Press Release: Constitutional Court gives relief to women in polygamous customary marriages

For Immediate Release: 30 November 2017

Today, 30 November 2017, judgment was handed down in the Constitutional Court in the case of Ramuhovhi and Another v the President of the Republic of South Africa and Others which concerns proprietary rights in polygamous customary marriages. The Legal Resources Centre represented Mrs Thokozani Maphumulo as an intervening applicant.

The case concerned the confirmation of an order made by the Limpopo High Court on 1 August 2016, which declared that Section 7(1) of the Recognition of Customary Marriages Act (RCMA) is invalid and unconstitutional. Section 7(1) of the RCMA regulates the proprietary consequences of “old” customary marriages and states that customary marriages entered into before the commencement of the Act continue to be governed by customary law.

An earlier decision in the Constitutional Court in Gumede v The President of the RSA, the Court declared the provision unlawful with regard to monogamous customary marriages.

Today in Ramuhovhi, the Court confirmed the order of the High Court which found that the provision discriminates unjustifiably against women in polygamous customary marriages on the basis of gender, race and ethnic/social origin.

According to the High Court order, wives who are parties in polygamous customary marriages entered into before the commencement of the RCMA shall have joint and equal rights of management and control over the marital property until such time as Parliament enacts legislation which governs the matrimonial property regime of such marriages. However, the order was limited retrospectively, as not being applicable to customary marriages which have been terminated by death or divorce before the date of the order.

Our client, Mrs Maphumulo, was the second customary law wife to her late husband, Mr Musawenkosi Maphumulo. They lived together at their home in KwaMashu since 1992, although the property was registered in Mr Maphumulo’s name only. Mr Maphumulo’s first wife and her children resided at their home in Ozwathini. After Mr Maphumulo’s death in 2013, Mrs Maphumulo learnt that he had left a will in which he bequeathed his entire estate to his son of his first marriage. Mrs Maphumulo’s home in KwaMashu was subsequently transferred to this son’s name and, in 2015, she received a notice to vacate her property.

On behalf of Ms Maphumulo, the LRC advanced arguments relating to the question of the retrospectivity of the order of invalidity.  Left as is, that part of the High Court order that says the order does not affect customary marriages that have been terminated by death had the potential of literally leaving Ms Maphumulo out in the cold.

In its judgment, the Constitutional Court acknowledged that the submissions on behalf of Ms Maphumulo were a useful contribution towards the resolution of the issues. In addition to retrospectivity affecting wives in Mrs Maphumulo’s position, the submissions addressed relief generally and extensively. The Court held that it is in the interests of justice to grant Mrs Maphumulo leave to intervene.

The Court has left it open to Parliament to finally decide how to regulate the proprietary regime of pre-Act polygamous customary marriages.  However, it ordered a suspension of the declaration of invalidity accompanied by interim relief: a husband and his wives in pre-Act polygamous customary marriages must share equally in the right of ownership of, and other rights attaching to, family property, including the right of management and control of family property; and a husband and each of his wives must have similar rights in respect of house property. This is a departure from the High Court order which limited the rights to management and control of property, and is in line with Mrs Maphumulo’s submissions.

The Court noted that the basis for limiting retrospectivity is the disruption which would surely come about given the long time that has elapsed and the number of polygamous customary marriages involved. This must be balanced against the need to provide adequate relief to the litigants and similarly placed people.

The Constitutional Court altered the High Court order and held that the dissolution of pre-Act polygamous customary marriages is not an appropriate cut-off point and does not provide adequate protection to women in old polygamous customary marriages.  It held that the retrospective effect of the declaration of invalidity must be as extensive as possible but not affect estates that have been wound up or transfers that have taken effect.

Therefore, the Court ordered that the order does not invalidate the winding up of a deceased estate that has been finalised or the transfer of marital property that has been effected, except where at the time of transfer, the transferee was aware that the property concerned was subject to a legal challenge on the grounds upon which the applicants brought the challenge in this case.

This order effectively grants Mrs Maphumulo the legal standing to now pursue a challenge to assert her rights of ownership to reclaim her home of 25 years. 
ENDS