Elizabeth Gumede and Amos Gumede were married in a customary law marriage in KwaMhule, Durban in 1968. In January 2003, after their relationship had broken down, Mr Gumede applied for a divorce order against Mrs Gumede. During their marriage Mr Gumede, a pensioner since 2000, acquired immovable property at Umlazi Township where Mrs Gumede currently resides and at Adams Mission, where he stays.

Like many vulnerable women in South Africa, at her husband’s request Mrs Gumede did not work during their marriage. Instead she performed all the tasks required to look after their family home at Umlazi for her husband, herself and their four children. She was the primary caregiver of the children and performed numerous functions of a domestic nature. During this time she also acquired furniture and appliances to the approximate value of R40 000 for the family home.

Even so, after years of hard work and commitment Mrs Gumede was, in the eyes of the law, entitled to nothing, firstly because of the colour of her skin and secondly because she is a woman. The fact that she had no where else to go and was an old aged pensioner who survived only on her monthly pensions and the contributions from her children without any maintenance from Mr Gumede had very little bearing on the proprietary consequences of the proposed dissolution of her customary marriage.

This is because customary marriages concluded after the commencement of the Recognition of Customary Law Act 120 of 1998 (the Recognition Act) on 15 November 2000 are in community of property unless the parties contract out of community of property, whereas those concluded before this Act continue to be governed by customary law.  And in terms of Section 20 of the KwaZulu Act on the Code of Zulu Law 16 of 1985 (the KwaZulu Act) and the Natal Code of Zulu Proclamation R151 of 1987 (the Natal Code) - the codified customary laws of KwaZulu Natal - ‘the family head is the owner of all family property in his family home’. A section of the Natal Code further states that the members of a family home irrespective of sex or age are, in respect of all family matters, under the control of and owe obedience to the family head, who is almost always a man.

The Legal Resources Centre, on behalf of Mrs Gumede, argued that by making her husband the sole owner of all the property acquired during their marriage the matrimonial property regime to which she is subject, in consequence of the application of customary law, is discriminatory on the basis of race and gender. We argued further that while the Recognition Act recognises the discriminatory consequences of some rules of customary law and aims to provide equal status and capacity of spouses in customary marriages that occurred after 2000, it perpetuates this discrimination in customary marriages concluded before its commencement and is therefore inconsistent with the Constitution and invalid.

Referring to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Judge Leona Theron of the Durban and Coast Local Division of the High Court, agreed and found that the Recognition Act was unfairly discriminatory on two prohibited grounds, namely race and gender, as only black women are subjected to the consequences created by its under-inclusiveness. Accordingly, the learned judge declared Section 7(1), (2) and (3) of the Recognition Act, and Section 20 of the KwaZulu Act and the Natal Code unconstitutional.

It is hoped that the Constitutional Court will agree that women married under customary law prior to the commencement of the Recognition Act may claim the same property-ownership rights and other patrimonial benefits that all other married parties enjoy under South African law.

On such a progressive judgement attorney Sharita Samuel of the LRC’s Durban office said: ‘It is a significant judgment for the majority of women that we represent as it enables them to claim security of tenure and the attendant patrimonial benefits. It gives value to the substance of the equality provision in the most meaningful way.’