Gogo takes fight against apartheid-era legislation to ConCourt

An apartheid-era piece of legislation under which hundreds of thousands of elderly black women around the country are today still being discriminated against, will move a step closer to being scratched from the statute books this month.

In February, the KwaZulu-Natal High Court handed down a ground-breaking judgment throwing out parts of the Matrimonial Property Act, which perpetuated now-repealed laws under which black couples were automatically married out of community of property up until 1988.

The judgment came on the back of a bitter feud between 72-year-old grandmother Agnes Sithole and her husband, who threatened to sell their family home and leave her destitute when their relationship soured after almost 50 years together. The property was registered in his name and as a result, he would have been within his rights to do so.

Sithole ended up going to court and secured an interdict against him. The high court found the legislation which had left Sithole in such dire straits was “so egregious it should not be permitted to remain on our statute books” and that recognition of “the equal worth and dignity of all black couples” was “long overdue”.

It reversed the default position of the time, rendering all black couples’ marriages before 1988 automatically in community of property and referred its judgment to the Constitutional Court for confirmation, with a hearing scheduled for 29 September.

Advocate Geoff Budlender, for Sithole, said denying black couples the choice to marry in community of property under apartheid had exacerbated the vulnerability of black women.

“Women are less likely to be employed than men and if they are employed, are likely to earn less than men. They traditionally bear the main responsibility for house work, bearing children and child care. The unpaid care work performed by women constitutes an invaluable contribution to their families and to society more generally. For Ms Sithole and hundreds of thousands of other black SA women, the performance of this unpaid work has, in effect, penalised them.”

If their husbands chose to “force them from their homes, to dispose of the family assets, or to disinherit them”, Budlender said, they were “left with nothing”.

“They are trapped in a situation in which they have no control over their family’s assets. The consequences are illustrated by Ms Sithole’s position,” he said.

“She has spent her adult life contributing to the joint household and raising the children, yet she cannot enjoy the fruits of her labour. This has been brought about by her marriage being out of community of property as a result of the default position perpetuated by the statute.”

Sithole’s husband has until next week to file his papers.

– bernadettew@citizen.co.za

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