The highest court in the land on Thursday declared invalid and unconstitutional a clause in the country’s constitution that excluded this cohort of women from property rights.
In its groundbreaking ruling, the Constitutional Court gave Parliament 24 months to remedy the discriminatory legislation.
In the meantime, though, “wives and husbands (in pre-1998 polygamous customary unions) will have joint and equal ownership and other rights to, and joint and equal rights of management and control over, marital property,” the court said.
Passed by Parliament in 1998, the Recognition of Customary Marriages Act did not extend property rights to women entered into polygamous customary marriages before that year.
The act created disparities between pre-1998 and new polygamous customary marriages. This meant only a woman who married after 1998 could claim her husband’s property after his death or during divorce.
“The discrimination at issue here is so odious” that the act cannot be left as it is, said the Constitutional Court in a judgment read by Justice Mbuyiseli Madlanga.
“Wives in pre-act polygamous customary marriages would continue being subjected to the indignity and repugnant unfair discrimination of being unable to own and control marital property and being at the mercy of their husbands,” said Justice Madlanga.
Being excluded from marital property rendered wives in pre-1998 polygamous marriages on an unequal footing with their husbands, said the court.
“To ask rhetorically, how many husbands would readily give up their position of dominance?” Justice Madlanga questioned.
The court was approached by Matodzi Ramuhashi and Thinamaano Netshituka, two children of a Venda man who married their mothers in customary marriages before 1998.
Musenwa Joseph Netshituka died in 2008, leaving confusion about rights of the offspring he fathered in the polygamous unions to his estate.
The father left control of his estate to Munyadziwa Joyce Netshituka, a fourth wife he identified in his will as having married in community of property. The pair were also in a civil marriage.
The major asset in the father’s estate, which is land where the Why Not Shopping Centre is located in Venda, also fell to the fourth’s wife control.
Justice Madlanga’s ruling means the children can now also enjoy proceeds from the property.
The Women’s Legal Centre Trust, which joined the matter as friend of the court, said the ruling ensures protection of women in polygamous marriages.
“Women married in terms of custom in polygamous marriages prior to the coming into effect of the Recognition of Customary Marriages Act have for a long time carried the burden of discrimination that patriarchy has placed on them.”