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Johannesburg - A deputy minister’s ex-wife is on a crusade to help thousands of women who married under a discriminatory bantustan law.
In heads of argument filed with the Constitutional Court by Legal Aid SA advocates Lilla Crouse and Chris Schuring, who are representing the 47-year-old unemployed mother of two adult children, say her case highlights the discrimination against women who live in a patriarchal community in the former Transkei.

”In her quest for justice it will be in the applicant’s (ex-wife’s) interest that this honourable court considers the constitutional challenge. Her best interests have not been sufficiently served and protected during the legal process so far. After a marriage of 19 years and raising two children she will be left destitute after the divorce,” reads the document filed with the apex court earlier this month.

According to the court papers, to date there is no legislation making it possible for women married under the Transkei Marriage Act to seek a redistribution of assets on divorce.

“Other women similarly situated as the applicant have historically been discriminated against in many respects. They are often poor and nearly always vulnerable to abuse in a patriarchal system,” her advocates say.

They say that should she ultimately be successful, the standing of women in the community will be elevated and their ability to properly care for themselves after divorce will be improved.

”Persons married in terms of the Transkei Marriage Act are therefore discriminated against on the basis of race, gender, sex, marital status, ethnic or social origin. This discrimination also violates the applicant’s and similarly situated persons’ constitutional rights to dignity,” complain Crouse and Schuring.

They add that the ex-wife is treated as subservient to her husband and has been left destitute after 19 years of marriage and that this violates a number of her most basic constitutional rights.

The reason for the divorce is cited as the former deputy minister “not obeying his ex-wife by fathering children out of wedlock”.

But the deputy minister insists that fathering children outside the bonds of their civil marriage could never constitute a ground for divorce.

The deputy minister, who is also an advocate, illegally married another woman by customary rites while he was civilly married to his ex-wife.

She has asked the Constitutional Court to refer the matter back to the Mthatha Regional Court to determine her proprietary interests and her ex-husband’s.

She has approached the court alleging that in so far as her marriage is out of community of property, sections of the Divorce Act 70 of 1979 are unconstitutional as she and other vulnerable women married in terms of the laws of the former Transkei do not have the right to seek a redistribution of assets on divorce.

The divorce was finalised at the Mthatha Regional Court in 2014 in the ex-wife’s absence and without her having any knowledge that the matter would be before court.

The regional court found that they were married in community of property but the deputy minister appealed to the Mthatha High Court, which came to the same conclusion but for different reasons.

The deputy minister then appealed to the Supreme Court of Appeal, which ruled in June that the couple’s marriage regime was one out of community of property.

Meanwhile, Legal Aid SA has applied to the Constitutional Court, which will hear the matter in March, to join Justice and Correctional Services Minister Michael Masutha in the case.

In its application, Legal Aid SA’s Siyabonga Keka says no court may hear a constitutional challenge without the relevant executive being joined as a party to the proceedings.

Keka blames an oversight for the application not being served on the office of the state attorney, which represents Masutha.

The Sunday Independent