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 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.