Govender v Ragavayah NO and Others

The applicant, Saloshinie Govender, and the deceased, Balasundran Narainsamy, were married on 22 August 2004 according to the rites and customs of the Hindu religion. The marriage was monogamous and was not registered in terms of the Marriage Act 25 of 1961. No children were born of the marriage. The deceased died intestate on 1 January 2007, less than three years after the marriage. The first respondent was appointed executor of the deceased's estate. The opposing respondents (the deceased's father and mother, and the executor) opposed the application, arguing that if they succeeded, the parents would inherit the entire estate to the exclusion of the applicant. The applicant sought a declaration that she should be regarded as a 'spouse' for purposes of the Intestate Succession Act 81 of 1987.

• Whether the word 'spouse' in the Intestate Succession Act 81 of 1987 includes a surviving partner to a monogamous Hindu marriage that has not been registered under the Marriage Act 25 of 1961.
• Whether the exclusion of spouses in monogamous Hindu marriages from the Intestate Succession Act constitutes unfair discrimination in violation of section 9 of the Constitution.
• Whether the non-recognition of a Hindu marriage as a valid civil marriage precludes a surviving partner from being regarded as a 'spouse' for purposes of intestate succession.

1. The word 'spouse' as used in section 1 of the Intestate Succession Act 81 of 1987 includes the surviving partner to a monogamous Hindu marriage. 2. The applicant is declared to be a 'spouse' for purposes of section 1 of the Act. 3. The applicant is declared to be the spouse of the late Balasundran Narainsamy and entitled to inherit from his estate. 4. The liquidation and distribution account prepared by the first respondent was set aside. 5. The first respondent was ordered to prepare a fresh account within 30 days, failing which the Sheriff was authorised to give effect to the order. 6. Costs of the applicant to be paid by the deceased's estate.

For the purposes of the Intestate Succession Act 81 of 1987, the word 'spouse' includes the surviving partner to a monogamous Hindu marriage, even where that marriage was not registered under the Marriage Act 25 of 1961. The validity of the marriage under South African civil law is not a prerequisite for a person to qualify as a 'spouse' under the Act. Excluding such partners would constitute unfair discrimination contrary to the constitutional rights to equality and freedom of religion.

The court noted that most systems of intestate succession do not find their rationale in trying to establish the hypothetical intentions of the deceased, but in the legal conviction that the surviving spouse and family members are, in a sense, the deceased's natural heirs. The court also commented that allegations by opposing respondents that the applicant was 'unworthy' had no bearing on the matter and that no case of unworthiness had been made out.

This case extended the protection of the Intestate Succession Act to surviving partners in monogamous Hindu marriages, building on the Constitutional Court's progressive extension of 'spouse' to partners in Muslim marriages (Daniels v Campbell) and same-sex life partnerships (Gory v Kolver). It affirmed that religious marriages not registered under the Marriage Act can still attract legal recognition for succession purposes, advancing the constitutional values of equality, religious freedom, and cultural pluralism.