Landmark judgment for thousands of black women
An archaic apartheid law that discriminated against hundreds of thousands of black women by automatically registering their marriages before 1988 as being out of community of property has been declared unconstitutional by the KZN High Court (Durban).
KZN Deputy Judge President Mjabuliseni Madondo on Friday ruled that parts of the Matrimonial Property Act 88 of 1984 were unconstitutional and invalid as they perpetuated discrimination created by a (since repealed) part of the Black Administration Act (BAA) of 1927.
Black couples who married before 1988, had their marriages concluded under that section of the BAA, which meant that they were automatically out of community of property.
The Legal Resources Centre obtained the judgment on behalf of Agnes Sithole (72). ‘Ms Sithole, the first applicant, acted in her own interest and in the public interest on behalf of all affected SA women, whose right to access property and financial security in marriage was in issue in this case. There are about 400 000 women affected by the provisions of ... the BAA,’ the LRC said in a statement recorded on the TimesLIVE site.
‘Despite the Marriage and Matrimonial Property Amendment Act 3 of 1988 (MMPAA) repealing section 22(6) of the BAA and allowing couples to change their marital regime, this was not enough to ameliorate the discrimination suffered by Ms Sithole and other women like her,’ said the LRC.
‘The MMPAA maintained the default marital property regime of out of community of property, a default which applied only to black couples married before 1988 and thus discriminated against black women on the grounds of both gender and race.’
The section, according to the LRC, meant that a wife had no control over assets and her husband was free to dispose of the assets without considering or consulting her, and did not require her consent. The LRC argued that the BAA continued to ‘adversely’ affect the lives of black women, 30 years after section 22(6) was repealed.
Madondo found that ‘the discrimination the impugned provisions perpetrate is so egregious that it should not be permitted to remain on our statute books'. He added: 'The recognition of the equal worth and dignity of all black couples of a civil marriage is long overdue.’
The LRC said it welcomed the decision and the positive impact it would have on the lives of hundreds of thousands of women.
Legalbrief notes the LRC, with the help of Advocate Geoff Budlender, was successful in obtaining the following relief:
* A declaration that the provisions of s 21(2)(a) of the Matrimonial Property Act 88 of 1984 is unconstitutional and invalid to the extent that it maintains and perpetrates the discrimination created by s 22(6) of the Black Administration Act 98 of 1927, in that marriages of black couples, entered into under the BAA before 1988, are automatically out of community of property.
* A declaration that all marriages concluded out of community of property under section 22(6) of the Black Administration Act before 1988 are declared to be marriages in community of property.
* That a spouse in a marriage declared to be in community of property in terms of the above paragraph, may apply to the High Court for an order that the marriage shall be out of community of property.
* In terms of s 172(1)(b) of the Constitution, the orders above shall not affect the legal consequences of any act done or omission or fact existing in relation to a marriage before this order was made.
LRC attorney, Sharita Samuel, said the LRC was pleased that the High Court came to the assistance of Sithole and other elderly African women in the same position.
According to Samuel, the Sithole judgment now formed a trilogy with the Gumede (discrimination on the basis of gender and race under customary law) and Maphumulo (property rights of women in polygamous marriages).
'Those judgments were also argued by Advocate Geoff Budlender, on an issue that the LRC is committed to protect and advance – namely the right of African women to acquire, control and own land or any other asset – like any other South African citizen.'
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
