The Legal Resources Centre (LRC) obtained judgment in the Durban High Court on 24 January 2020, on behalf of Ms. Agnes Sithole and the Commission for Gender Equality, in a challenge to the application of sections 21(1) and 21(2) (a) of the Matrimonial Property Act 88 of 1984 (MPA) which perpetuated the effect of the now-repealed section 22(6) provision of the Black Administration Act 38 of 1927 (BAA).
Ms. Sithole, the first applicant, acted in her own interest and in the public interest on behalf of all affected South African women, whose right to access property and financial security in marriage was in issue in this case. There are approximately 400,000 women affected by the provisions of section 22 (6) of the BAA.
Black couples who married before 1988, had their marriages concluded under section 22(6) of the BAA which meant that they were automatically out of community of property. Despite the Marriage and Matrimonial Property Amendment Act 3 of 1988 (MMPAA) repealing section 22(6) of the BAA and allowing couples to change their marital regime, this was not enough to ameliorate the discrimination suffered by Ms. Sithole and other women like her. The MMPAA maintained the default marital property regime of out of community of property, a default which applied only to black couples married before 1988 and thus discriminated against black women on the grounds of both gender and race. The default position created by section 22(6) of the BAA meant that a wife in such a marriage acquired no assets, had no control over the assets and her husband could deal or dispose of the assets without any consideration or consultation with her and definitely did not require her consent.
The Black Administration Act continues to adversely affect the lives of black women some 30 years after section 22(6) was repealed. LRC argued to cure the discrimination and were successful in obtaining the following relief:
- A declaration that the provisions of s 21(2)(a) of the Matrimonial Property Act 88 of 1984 is unconstitutional and invalid to the extent that it maintains and perpetrates the discrimination created by s 22(6) of the Black Administration Act 98 of 1927, in that marriages of black couples, entered into under the BAA before 1988, are automatically out of community of property;
- A declaration that all marriages concluded out of community of property under section 22(6) of the Black Administration Act are declared to be marriages in community of property;
- That a spouse in a marriage declared to be in community of property in terms of the above paragraph, may apply to the High Court for an order that the marriage shall be out of community of property;
- In terms of s 172(1)(b) of the Constitution, the orders above shall not affect the legal consequences of any act done or omission or fact existing in relation to a marriage before this order was made.
In his judgment handed down on 24 January 2020, Madondo DJP explains that "The discrimination the impugned provisions perpetrate is so egregious that it should not be permitted to remain on our statute books… The recognition of the equal worth and dignity of all black couples of a civil marriage is long overdue."
The Legal Resources Centre welcomes this decision and the positive impact it will have on the lives of hundreds of thousands of women. LRC attorney, Sharita Samuel stated that the LRC was pleased that the Durban High Court came to the assistance of Ms Sithole and other elderly African women in the same position. According to Samuel, the Sithole judgment now formed a trilogy with the Gumede and Maphumulo judgments – also argued by Advocate Geoff Budlender, on an issue that the LRC is committed to protect and advance – namely the right of African women to acquire, control and own land or any other asset – like any other South African citizen.