Picture: ISTOCK
Picture: ISTOCK

A Cape Town man’s two elderly widows have succeeded in changing the law of the land.

Amina and Farieda Harnaker went to the High Court in Cape Town when the deeds office refused to register a portion of their late husband’s home in each of their names.

On Thursday‚ Judge Andre le Grange said a clause in the 64-year-old Wills Act referring to a "surviving spouse" did not pass constitutional muster.

He said the following sentence should be added to the clause: "A ‘surviving spouse’ includes every husband and wife of a de facto monogamous and polygynous Muslim marriage solemnised under the religion of Islam."

Farieda Harnaker said the whole family was "very happy" with the judgment‚ which has to be confirmed by the Constitutional Court.

The dispute was sparked by the death in 2014 of Osman Harnaker. In 1957‚ he married Amina under Muslim rites‚ and seven years later he married Farieda in the same way.

In 1982‚ when he applied for a home loan to buy a house in Crawford for him‚ his wives‚ their four sons and five daughters‚ he needed to be married lawfully. Said Le Grange: "At the time under our legal system polygynous Muslim marriages were not recognised and were still treated as a common law crime."

Harnaker and Amina formalised their marriage under South African law‚ with Farieda’s consent.

After his death‚ and according to his will and the Islamic distribution certificate issued by the Muslim Judicial Council‚ Amina and Farieda should have shared his estate equally.

The executor‚ University of the Western Cape law lecturer Fareed Moosa‚ asked the Registrar of Deeds to transfer a half share in the Crawford house to each of the wives‚ but he refused to do so for Farieda.

"The rationale … seems to be that the term ‘surviving spouse’ should be strictly interpreted to encompass spouses recognised under the Marriages Act and/or the Civil Union Act‚" said Le Grange.

Moosa told the court that both of Harnaker’s marriages were recognised under the constitution’s equality clause‚ and the Deeds Office was unfairly discriminating against Farieda on the grounds of religion and marital status.

Seehaam Samaai‚ director of the Women’s Legal Centre‚ who appeared as a friend of the court‚ said women affected by nonrecognition of Muslim marriages were vulnerable and marginalised compared to those married under civil or customary law.

"The Muslim women have to turn to religious leaders to adjudicate on their marital issues which‚ according to Ms Samaai‚ normally favours the men‚" said Le Grange.

"In the absence of proper legislation to recognise Muslim marriages and its proprietary consequences‚ the women falling in this category ordinarily suffer hardship in a multiplicity of ways."

Le Grange made clear that his judgment could not be used retrospectively to reopen estates that had already been wound up.