Page:Fourie v Minister of Home Affairs (SCA).djvu/23

Rh That it is not always easy to determine ‘what the text is reasonably capable of meaning’ emerges from Daniels v Campbell. In a split decision, the Constitutional Court held that the word ‘spouse’ in the Intestate Succession Act 81 of 1987 can be read to include the surviving partner to a monogamous Muslim marriage. The majority came to this conclusion after distinguishing the position of same-sex partners, who, that Court had previously held, could not be read as being included in statutory references to ‘spouse’. The majority held, per Sachs J, that central to the Court's previous decisions to this effect ‘was a legal finding that it would place an unacceptable degree of strain on the word “spouse” to include within its ambit parties to a same-sex life partnership’. The majority also concluded, per Ngcobo J, that the previous decisions ‘must be understood to hold that the word “spouse” cannot be construed to include persons who are not married.’ Moseneke J agreed with the result but considered that the