CCT40/03

[2004] ZACC 14

2004 (5) SA 331 (CC)

2004 (7) BCLR 735 (CC)

Sachs J Majority judgment

Ngcobo J separate judgment

Moseneke J separate judgment

6 November 2003

11 March 2004

http://hdl.handle.net/20.500.12144/2208

Application to Constitutional Court for confirmation of an order and in the alternative, an appeal against an order of the Cape Town High Court: Daniels v Campbell NO and Others 2003 (9) BCLR 969 (C) declaring certain provisions of the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 unconstitutional.

On appeal, Sachs J held that the word "spouse" in its ordinary meaning includes parties to a Muslim marriage. Accordingly, it was not necessary to read-in words into the Intestate Succession Act and the Maintenance of Surviving Spouses Act. Ngcobo J, concurring, held that legislation must be read in a manner that gives effect to the values of our constitutional democracy in terms of section 39(2) of the Constitution. The word "spouse" in the Statutes under consideration must be construed to reflect this change in legal norms and values reflected in various statutes expressly recognizing Muslim marriages. Previous cases are distinguishable as they are concerned with couples who did not claim to be married under any law. All the members of the Court, except for Moseneke and Madala JJ, concurred in the judgments of Sachs and Ngcobo JJ respectively. Moseneke J, with Madala J concurring, held that the word "spouse" has a specific and settled meaning in our law, and must refer to a party married in accordance with the Marriage Act. The exclusion of people married under Muslim rites from the protection of the Acts in question is unjustifiably discriminatory.