This is a South African Constitutional Court decision finding constitutional invalidity—due to gender and race, ethnic, or social origin discrimination—of Section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 as it pertains to polygamous marriages concluded before the Recognition Act.
This order effectively granted Ms. Maphumulo the legal standing to pursue her rights of ownership to reclaim her home of 25 years.
The Ramuhovhi order was suspended for a period of 24 months to afford Parliament an opportunity to remedy the defect contained in section 7(1) of the Recognition of Customary Marriages Act. The Court also ensured that during this period of suspension spouses to polygamous customary marriages were protected as set out below:
5 (a) Wives and husbands will have joint and equal ownership and other rights to, and joint and equal rights of management and control over marital property, and these rights shall be exercised as follows:
(i) in respect of all house property, by the husband and the wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; and
(ii) in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses.
5 (b) Each spouse retains exclusive rights to her or his personal property.
In October 2019, six weeks before the expiry of the 24-month period, the Minister of Justice and Correctional Development applied to the Constitutional Court for an extension. The respondents did not oppose this application, however, the application was dismissed as the Court determined that the Court Order in the Ramuhovhi case provided that if the defect was not remedied within the allotted 24 months, the protection granted in paragraphs 5(a) and 5(b) of the order would continue to afford protection to spouses of polygamous customary marriages.
On 2 September 2019 Parliament enacted the Recognition of Customary Marriages Amendment Bill [12 -2019]. As of this writing, the bill is before the National Council of Provinces. The objective of this Amendment Bill is to give effect to the Constitutional Court rulings in both the Gumede and Ramuhovhi cases.
The Legal Resources Centre’s applications on behalf of Gumede and Maphumulo in the Ramuhovhi matters sought to promote substantive equality for women and afford relief to elderly African women disadvantaged in marriage due to a legacy of discriminatory legislation.
Land and property are essential to securing financial freedom, and the laws challenged in these cases discriminated against women on the basis of race, gender, and age. The potential to own and control land is intrinsically linked to the power to self-determination and access to decision-making structures and dialogues.
For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.
