Elizabeth Gumede vs. President of the Republic of South Africa and Others
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.
The Gumedes were married in 1968, before the Recognition of Customary Marriages Act 120 of 1998, which entered into force on November 15, 2000. Section 7(1) of the Recognition Act provided that customary marriages entered into prior to the date of the commencement of the Act (old marriages) were governed by customary law, while section 7(2) provided that customary marriages entered into after the date of commencement of the Act (new marriages) were marriages in community of property. Ms. Gumede was directly affected by Section 7 after Mr. Gumede instituted divorce proceedings against her because their marriage fell under the “old” category.
In KwaZulu-Natal, where the Gumedes lived, customary law is codified in the KwaZulu Act and Natal Code. Section 20 of the KwaZulu Act and section 20 of the Natal Code stated that the family head, the husband, was the owner of all family property, and the wife had no claim to the property during the course of the marriage or if the marriage ended. Furthermore, Section 22 of the Natal Code provided that “inmates” of a kraal were under the control of the family head.
The Legal Resources Centre (LRC) brought an application on behalf of Elizabeth Gumede to challenge the constitutionality of Section 7 of the Recognition Act, arguing that Ms. Gumede suffered unfair discrimination by having no access to and control over family property, as it left her vulnerable and homeless in her old age both during and upon termination of her customary marriage. This LRC application to the High Court was opposed by the government.
The High Court found in favor of Ms. Gumede and declared Section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 (“Recognition Act”) unconstitutional and invalid; the inclusion of the words “entered into after the commencement of this Act” in Section 7(2) of the Recognition Act was declared inconsistent with the Constitution and invalid; Section 20 of the KwaZulu Act on the Code of Zulu Law (KwaZulu Act) and Sections 20 and 22 of the Natal Code or Zulu Law (Natal Code) were also declared unconstitutional. The court held the provisions offended Sections 9(3) and (5) of the South African Constitution, as they unfairly discriminated against women on the grounds of gender and race. Specifically, the High Court found that these provisions discriminated against women in terms of access to and control of family property during and upon dissolution of customary marriages.
Following the decision of the Durban High Court, LRC, on behalf of Elizabeth Gumede, applied to the Constitutional Court for confirmation of the holdings in light of Section 172(2)(a) of the Constitution.
As an initial matter, the Constitutional Court found that the fact that a divorce court had the power, under Section 8(4)(a) of the Recognition Act, to transfer property from one spouse to another if justice and equity required it, did not justify the unfair gender discrimination, both because this provision did not address the discrimination against women while married, and because women and men did not start on equal footing, in terms of property, in divorce court.
The Court also found that the customary marriages concluded before the enactment of the Recognition Act fostered a “particularly crude and gendered form of inequality.” Discrimination between women in new versus old marriages treated those in old marriages as unfit to possess property and excluded them from any financial protection, which violated their right to dignity and equality.
The Constitutional Court upheld the High Court’s order of constitutional invalidity in regard to Sections 7(1) and (2) of the Recognition Act, Section 20 of the KwaZulu Act, and Sections 20 and 22 of the Natal Code. The effect of the Court order is that all monogamous marriages concluded before the commencement of the Recognition Act, except for those which have been terminated by death or divorce prior to the Court ruling, are deemed to be marriages in community of property.
The Court, however, made it clear that this applies only to monogamous customary marriages and made no ruling with respect to polygamous customary marriages.
The Constitution specifically stipulates in section 39(2) that courts are not only required to apply customary law but also to develop it. The Constitutional Court can develop customary law as long as the Court promotes the “spirit, purport and objects” of the Bill of Rights.
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.
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.