Working to create awareness on recent legal amendments to African customary and civil marriages

We are excited to kick off the “trilogy advocacy campaign” which will see us partner with grassroots organisations and community radio stations to share information about recent rulings on laws that unfairly discriminated against married black women. With this campaign, we want to bring these rulings to the attention of about 400 000 elderly black women married under these marriage regimes so that they understand their rights to land and property in customary and civil marriages.

Marriage laws such as the Recognition of Customary Marriages Act (RCMA), the Natal Code, and the KwaZulu Act, rendered women who married according to customary law perpetual minors, with property ownership passing only to their brothers, husbands, and sons. Women were barred from owning property or securing tenure over land due to this exclusion. African women in civil marriages before 1988 and in terms of the Black Administration Act (BAA) were similarly affected. According to the BAA, the default position for marriages between African couples was out of community of property. In 1988 the Matrimonial Property Act (88 of 1984) repealed this section of the BAA and amended the law in respect of African civil marriages but permitted couples married out of community of property only a two-year window of opportunity to change their matrimonial regime from 1988. Many women were not aware that they could change their matrimonial regime, and, in any event, they required the consent of their husbands to effect the change. The LRC filed three separate court applications to challenge the RCMA to secure women’s equal access to property ownership and tenure security. The third application on behalf of Ms. Agnes Sithole and the Commission for Gender Equality, challenged the Matrimonial Property Act, arguing that it perpetuated the discrimination established by the BAA, that marriages between black couples entered into before 1988 are automatically out of community of property. The Constitutional Court ruled on 14 April 2021 that Section 21(2)(a) of the Matrimonial Property Act is unconstitutional and invalid and upheld the rights of approximately 400 000 elderly black women in South Africa.

Following the successful judgments, the LRC with the support of the Canada High Commission in South Africa’s Fund for Local Initiatives, has committed to ensuring that communities, and in particular women, are informed about the judgments to understand their land and property rights in customary and civil marriages. Our goal with this project is to strengthen the agency of vulnerable, elderly African women in South Africa to assert their property rights and matrimonial decision-making for social and economic equity. Long after the project comes ti an end in February 2022, we want to see:

• 150 community influencers and decision-makers, (50 per province comprising 40 local women and 10 traditional and community leaders and community advice workers), equipped with knowledge and tools to support the advancement of women’s access to and control of marital property including land.
• 15 grassroots advice offices (5 per province) having improved the effectiveness and sustainability of their support to local women on substantive equality and constitutional property rights in marriage.
• 400 000 elderly women having received rights-based knowledge in matrimonial property regimes, increasing their capacity to control and participate in decisions on income generated and property owned during marriage as well as on succession matters.

The first stage of this project, which we launched this week, involved three stakeholder meetings with partners in the Eastern Cape, KwaZulu Natal and Limpopo – the three provinces we have targeted for the implementation of this project. These were planning meetings for the rollout of the campaign and were aimed at engaging with influential stakeholders to share information of the successful judgements and to help us identify community influencers in each of the three provinces. This is in line with our proposal that we must engage with stakeholders to develop and enrich the process of conscientising target groups within the three provinces of these rulings and equipping them with the knowledge and tools to support the advancement of women’s access to, and control of, marital property including land.