On July 15, 2009 the Constitutional Court handed down a judgment in favour of Muslim women in polygynous marriages and affirmed their right to inherit in the event that their husbands die without leaving a will. In the matter of Fatima Gabie Hassam v. Johan Hermanus Jacobs NO and Others, the main issue before the Court was whether it was constitutionally valid for widows in polygynous Muslim marriages to be excluded from making claims under the Intestate Succession Act 81 of 1987 (ISA) and the Maintenance of Surviving Spouses Act 27 of 1990 (MSSA), which did not allow for claims by more than one spouse. A unanimous Court held that the exclusion of widows in polygynous Muslim marriages from the protection of these statutes amounted to unfair discrimination on the basis of religion, marital status and gender.

Fatima Gabie Hassam lived with her husband for 29 years in a polygynous Muslim marriage in accordance with the tenets of Muslim Personal Law. Under South African law, a polygynous marriage is not formally recognized and as such, when her husband died in 2001, the State did not recognize her as a legitimate ‘spouse' and excluded her from the benefits and protections afforded to other widows under the ISA and the MSSA. The very purpose of the ISA and the MSSA is to provide relief to widows who are deemed to be a particularly vulnerable group in South Africa. The ISA guarantees a widow a portion of her husband's estate when he dies without a will, whilst the MSSA provides widows with an opportunity to make a claim for maintenance against their deceased husband's estate. The enactment of such legislation was necessary to protect women who generally find it more difficult than men to receive income and acquire property.

When the matter was taken to the Cape High Court, its judgement declared the relevant sections in the ISA and MSSA constitutionally invalid, and the matter was then referred to the Constitutional Court for confirmation. In February 2009, the Legal Resources Centre (LRC) represented the Muslim Youth Movement of South Africa ("MYM") which intervened in the constitutional case as amicus curiae. The LRC made submissions to the Constitutional Court on behalf of the MYM. The amicus submitted that the non-recognition of Muslim women in polygynous marriages as ‘spouses' is unfairly discriminatory and inconsistent with the Constitution. This argument stemmed from a previous case, which recognised that women in de facto monogamous Muslim marriages are indeed ‘spouses' for the purposes of the ISA. Thus any distinction between women in polygynous Muslim marriages and women in de facto monogamous Muslim marriages is discriminatory. The amicus also submitted that the extension of the word "spouse" should be applied in this case as it was applied in the Bhe and Shibi case, where the Constitutional Court extended the definition of the word "spouse" in the ISA to apply to women in polygynous customary marriages. Again, any distinction between women in polygynous Muslim marriages and women in polygynous customary marriages would be discriminatory.

Writing for the Constitutional Court, Justice Nkabinde concluded that excluding women in polygynous Muslim marriages was not justifiable in a society guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom. In coming to its decision, the Court relied on the submissions made by the MYM on how to remedy the defect in the ISA. The amicus submitted that the words "or spouses" be read-in after each use of the word "spouse" in the Act. The MYM also submitted to the Court that the order of constitutional invalidity be given limited retrospective effect to protect the vested rights of heirs in finalized estates.

This Constitutional Court judgment is a true victory for women in polygynous Muslim marriages, who now have the ability to make claims to the State under the ISA and MSSA, just as women in monogamous marriages have been able to for years.