Share
Tuesday, December 22, 2020
Share

Nature of the Case

South African Constitutional Court decision upholding the Durban High Court’s order of constitutional invalidity in respect of sections 7(1) and (2) of the Recognition of Customary Marriages Act 120 of 1998 insofar as it relates to customary monogamous marriages; section 20 of the KwaZulu Act; and sections 20 and 22 of the Natal Code, which unfairly discriminated against women in terms of access to and control of family property during and upon the dissolution of customary marriages.

Enforcement of the Decision and Outcomes

The decision of the Constitutional Court in Gumede meant that during or upon dissolution of a customary monogamous marriage, a wife would have equal control and access to property and land.

The Women’s Legal Centre Trust submitted an Amicus Curiae application in the Gumede case on the impact of the decision on polygamous relationships. They argued that declaring Section 7(1) of the Recognition Act unconstitutional and invalid would remove the only statutory provision regulating pre-Act polygamous marriages. The Amicus argued that this gap should be remedied by creating an order to specify the manner in which family and house properties should be transferred upon dissolution of a pre-Act polygamous customary marriage. The Court did not rule on this but drew the legislature’s attention to this gap. However, nine years later, in 2017, the Court finally did address this issue in Matodzi Ramuhovhi v President of the Republic of South Africa. Relying in part on Gumede, the Court found Section 7(1) of the Recognition Act unconstitutional as applied to pre-Act polygamous customary marriages as well.

On 2 September 2019, Parliament enacted the Recognition of Customary Marriages Amendment Bill [12-2019], which amended Sections 7(1) and 7(2) of the Recognition Act. This Bill aimed to finally ensure that the relief granted in both the Gumede and Ramuhovi cases is reflected in the wording of the Recognition Act. As of this writing, the bill was before the National Council of Provinces.

The Gumede and Ramuhovi decisions provided the constitutional foundation for a 2020 positive ruling in Sithole, a decision by the Durban High Court, which affirmed that women married under the civil law prior to the entry into force of legislation applying the community of property regime would nevertheless have equal access to own and inherit property. As of this writing, Sithole is pending before the Constitutional Court.

Significance of the Case

This matter contributes to the advancement of African women’s property rights in South Africa. The Gumede case demonstrates the need for vigilance in unravelling the intersecting elements of discrimination that distinguish women across the world. The hardship of race, gender and pre and post-apartheid discrimination poignantly encapsulate the predicament of women, such as Ms. Gumede, for whom patriarchal structures embedded in daily life had extended to the impermissibility of owning land, remaining subject to marital power and not being allowed to inherit.

Cutting off access to property is an effective means of oppressing women. The potential to own and control land is intrinsically linked to the power to self-determination and access to decision making structures and dialogues. Thus, the Gumede decision represents an important step in the furtherance of equality, the first of a trilogy of cases (Gumede, Ramuhovi, and Sithole) in which LRC aimed to further equality for women, particularly elderly black women, who would have otherwise been unable to acquire any control over or ownership of marital property.

For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.

Groups Involved in the Case