Landmark rulings against patriarchy

Case #1 Elizabeth Gumede

In 2008, the LRC represented Ms Gumede in the case Elizabeth Gumede versus the President of RSA. The Gumedes were married in 1968 and, therefore, their marriage was governed by customary law regulated by apartheid-era legislation, the KwaZulu Act and Natal Code which stipulated that a husband is the owner of all family property.

When Mr Gumede brought divorce proceedings against Ms Gumede, the LRC challenged the constitutionality of Section 7 of the RCMA which would have left Ms Gumede vulnerable and homeless in her old age. The Constitutional Court confirmed that Section 7(1) of the RCMA was inconsistent with the Constitution and invalid to the extent that its provisions related to monogamous customary marriages.

Case #2 Thokozani Maphumulo

In 2017, the LRC represented Ms Maphumulo, the intervening applicant in Ramuhovhi versus the President of RSA. Ms Maphumulo was the second wife in a pre-RCMA polygamous customary marriage and faced eviction from her home upon her husband’s death.

The Constitutional Court declared Section 7(1) of the RCMA invalid with the Constitution, insofar as it applied to polygamous customary marriages but gave Parliament an opportunity to correct the defect within 24 months.

On March 2, 2021, Parliament passed the RCMA Amendment Bill. The amendment will ensure that the default position for all customary marriages will be in community of property, unless stipulated otherwise in an antenuptial contract. The bill also ensures that spouses in more than one customary marriage have joint and equal ownership rights and rights of management and control over marital property. The provisions would not invalidate the winding up of a deceased estate that was finalised or the transfer of marital property where the person receiving transfer was not aware that the marital property was subject to a legal challenge.

Case #3 Sithole’s case

Agnes Sithole (see main story) challenged Section 21(2)(a) of the Matrimonial Property Act, on the basis that it maintained and perpetuated the discrimination created by Section 22(6) of the Black Administration Act which deemed marriages between black couples to be out of community of property.