Hassam v Jacobs NO and Others

The applicant, Fatima Gabie Hassam, was married to the deceased, Ebrahim Hassam, in accordance with Muslim rites. During the subsistence of this marriage, the deceased married a second wife, Mariam Hassam, also according to Muslim rites, without the applicant’s knowledge or consent. The deceased died intestate in August 2001. Section 1(4)(f) of the Intestate Succession Act 81 of 1987 made provision for only one spouse to inherit in intestate estates where there was more than one spouse. The executor of the estate refused to recognise the applicant as a spouse for purposes of intestate succession. The applicant challenged the constitutionality of section 1(4)(f) insofar as it excluded widows of polygynous Muslim marriages from inheriting.

The declaration of constitutional invalidity of section 1(4)(f) of the Intestate Succession Act was confirmed. The section was ordered to be read as applying to estates where the deceased is survived by more than one spouse, with each surviving spouse inheriting a child’s share or the statutory minimum, and where assets are insufficient, to be divided equally between surviving spouses.

This case extended constitutional protection and recognition to widows in polygynous Muslim marriages in the context of intestate succession. It marked an important development in South African equality jurisprudence by affirming substantive equality, religious diversity, and the protection of vulnerable women, building on Daniels v Campbell and aligning Muslim personal law consequences with constitutional norms.