THE courage of four brave women has changed the marital laws affecting all elderly black women in South Africa.
This comes after the Constitutional Court ruled in favour of Elizabeth Gumede, Thokozani Maphumulo, Matodzi Ramuhovhi and Agnes Sithole who were assisted by a Durban-based Legal Resources Centre (LRC) with the aim of reversing oppressive marriage laws that dictated what a woman can or cannot do.
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Attorney Nokuthula Mbele from LRC, said it all began when Elizabeth Gumede contacted their office after her husband instituted divorce proceedings and sought to evict her from the marital home.
“Gumede married in 1968, before the passing of the Recognition Act. The LRC argued on behalf of Gumede that she suffered unfair discrimination by having no access to and control over family property, which would have left her vulnerable and homeless in her old age both during and upon termination of her customary marriage,” said Mbele.
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Mbele said in KwaZulu-Natal, where the Gumede lived, customary law is codified in the KwaZulu Act and Natal Code that provided that the family head, the husband, was the owner of all family property, and the wife had no claim to the property during the marriage or if the marriage dissolved.
When the case was brought before Durban High Court, it found in favour of Gumede was declared unconstitutional and invalid.
In the second case, LRC brought a claim on behalf of Thokozani Maphumulo and the class of women she represented, by applying to the Constitutional Court for a progression from the Gumede judgment to successfully extend the benefit of community of property in favour of wives, who were party to customary polygamous marriages.
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Mbele stated that Constitutional Court upheld the High Court’s ruling of constitutional invalidity and found that the differentiation in rights between pre-act polygamous marriages and new polygamous customary marriages amounted to unfair discrimination.
“The final case of the trilogy challenged the discriminatory legacy of the Black Administration Act, which provided that Black couples who concluded civil marriages under the BAA were automatically married out of community of property. We brought an application on behalf of Agnes Sithole to have s21(2)(a) of the Matrimonial Property Act unconstitutional and invalid to the extent that it maintains and perpetuates the discrimination by denying women access to property during their marriages,” said Mbele.
On April 14, 2021, the laws that perpetuated the denial of Sithole’s access to and control of family property both during and upon the dissolution of her marriage, was struck down by the Constitutional Court, in a bid to foster security of tenure, financial freedom, and dignity in old age.
