Customary law debated in Constitutional Court

A KwaZulu-Natal woman had Constitutional Court judges grappling with how to protect customary law and make sure African women married before 2000 do not find themselves on the streets when they divorce.

Pensioner Elizabeth Gumede, who was married under customary law in 1968, is in the process of divorcing her husband, but may have nowhere to live because in those days, the family head, seen as the man, was considered the owner and controller of the property.

He has offered her half the value of one of his homes.

The Recognition of Customary Marriages Act, which commenced on November 15 2000, recognises that this is discriminatory, and makes the default position community of property—which is joint ownership and responsibility.

However, marriages conducted before that date fall under the old law.

Elizabeth Gumede’s lawyer Geoff Budlender argued that in terms of the Constitution, she was being discriminated against because she was a woman, and an African.

Parliament had already decided that women should be protected in this way, but the question was from what date women should be protected and whether there was justification for excluding women like Gumede.

Budlender submitted that there should not be a cut-off date, but believed that the court would not reopen closed divorce matters.

Deputy Chief Justice Dikgang Moseneke said customary law suffused the way many people lived.

“Can customary law rather be changed to be in line with our Constitution, rather than jettisoning it?” he asked.

Budlender said he was only challenging the property aspect of the Customary Law of Marriage.

He said customary law developed from a particular social structure where the family was the basis of the structure and it was not a nuclear structure in terms of a husband, a wife, and children.

But society had moved towards nuclear structures. In different times, Gumede would have had a home provided by the family, but her parents were dead and they had lived on a farm not owned by them.

Gumede survives on a pension and is helped by her children. In terms of customary law, her husband owns the house she lives in Umlazi, south of Durban, and in Adams Mission. He owns the furniture and appliances inside the houses, and the pension he receives after he retired as a foreman at Rennies Cargo.

He never allowed her to work, so she did not contribute financially but ran the home and raised their children.

“The premise of a male trustee for the whole community doesn’t always apply anymore,” said Budlender.

“Where does Mrs Gumede go on the termination of her marriage? Who is it that has a duty to provide support to her?” he asked.

“She has to care for herself while social structures have changed, but the law does not provide for that.”

She would not find relief in divorce laws either.

The court heard that the challenge was to make sure what was good about customary law was retained.

“It doesn’t have to obliterate customary law, because there are a large number of people who live their lives based on customary law,” said Justice Sandile Ngcobo.

The justices spokes about “communitarian” notions of ownership, where land did not belong to one person, and how colonialism and economic developments had changed the notion of ownership and made it market related.

Moseneke said that property was always held in a trust for others and in the case of lobola, it would be managed for the benefit of everyone in the household.

“Colonial codes spoke about the notion of ownership because that is all they understood,” he said.

Justice Kate O’Regan observed: “It’s about people resolving problems on the ground in a contextual and fair manner. It’s about a different understanding of what law is.”

The Pietermaritzburg High Court ruled that Section 7(1) of the Recognition of Customary Marriages Act was inconsistent with the Constitution because it made customary law govern the property consequences of a marriage before 2000.

Section 20 of the KwaZulu Act on the code of Zulu law and Section 22 of the Natal code of Zulu law are also unconstitutional because they made the family head the controller of property and placed “inmates” in a “kraal” under the control of the family head.

Earlier, advocate Suzannah Cowan, as a friend of the court for the Women’s Legal Resources Trust, said that Section 7(1) did not take into account polygamous marriages.

But state advocate V Soni said the decision not to apply the community of property aspect retrospectively was to protect the rights already agreed to in those marriages.

“It might create strife,” he said. “It may create disharmony where the issue hadn’t arisen before.”

Judgement was reserved. - Sapa

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