Cape Town – The Legal Resource Centre (LRC) has welcomed the “obliteration” of a law that previously discriminated against hundreds of thousands of black women due to past legislation that automatically registered marriages out of community of property.
This follows a ruling made on Wednesday by the Constitutional Court, confirming a previous judgment by the Durban High Court in 2020, that section 21(2)(a) of the Matrimonial Property Act (MPA), which states that marriages of black couples entered into before 1998 were automatically out of community of property, is unconstitutional and invalid.
The LRC represented Agnes Sithole whose marriage to Gideon was under the MPA.
The couple were married in 1972, however, their relationship deteriorated.
According to court papers, this resulted in Gideon wanting to sell their family home which was purchased by Agnes in 2000 as she had a home-based business selling clothing and a job as a project manager at an engineering firm.
Agnes then launched the application for an order interdicting and restraining her husband from selling their home, which is when she learned that she was married out of community of property and her husband didn’t need her consent to sell the property as it was registered in his name.
Anges then lodged an application to have section 21(2) declared unconstitutional and invalid.
Her husband opposed the application and submitted that he and his wife had elected to enter into a marriage out of community of property and submitted that the court should not confirm the order of constitutional invalidity in respect of his marriage.
In a unanimous judgment, the court pointed out that: “The only possible explanation for the retention of these remnants of past discriminatory laws in our statuses is that they have been overlooked.”
As a result, Agnes and an estimated 400 000 black elderly women were granted relief as the court ruled the provision of section 21(2) of the MPA is unconstitutional and invalid.
The LRC was pleased with the judgment.
“Our clients are courageous women who have made history and the LRC is privileged to have walked this journey with them,” the organisation said.
Cape Times