Oppressive law on black marriages scrapped

ConCourt rules for in community of property marriages

The Constitutional Court has unanimously ruled that an apartheid-era law that dispossessed black women of their possessions is unconstitutional.

The apex court last week upheld a decision of the Durban High Court that declared a section of the Matrimonial Property Act 88 of 1984 unconstitutional and invalid to the extent that it maintains and perpetuates the discrimination created by a section of the Black Administration Act 38 of 1927.

According to the act, marriages of black couples entered into under the Black Administration Act before 1988 are automatically out of community of property.

The Durban High Court last year ruled in favour of a KwaZulu-Natal pensioner, Agnes Sithole, who despite having married her husband in 1972 and worked towards building the family’s wealth and assets, was considered married out of community of property, with her husband, Gideon, assuming sole responsibility over the family’s assets.

Gideon was planning on selling the ’family home without Agnes s consent and involvement after their marriage had deteriorated.

Agnes and the Commission for Gender Equality had jointly brought the application before the Durban High Court, where the court ruled in their favour, giving her powers over decisions relating to assets the family owned.

The high court ruled that the Black Administration Act had precluded black couples from having their marriage in community of property and that black couples did not enjoy legal protection afforded by marriage in community of property that all South Africans enjoyed.

The Constitutional Court upheld the high court ’ s decision as Gideon had opposed the application for confirmation of the order of the lower court.

In a 28-page judgment penned by justice Zukusa Tshiqi the court found that the Black Administration Act had “indirect unfair discriminatory consequences for women”.

“The evidence led at the high court showed that black women are hard hit by the impugned provisions disproportionately to their husbands and the challenged provisions have far-reaching intersectional effects on black women’s rights compared to their male counterparts,” reads the judgment.

The judgment states that societal dynamics such as patriarchy, gender stereotyping and the inflexible application of oppressive cultural practices are perpetuating the intersectional consequences of the challenged provisions on black women.

The judgment states that all marriages of black persons that are out of community of property and were concluded under section 22(6) of the Black Administration Act before the 1988 amendment are, save for those couples who opt for a marriage out of community of property, declared to be in community of property.

However, spouses who have opted for marriage out of community of property shall, in writing, notify the directorgeneral of the department of home affairs accordingly.