Boost for customary marriages
ConCourt says wives have equal rights to control marital property
Husband and wives in polygamous marriages now have equal rights of management and control over their marital property.
Yesterday, the Constitutional Court confirmed an order of the Limpopo High Court which declared Section 7 (1) of the Recognition of Customary Marriages Act of 1998 invalid because it discriminated unfairly against women in customary marriages.
The effect of the section was to exclude women who entered into customary marriages before 1998, when the law was enacted, from rights to manage their marital property.
The applicants in the case were Matodzi Ramuhovhi (born Netshituka) and Thinamaano Netshituka, whose polygamous father Masewa Netshituka died in 2008.
In his will, he said he was only married in community of property to his fourth wife Joyce Netshituka. He left his share of the “joint estate” to all his wives and their children.
The court noted that there was still a dispute between the applicants and Joyce about the ownership of the land on which Why Not Shopping Centre is located. The shopping centre in Thohoyandou is now valued at more than R10-million.
The ConCourt also admitted Thokozani Maphumulo, whose late polygamous husband Musawenkosi Maphumulo left his whole estate to his eldest son (Simiso) by his first wife, as an intervening party in the case.
Simiso had initiated legal action to evict Thokozani from her home in KwaMashu, Durban, which she said was registered in her husband’s name only because “discriminatory laws at the time prevented black women from owning property”.
The court ordered that all house property will now be owned equally by the husband and wife “jointly and in the best interests of the family”.
In the case of family property, these rights will be managed jointly by the husband and all wives “in the best interest of the whole family”.
The court has, however, suspended the declaration of invalidity for 24 months to give parliament time to remedy the defect in the law that makes the section constitutionally invalid.
Polygamist Musa Mseleku, who is famous for reality TV show Uthando Nes’thembu, welcomed the ruling, saying it brought fairness to polygamous marriages.
The husband of four said: “Polygamy is about equality. Once the practices expose one party to an unfair practice, then it’s no longer about equality. So if the court comes with a ruling that brings equality, I will support that ruling.”
Sharita Samuel of the Legal Resources Centre, which represented Maphumulo, described the ruling as a “huge advancement” for the proprietary rights of vulnerable women in customary marriages.
“It once again endorses the fact that there should be no discrimination against anybody on the basis of gender.”