The Legal Resources Centre (LRC) welcomes the landmark judgment handed down by the Constitutional Court on 8 December 2008. The decision has the effect that all women who entered into customary marriages before 2000 are also married in community of property, which is vital in the context of death and divorce. Attorney Sharita Samuel from the Durban LRC office dealt with the matter.

Mrs Elizabeth Gumede entered into a customary marriage with her husband Amos Gumede on 29 May 1968.  The marriage relationship irretrievably broke down, and her husband instituted divorce proceedings against her in the North Eastern Divorce Court. Mrs Gumede consulted Samuel who brought an application to stay that divorce action, pending the determination of unfair discrimination and constitutional invalidity by the constitutional court. The issue in our application was the proprietary consequences of the customary marriage, and particularly in the context of the pending divorce action against Mrs Gumede. Her primary complaint was that the matrimonial property regime to which she is subject, discriminates against her because she is a woman, and because she is an African.  Her secondary complaint was that while the Recognition of Customary Marriages Act 120 of 1998 recognises the discriminatory consequence of the relevant provisions of the customary law, and rectifies the position in respect of customary marriages entered into after the commencement of that Act (15 November 2000), it perpetuates this discrimination in other customary marriages.  In other words, it is under-inclusive. Her application was opposed by the National Government (the First, Second and Sixth Respondents) and was heard in the Durban and Coast Local Division of the High Court on 6 December 2007. 

On 13 June 2008 Theron J handed down her judgment, which declared certain provisions of the Recognition of Customary Marriages Act, the Natal Code of Zulu Law Proclamation R151 of 1987 and the KwaZulu Act on the Code of Zulu Law 16 of 1995 inconsistent with the Constitution and invalid. The Court ordered, in terms of section 172(2)(a) of the Constitution, that its order was referred to the Constitutional Court for confirmation. We then applied to the Constitutional Court for the confirmation of the order made by the High Court on 11 September 2008. 

On 8 December 2008, Moseneke DCJ, writing for the majority found the above provisions to be discriminatory on the ground of gender. Only women in a customary marriage are subject to these unequal proprietary consequences. The court found that because this discrimination is on a listed ground it is presumed to be unfair and the burden fell on the respondents to justify the limitation on the equality right of women party to “old” marriages concluded under customary law, prior to the commencement of the Recognition of Customary Marriages Act. The court held that the respondents had failed to provide adequate justification for this unfair discrimination. He held that section 8(4)(a) of the Recognition Act, which gives a court granting a decree of divorce of a customary marriage to order how the assets of the customary marriage should be divided between the parties, is no answer to or justification for the unfair discrimination based on the listed ground of gender. This is because section 8(4)(a) of the Recognition Act does not cure the discrimination which a spouse in a customary marriage has to ensure during the course of the marriage. The court further held that the matrimonial proprietary system of customary law during the subsistence of a marriage as codified in the Natal Code and the KwaZulu Act patently limits the equality dictates of our constitution and the Recognition Act.

Samuel said that she was very pleased with the judgment and for her client as well. ‘She has now been provided with the support of the law that will assist her to claim her share of the community of property and assert her right to her home and maintenance in her old age. The feminization of poverty is now widely recognised as a syndrome unduly affecting women after divorce actions and settlements. We are now fortunate to have good law that will ensure women in African customary law divorce actions will not automatically join the homeless statistics and maintenance court queues begging for what was rightfully earned during their marriages. They will be protected and given the legal authority to assert their claims for community of property like women and men of all other races in South Africa.’