/ 19 September 2021

Constitutional triumph on matrimonial property rights

Land Under The Ngonyama Trust Kzn Photo Delwyn Verasamy
(Photo: Delwyn Verasamy/M&G)

When Elizabeth Gumede’s husband instituted divorce proceedings and sought to evict her from their marital home, she consulted the Legal Resources Centre (LRC) and set in motion a process that would end in a high court finding that the laws under which she was married are unconstitutional. 

Elizabeth Gumede, as well as Thokozani Maphumulo, Matodzi Ramuhovhi and Agnes Sithole, are four brave women who reversed oppressive marriage laws that dictated what a woman can or cannot own. These laws subjected elderly, married black women to the confines of patriarchy and discrimination by limiting their rights to property. These are their stories.

Elizabeth Gumede

The Gumedes married in 1968, before the passing of the Recognition of Customary Marriages Act of 1998. The LRC, on behalf of Ms Gumede, argued that she suffered unfair discrimination by having no access to and control over family property, which would have left her vulnerable and homeless in her old age both during and upon termination of her customary marriage. 

In KwaZulu-Natal, where the couple lived, customary law is codified in the KwaZulu Act on the Code of Zulu Law and the Natal Code of Zulu Law that provided that the family head, the husband, was the owner of all family property, and the wife had no claim to the property during the marriage or if the marriage dissolved. Section 22 of the Natal Code provided that “inmates” of a kraal were under the control of the family head. 

As former Deputy Chief Justice Moseneke stated, “While patriarchy has always been a feature of indigenous society, the written or codified rules of customary unions fostered a particularly crude and gendered form of inequality, which left women and children singularly marginalised and vulnerable.”

The Legal Resources Centre (LRC), a public-interest law centre, brought three applications to advance elderly, married black women’s rights to marital property, altering the trajectory of their access to matrimonial property. For more than 10 years, the LRC worked to protect these women against eviction by their husbands’ families upon death of the husband, or by their husbands upon divorce. 

Women’s role in building the family home should not be undervalued or ignored as, even when their contributions might not be financial, they serve as homemakers and caregivers, and they help acquire, build and maintain family homes alongside their husbands. 

The Durban high court found in favour of Ms Gumede and declared section 7(1) of the Recognition Act, section 20 of the KwaZulu Act and section 22 of the Natal Code unconstitutional and invalid. Section 7(1) provided that customary marriages prior to the date of the commencement of the Act (old marriages) were governed by customary law and out of community of property, while section 7(2) provided that customary marriages after the date of commencement of the Act (new marriages) were marriages in community of property. 

The Constitutional Court confirmed the decision of the Durban high court and reversed the default out-of-community-of-property regime formed by the codified customary law. The apex court found that the ability to argue for the redistribution of the property upon divorce did not justify the unfair gender discrimination. This judgment made it possible for Ms Gumede to successfully defend divorce summons and the eviction proceedings to secure her share of the marital property. 

Thokozani Maphumulo and Matodzi Ramuhovhi

In Ramuhovhi and Others v President of the Republic of South Africa and Others, the LRC brought a claim on behalf of Ms Maphumulo and the class of women she represented, by applying to the Constitutional Court for a progression from the Gumede judgment to successfully extend the benefit of community of property in favour of wives who were party to customary polygamous marriages. The LRC represented Thokozani Maphumulo as an intervening applicant as the high court’s order did not assist customary marriages that were terminated by death, which would have left Ms Maphumulo homeless. 

The LRC, on behalf of Ms Maphumulo, asked the court to formulate the curb on retrospectivity differently – by making an order that protects estates that have not been wound up; estates that have been wound up, but where the heirs were aware that section 7(1) of the Recognition Act was being challenged; and the home of a wife by permitting her to approach a court to reclaim her home even if transfer has already taken place. 

The Constitutional Court upheld the high court’s ruling of constitutional invalidity and found that the differentiation in rights between pre-Act polygamous marriages and new polygamous customary marriages amounted to unfair discrimination. 

Agnes Sithole

The final case in the trilogy challenged the discriminatory legacy of the Black Administration Act (BAA), which provided that black couples who concluded civil marriages under the BAA were automatically married out of community of property. Even after the repeal and replacement of the BAA, its discriminatory effects were felt by Ms Agnes Sithole and an estimated 400 000 other black women in 2018. While the Matrimonial Property Amendment Act repealed the BAA, it did not remedy the discrimination of section 22(6) of the BAA. 

The LRC brought an application on behalf of Ms Agnes Sithole to have section 21(2)(a) of the Matrimonial Property Act declared unconstitutional and invalid to the extent that it maintains and perpetuates the discrimination by denying women access to property during their marriages. The law as it stood meant that the only remedy available to women married under section 22(6) of the BAA to divorce to secure an equitable matrimonial property regime. 

In January 2020 Judge Madondo of the Durban high court found in favour of Ms Agnes Sithole and the Commission for Gender Equality that the civil marriage regimes of black women married before 1988 are marriages in community of property and no longer automatically out of community of property. The legal trilogy was completed in April 2021 when the Constitutional Court confirmed the Durban high court’s decision by declaring sections 21(1) and 21(2)(a) of the Matrimonial Property Act unconstitutional and invalid, and held that all marriages concluded out of community of property under section 22(6) of the BAA are deemed marriages in community of property. 

The laws that perpetuated the denial of Ms Sithole’s access to and control of family property both during and upon the dissolution of her marriage was struck down by the Constitutional Court on 14 April 2021 in a bid to foster security of tenure, financial freedom and dignity in old age. 

The trilogy of cases demonstrates how even under the protection of the Constitution, elderly married black women continued to suffer discrimination that denied ownership and control of marital property. It goes without saying that access to land ownership and property rights is inextricably linked to the power of self-determination. This is especially fundamental for a class of persons historically oppressed by society and the law – elderly black women. Preventing access to control and the ownership of property not only oppressed this class of women, but it also disregards section 25(5) of the Constitution, which provides that the state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. 

Not only was their dignity violated in that they helped secure, build and maintain these very homes they stood to be evicted from, the exclusion propagated the past discriminatory laws of the colonial and apartheid regime, leading these women to relive their experiences even under democracy.

Former Constitutional Court Judge Kate O’Regan summarised the strength of human dignity in our constitutional dispensation as so to reflect “respect for the dignity of all human beings is particularly important in South Africa. For apartheid was a denial of a common humanity. Black people were refused respect and dignity and thereby the dignity of all South Africans was diminished. The new constitution rejects this past and affirms the equal worth of all South Africans. Thus, recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new constitution.” 

Poverty, economic instability and eviction in old age sought to undermine the very value that our constitution is founded on. The relentlessness of these women assisted them in participating in decision-making structures that will ultimately unshackle the status quo.