In the matter of Fatima Gabie Hassam and others CCT 83/08 the issue to be decided by the constitutional court, on 19 February 2009, is whether the declaration of invalidity of section 1(4)(f) of the Intestate Succession Act 81 of 1987 as ordered by the Cape High Court should be confirmed. The Court a quo found that section 1(4) (f) discriminated against women in polygynous Muslim marriages on the basis of marital status, religion, culture and dignity.

In the Hassam case the second wife in a polygynous Muslim marriage lodged a claim against her late husband’s estate but the executor refused the claim on grounds that she was not recognised as a spouse in terms of the Maintenance of Surviving Spouses Act and the Intestate Succession Act. Judge Van Reenen in the Cape High Court heard the matter.

Judge Van Reenen ruled that Mrs Hassam would have been entitled to relief if her marriage had been a monogamous one. The judge ruled that, denying Mrs Hassam’s claim would amount to unfair discrimination unless there was a justification for the limitation of her rights and the rights of other similarly situated women.

The Legal Resources Centre through its Women’s Rights Project represents the Muslim Youth Movement (MYM), who has been admitted as amicus curiae (friend of the court).  The MYM is a registered non-profit organization which was established in 1970 and is one the largest national Muslim organisations in the country. In 1987, the MYM adopted a women’s rights campaign within the Muslim community. In 1993, the movement established the MYM Gender Desk. The Gender Desk focused on the rights of women under Muslim Personal Law and advocated for greater recognition for women given that gender equality was intrinsically recognised in the Qur’an.

The question of whether spouses in polygynous Muslim marriages should be recognized as spouses under the Intestate Succession Act raises at its core issues relating to:

1.      The tenets of Muslim Personal Law and the impact of the Constitution thereon;

2.      The constitutional protection to be afforded to women in marriages concluded under Muslim personal law and the enforcement of their rights to equality and dignity.

The current matter raises important issues relating to the treatment of women under Muslim Personal Law and it is to this end that the MYM will advance submissions that pertain to, inter alia, the tenets of Islamic jurisprudence which govern the relationship between spouses in a muslim marriage and the importance of equality as both a fundamental value and a right enshrined in the Bill of Rights in a diverse, tolerant society.

The Legal Resources Centre through its Women’s Rights Project recognises that the plight of women in polygynous Muslim marriages is a significant public interest issue because of the significant amount of women who are severely prejudiced by the failure of the law to recognise such women as spouses for the purpose of the Intestate Succession Act.

The primary objective of the Women’s Rights Project is to empower women who have been previously disadvantaged by assisting them in securing and enforcing their rights through litigation and by educating them on their rights so that they may play a more meaningful role in society. The Women’s Rights Project also provides legal advice, legal representation and negotiation and participates in advocacy and law reform. The Legal Resources Centre through its Women’s Rights Project took on the Hassam case because the case raises serious issues relating to women’s property rights and equitable access to resources.