Press Release: Widow gets property back following Constitutional Court case on polygamous customary marriages
Published by Legal Resources Centre 23 October 2018
For Immediate Release: 23 October 2018
Today, 23 October 2018, in the Durban High Court, Ms Thokozani Maphumulo’s application to have her marital home placed in her name was successful. This follows her intervention, in which she was represented by the Legal Resources Centre, in the matter of Ramuhovhi and Others v President of the Republic of South Africa and Others  ZACC 41, in which the Constitutional Court confirmed that s 7(1) of the Recognition of Customary Marriages Act (RCMA) was unconstitutional and invalid.
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.
Ms Maphumulo was the second wife in a customary marriage to Musawenkosi Maphumulo. Since 1992, she lived with her late husband at E283 112 Mnyamana Road, KwaMashu. She acquired this property with her husband during the subsistence of their marriage.
Ms Maphumulo’s husband died on 28 October 2013. He executed a will wherein he bequeathed his entire estate to his son from his first marriage, Simiso Maphumulo. The property was subsequently transferred to Simiso on the 11 December 2015. After the transfer, Simiso attempted to evict Mrs Maphumulo from the property.
In the Ramuhovhi judgment, the Constitutional Court ordered that the following regime will apply to polygamous customary marriages concluded before the RCMA came into operation:
(a) Wives and husbands will have joint and equal ownership and other rights to, and joint and equal rights of management and control over, marital property, and these rights shall be exercised as follows:
(i) in respect of all house property, by the husband and the wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; and
(ii) in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses.
The Constitutional Court made it clear that only members of that house are entitled to enjoy benefits that flow from the existence of the property, including rights of inheritance to the property. The Constitutional Court did not make a factual finding on this matter and correctly so, as the Court was not asked to do so.
Ms Maphumulo was required to bring a separate application to challenge the transfer and ownership of the property, which she did in the Durban High Court, represented by the Legal Resources Centre.
Hence, Ms Maphumulo brought an application in the Durban High Court challenging the validity of her late husband’s will insofar as it bequeathed the property to Simiso. Finding in favour of Ms Maphumulo, the Court declared the will invalid and set it aside. The Court further declared that the subsequent transfer of the property to Simiso was unlawful and ordered the Registrar of Deeds to transfer the property into Ms Maphumulo’s name.