Court rules for women in pre-1998 polygamous marriages
The Constitutional Court has confirmed that a law which governs matrimonial property in customary marriages is unconstitutional, says a TimesLIVE report. Section 7(1) of the Recognition of Customary Marriages Act (RCMA) of 1998 provides that wives who entered into customary marriages before the Act was passed do not have marital property rights.
In this case Musenwa Netshituka‚ who died in 2008‚ had entered into polygamous customary marriages with three women and two civil marriages with two other women.
The major asset in the deceased’s estate was immovable property. Two biological children‚ whose mothers had entered into the polygamous marriage‚ launched the constitutional challenge. They argued that due to the application of section 7(1) of the RCMA‚ their mothers were excluded from ownership of the estate.
In a unanimous judgment written by Justice Mbuyiseli Madlanga‚ the court said the effect of section 7(1) was that it perpetuated inequality between husbands and wives in the case of marriages entered into before the 1998 Act.
‘The situation of wives in pre-Act polygamous customary marriages is one of lack of ownership and control of property within the marriage. In new polygamous customary marriages‚ the proprietary regime is either: governed by a court-sanctioned contract in the conclusion of which wives participate as equal partners with the husband; or out of community of property and of profit and loss‚’ Madlanga said.
He said this discrimination limited the right to human dignity of wives in pre-Act polygamous customary marriages. Madlanga gave Parliament 24 months to remedy the defect in the legislation. He said pending the change in the legislation‚ husbands and wives whose polygamous customary marriages were concluded before the Act must share equally in the right of ownership to family property. The court said its order did not invalidate a winding up of a deceased estate which had been finalised or the transfer of marital property that had been effected.
Ramuhovhi and Others v President of the Republic of South Africa and Others
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