Victory for 400,000 SA black women as marital law ruled unconstitutional

The high court found in favour of the applicants and declared that the act discriminated against black persons married before 1988, in particular, black women.


JOHANNESBURG - Prior to 1988, racist legislation in South Africa stipulated that black couples in civil, registered unions were automatically married out of community of property except under special circumstances. This discriminated against hundreds of thousands of women across the country - until Wednesday, when a court ruling changed all of that.

The Constitutional Court confirmed a previous 2020 ruling by the Durban High Court when it ruled on Wednesday that section 21(2)(a) of the Matrimonial Property Act (MPA) 88 of 1984 was unconstitutional and invalid to the extent that it maintained and perpetuated the discrimination created by section 22(6) of the Black Administration Act 38 of 1927 (the BAA), in that marriages of black couples entered into under the BAA before 1988, were automatically out of community of property.

The original act was repealed in 1988, but did not apply to marriages prior to that.

The matter was first brought before the courts when Agnes Sithole, who married Gideon Sithole in 1972 without knowing that the act determined their marriage to be out of community of property.

The coupled lived and raised their children over the years, while Mrs Sithole ran a small business from home until 1985 when she got a job as a project manager at an engineering firm, allowing her to supplement the household income.

The couple bought a house in the year 2000, which was registered solely under Mr Sithole's name. The couple marriage has over the past few years been rocky due to extra-marital affairs on Mr Sithole's part. Mr Sithole wanted to sell the house, a move which Mrs Sithole opposed.

The fallout over the house led Mrs Sithole to launch an application for an order interdicting and restraining Mr Sithole from selling their home at the Pinetown Magistrates Court. It is during these proceedings that she learned she was married out of community of property and that her husband did not need her consent to sell the property.

Mrs Sithole then approached the Commission for Gender Equality to jointly bring an application before the high court through the Legal Resources Centre to declare section 21(1) and 21(2)(a) of the MPA unconstitutional and invalid on the basis that women who are unable to divorce their husbands or to change the proprietary regime of their marriage will continue to suffer the discriminatory impact of section 22(6) of the BAA, which already disadvantages them.

The high court found in favour of the applicants and declared that the act discriminated against black persons married before 1988, in particular, black women.

All marriages of black persons concluded out of community of property under section 22(6) of the BAA before 1988 were then declared to be marriages in community of property.

Mrs Sithole and the commission took the matter further to the ConCourt, wanting the high court ruling to be confirmed, and that the declaration of invalidity should have a retrospective effect.

Mr Sithole, opposed the ConCourt application and submitted that he and his wife had elected to enter into a marriage out of community of property. Mr Sithole submitted that the ConCourt should not confirm the order of constitutional invalidity in respect of his marriage. He was, however, not successful and the ConCourt confirmed the high court ruling.

This was a victory for an estimated 400,000 black women who were married prior to the repealing in 1988.

The LRC hailed Sithole for her courage in bringing the matter to the courts.

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