Sithole and Another v Sithole and Another  ZACC 7
South African Constitutional Court decision upholding the Durban High Court’s order of constitutional invalidity of section 21(2)(a) of the Matrimonial Property Act 88 of 1984 to the extent that it maintains and perpetuates racial and gender discrimination against Black women.
The Legal Resources Centre (LRC) represented Mrs. Agnes Sithole, a seventy-two-year-old woman living in KwaZulu-Natal who married Gideon Sithole in 1972 out of community of property in terms of section 22(6) of the Black Administration Act 38 of 1927 (BAA) and the Commission for Gender Equality in a challenge to the Matrimonial Property Act of 1984. Between 1972 and 1985 Mrs. Sithole worked as a housewife and ran a home-based clothing business successfully to educate her children and assist the family household expenses. After the relationship between Mr. and Mrs. Sithole deteriorated, Mr. Sithole threatened to sell their family home. The LRC assisted Mrs. Sithole to interdict the sale of their home until the constitutional challenge was concluded. Mrs. Sithole did not seek remedy through section 7(3) to (5) of the Divorce Act, that grants the court discretion to order redistribution of marital property in respect of couples married out of community of property, as her Roman Catholic Church faith did not favour divorce and she did not believe she had to resort to divorce to assert her right to her share of the marital property.
In terms of section 22(6) of the BAA all marriages concluded by Black persons were automatically out of community of property, except where a declaration of community of property was signed within 30 days of the marriage. On the other hand, the default marital regime for all other race groups was community of property unless they elected to sign ante nuptial contracts. Parliament attempted to ameliorate the discrimination in section 22(6) of the BAA by repealing the provision with the Matrimonial Property Amendment Act 3 of 1988. The Amendment Act inserted sections 21(2)(a) and s25(3) into the Matrimonial Property Act 88 of 1984 (MPA), thereby granting persons married out of community of property under section 22(6) of the BAA the opportunity to alter their matrimonial property regime from out of community of property to in community of property within two years of 2 December 1998. There is little to no evidence that affected parties were informed of these amendments by the apartheid government or the post-constitutional order. As a result, Mrs. Sithole, like many other women in her situation, was unaware of the amendment. The amendment did not in any event substantively redress the discrimination, but rather imposed a duty on Black couples who wished to alter their matrimonial regimes to community of property to require consent of both parties. In requiring spousal consent, the Act assumed that the vulnerable party would succeed in obtaining such spousal consent to alter the matrimonial property regime to community of property. In reality, the financially powerful spouse was not amenable to relinquishing or sharing ownership and control of marital property leaving women such as Mrs. Sithole to bear the burden of seeking individual legal redress. This discriminatory law remained in our statute and failed to remedy the prejudice faced by Black women such as Mrs. Sithole despite the new constitutional dispensation.
In deciding to uphold the High Court’s decision secured by the LRC, the Constitutional Court relied on the principles enunciated in Harksen v. Lane N.O:
(1) Does the provision differentiate between categories of people, and if so, is there a rational connection between the differentiation and a legitimate government purpose?
(2) Does the differentiation amount to discrimination? Is the discrimination unfair?
(3) Can the discrimination be justified under the limitations clause of the Constitution?
The Court answered the first and second questions in the affirmative, finding that section 21(2)(a) of the MPA differentiated between Black and non-Black people without a legitimate government purpose. While section 21(2)(a) appeared to remove discrimination on its face, it only provided formal equality and not substantive equality as required by the Constitution: “When examining the constitutionality of section 21(2)(a), the emphasis should not be on the fact that it provided an option for Black couples to convert their marriages, but rather on its failure to level the playing field and place marriages of Black people under the same umbrella as marriages of couples of other racial groups.” The Court further remarked that, “Societal dynamics such as patriarchy, gender stereotyping, inflexible application of oppressive cultural practices perpetuates the intersectional consequences of the challenged provisions on Black women.” The Court went on to pronounce the many ways that Black women have been disadvantaged by out of community of property regimes, including the inherent vulnerability of women’s reliance on their husbands.
In deciding question three, the Court stated simply that the law “resulted from a legislated, deliberate, unjust and senseless system of separation between races that was based on a twisted notion that Black and white people were not worthy of the same treatment,” and must be “obliterated.” The Court thus upheld the High Court’s order, ruling that section 21(2)(a) of the MPA is unconstitutional and invalid and that all marriages pursuant to section 22(6) of the BAA are now declared to be in community of property (unless the couple elects an ante nuptial contract).
The order granted by the Constitutional Court in Sithole reversed the deep historical discrimination inflicted by oppressive apartheid marriage laws to enable Black women married under the BAA to have equal access to own and control property.
The Legal Resources Centre will monitor the implementation of the Constitutional Court order by the Department of Justice and Correctional Services including its communications on the order and findings of this judgment to members of the public as well as the plans of the Portfolio Committee and the Department of Justice progress to effect a formal amendment to the impugned provisions of the Matrimonial Property Act.
According to the expert report filed by the social policy expert in support of the relief sought by the LRC on behalf of Mrs Sithole and in the public interest, the judgment will impact more than 400,000 women who were in the same position as Mrs. Sithole. The judgment advances gender, age, racial, land, and property rights of Black women, by enabling them to assert ownership of marital property and exercise control over their financial wellbeing and agency to participate in decision making structures for the right to self-determination.
This case is the third in a trilogy of landmark judgments addressing matrimonial property rights for Black women in South Africa. Together with Gumede, decided in 2008, and Ramuhovhi, decided in 2017, Sithole provides significant relief to elderly Black women by recognizing their right to acquire control over and ownership of marital property.
The Legal Resources Centre has walked this journey with these courageous women in their fight for substantive financial equality and dignity under the law for access to the property that they work hard to build and maintain. The LRC’s land rights work aims to assist in the realization of the constitutional imperative that the state must take all necessary steps to foster access to land and property on an equitable basis to redress historical discrimination.
For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.