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14 April 2021 – Constitutional Court confirms invalidity and unconstitutionality of a section of the Matrimonial Property Act that unfairly discriminates against black women

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Media Statement

14 April 2021

Constitutional Court confirms invalidity and unconstitutionality of a section of the Matrimonial Property Act that unfairly discriminates against black women

DURBAN — The Constitutional Court ruled this morning that section 21(2)(a) of the Matrimonial Property Act 88 of 1984 (the MPA) is unconstitutional and invalid to the extent that it maintains and perpetuates the discrimination created by section 22(6) of the Black Administration Act 38 of 1927 (the BAA), in that marriages of black couples entered into under the BAA before 1988, are automatically out of community of property. This ruling by the Constitutional Court judgment confirmed a 2020 ruling by Judge Mandondo of the Durban High Court.

This is a significant judgment obtained by the Legal Resources Centre on behalf of Ms. Agnes Sithole and the Commission for Gender Equality (CGE). We are therefore pleased that the Constitutional Court granted this relief to our clients and the estimated 400 000 elderly black women on whose behalf this application was brought.

Section 22(6) of the BAA created the default position that black couples married under the BAA are married out of community of property. Black women were therefore denied the protection that is afforded by a marriage in community of property. The BAA unfairly discriminated on the grounds of gender and race since, under section 22(6) of the BAA, the default position for black couples was marriage out of community of property while the converse applied to civil marriages in respect of all other race groups whose marriages were automatically in community of property unless an ante-nuptial contract was signed.

Today’s Constitutional Court Judgment grants the following relief to Ms. Sithole and an estimated 400 000 elderly black women in South Africa:

  1. The Provision of section 21(2)(a) of the MPA is unconstitutional and invalid to the extent that it maintains and perpetuates the discrimination created by section22(6) of the BAA and thereby maintained the default position of marriages of black couples entered into under BAA before the 1988 Amendment, that such marriages are automatically out of community of property.
  2. All marriages of black persons that are out of community of property and were concluded under section 22(6) of the BAA before the 1988 amendment are, save for those couples who opt for a marriage out of community of property, hereby declared to be marriages in community of property.
  3. Spouses who have opted for marriages out of community of property shall in writing notify the director of the Department of Home Affairs accordingly.
  4. Any person with a material interest who is adversely affected by this order may approach the High Court for appropriate relief.
  5. The Second Respondent is ordered to pay the costs of this application and such costs should include the costs of two counsel where so employed.
  6. It is ordered that the First Respondent’s attorney should forfeit his legal fees in respect of this application.

Advocate Geoff Budlender, instructed by the Legal Resources Centre, argued the trilogy of LRC cases that sought redress for elderly black women denied access to and control over family assets and property by discriminatory pre- and post-Constitution laws. Our clients, Agnes Sithole, Elizabeth Gumede and Thokozani Maphumulo (in Ramuhovhi) are courageous women who have made history and the LRC is privileged to have walked this journey with our clients.

[ENDS]

Issued by the Legal Resources Centre

For more information, please contact:
Sharita Samuel (Durban Regional Director) Cell: 074 111 174/ Email: sharita@lrc.org.za

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