wills Act 7 of 1953 there is no precise or comprehensive definition that only renders women married in terms of the Marriage Act, the Civil Union Act or the Recognition of Customary Marriages Act 120 of 1998 the “surviving spouses” in terms of Section 2C(1) of the Wills Act.

The issue of a surviving spouse in a Muslim marriage for purposes of the Wills Act was addressed in Moosa N.O and Others v Harneker and Others (400/2017) [2017] ZAWCHC97; [2017] 4 All SA 498 (WCC); 2017 (6) SA 425 (WCC) (14 September2017). In this matter the deceased was married to the Second and Third Applicant in terms of Islamic Law. The marriage of the deceased and the Third Applicant was entered into before the marriage between the deceased and the Second Applicant.However the deceased and the Second Applicant entered into a civil marriage to qualify for a home loan, which is the current family home and also the ERF in dispute. The laws of South Africa at that time (1982) still treated a polygamous marriage as a common law crime.

After the successful application of the home loan and the purchase of the family home, the deceased still lived with both women as his wives and until his death the family home were their home, where they lived with the deceased and some of the nine children born out of both marriages.

For all purposes of the Islamic Law the deceased was married to both women and the marriages were terminated upon the death of the deceased. The Twelfth Respondent in this matter, being The Registrar of Deeds, Cape Town did not want to register the title deed in the names of the Second and Third Applicant, as they are of the opinion that the Second Applicant is the only surviving spouse. They had a strict approach with regards to the interpretation of the term surviving spouse under Section 2C(1).

The attorney on behalf of the Applicants based his argument on equality in terms of Section 9 of the Constitution and said that the marriages were properly solemnised in terms of the Muslim religious faith. He also argued that civil marriages are not more significant than Muslim marriages and that the definition of a surviving spouse, as understood and given effect to by the Twelfth Respondent unfairly discriminates against the Third Applicant on the grounds of religious and marital status.

The order made by Le Grange, J was eventually in favour of the Applicants.

Yet another case and another issue resolved as we await the promulgation of the Muslim Marriages Bill, which will hopefully come to the rescue of many Muslim women.