21 April 2021
Trilogy of cases brings equality to property rights in marriage for black women
Land ownership and property rights are integrally connected to the power of self-determination. This is particularly important for a class of persons historically oppressed by society and the law – elderly black women. On 14 April 2021 the Constitutional Court struck down yet another piece of legislation which unfairly discriminates against such women. The Court ruled that Section 21(2)(a) of the Matrimonial Property Act 88 of 1984 is unconstitutional and invalid to the extent that it maintains and perpetuates discrimination created by the Black Administration Act, in that marriages of black couples entered into before 1988 are automatically out of community of property. The LRC represented Ms. Agnes Sithole and the Commission for Gender Equality in the case, which vindicated the rights of approximately 400 000 elderly black women in South Africa.
The above case is the third in a trilogy of legal challenges brought by the Legal Resources Centre in the cases Gumede, Ramuhovhi and Sithole, challenging the laws which discriminated against a specific class of elderly black married women on the grounds of race, gender and age. The affected women belong to a generation of black women who were born, raised and married under apartheid – during a time when laws actively prevented their access to freedom of movement, education, and the right to hold property. The cases illustrate the persistence of patriarchy, the vulnerability of women during and upon termination of a customary marriage and the shortcomings of legislation enacted to protect such women. The court cases and the RCMA Amendment Bill recently passed by parliament reverses this discrimination.
The Recognition of Customary Marriages Act (RCMA) was enacted in 2000 to undo some of the injustices faced by black women in the past. The RCMA recognises a marriage entered into in accordance with customary law. However, certain provisions of the Act perpetuated discrimination. Section 7(1) of the RCMA stipulated that the proprietary consequences of a customary marriage entered into before the commencement of the Act (2000) continue to be governed by customary law. In most instances, this default position was out of community of property. Women bore the laborious and expensive task of applying to a court for redistribution of property if the marriage ended.
In 2008, the LRC represented Ms. Gumede in the case Elizabeth Gumede v President of RSA. The Gumedes were married in 1968 and therefore their marriage was governed by customary law regulated by apartheid era legislation, the KwaZulu Act and Natal Code which stipulated that a husband is the owner of all family property. When Mr. Gumede brought divorce proceedings against Ms. Gumede, the LRC challenged the constitutionality of Section 7 of the RCMA which would have left Ms. Gumede vulnerable and homeless in her old age. The Constitutional Court confirmed that Section 7(1) of the RCMA is inconsistent with the Constitution and invalid to the extent that its provisions related to monogamous customary marriages.
In 2017, the LRC represented Ms. Thokozani Maphumulo, the intervening applicant in the Ramuhovhi v President of RSA case. Ms. Maphumulo was the second wife in a pre-RCMA polygamous customary marriage and faced eviction from her home upon her husband’s death. The Constitutional Court declared Section 7(1) of the RCMA invalid with the Constitution insofar as it applied to polygamous customary marriages but gave parliament an opportunity to correct the defect within 24 months.
On 2 March 2021, the RCMA Amendment Bill was passed by parliament to give effect to the Gumede and Ramuhovhi orders. The amendment will ensure that the default position for all customary marriages will be in community of property, unless stipulated otherwise in an antenuptial contract. The Bill also ensures that spouses in more than one customary marriage have joint and equal ownership rights and rights of management and control over marital property. These provisions would not invalidate the winding up of a deceased estate that was finalized or the transfer of marital property where the person receiving transfer was not aware that the marital property was subject to a legal challenge.
Finally, in the Sithole case, 72-year-old housewife Ms. Sithole challenged Section 21(2)(a) of the Matrimonial Property Act, on the basis that it maintained and perpetuated the discrimination created by Section 22(6) the Black Administration Act which deemed marriages between black couples to be automatically out of community of property. This was different to the position of other racial groups whose marriages were automatically converted to being in community of property by the Matrimonial Property Act. The judgment unpacks societal dynamics such as patriarchy, gender stereotyping and inflexible application of oppressive cultural practices which perpetuates intersectional discriminatory consequences for black women.
Access to land and property are essential to securing financial freedom, as well as individual agency and autonomy. The potential of women to own and control land will foster their power of self-determination; eliminate dependence; and enable them to participate meaningfully in decision making structures. The LRC has relentlessly fought for this financial freedom for historically oppressed women. The above trilogy of cases have secured a community of property regime for black women, strengthening their right to security of tenure and financial freedom by ensuring that a husband and his wife/wives equally share the right of ownership and other rights to family property and house property without discrimination.
In the era of emancipation, feminism and equality, an application seeking such relief as a community of property regime may be considered outdated and inappropriate – but the reality of black women’s lives in our country may be distinguished from the lives of women in advantaged socio-economic communities. In our country the intersection of race, gender, class and apartheid results in differential access to property, assets and financial security and a COP marital regime presents the opportunity for remedial and substantive equality for women.
Issued by the Legal Resources Centre
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