For any black couple who married before 1988 in the country, chances are their union remains out of community of property, in line with apartheid’s Black Administration Act (BAA).

The Mercury reports the Constitutional Court will be asked in a hearing this month to address this legislative anomaly.

‘The BAA unfairly discriminated against black women compared with other women,’ said the Legal Resources Centre (LRC) in papers it filed at the apex court.

‘Under Section 22(6), the default position for black couples was marriage out of community of property. By contrast, the law regulating civil marriages between couples of all other races provided that the default position was marriage in community of property. The BAA had the result that black women were afforded less protection than other women,’ the centre said.

The LRC brought the case on behalf of Agnes Sithole (72), from Pinetown in KZN.

Sithole faced becoming destitute after the collapse of the civil marriage she entered into in 1972. She learnt for the first time in 2018 that she was married out of community of property, as per the BAA.

This meant her husband could carry out a threat he had made to sell their family home without her consent.

The report notes an estimated 400 000 African women who married before 1988 could be in a position similar to Sithole’s, according to expert research the LRC cited to support the application.

The challenged legislation should be struck down for being unfairly discriminatory based on race and gender, the LRC said.

Full report in The Mercury (subscription needed)