Johannesburg - The Constitutional Court has raised concern that some of apartheid's oppressive and discriminatory laws still impact black people’s lives, 27 years into democracy.
Justice Zukisa Tshiqi dropped some stinging words on Wednesdy about the retention of racist laws in her judgment that declared unconstitutional apartheid legislation that rendered all black people’s marriages prior to 1988 automatically out of community of property.
She penned the apex court’s unanimous judgment on the ground-breaking case that 72-year-old Agnes Sithole, from Pinetown in KwaZulu-Natal, pursued against apartheid’s Black Administration Act (BAA).
This piece of legislation meant Sithole’s marriage to Gideon Sithole, entered into on December 16, 1972, was automatically out of community of property by virtue of their race.
She faced the threat of being kicked out of the house they bought in the year 2000 after their relationship soured.
The husband, who died this year at the age of 74, threatened to sell the home, as it was registered under his name.
The wife obtained an interdict to stop him from selling, pending the finalisation of this case.
The Concourt heard that the two were married out of community of property by virtue of their race.
Attempts made in 1988 to reverse the impact of the BAA through the Matrimonial Property Act (MPA) did not assist, the court heard.
Black couples were given two years to change their matrimonial property regime via the MPA.
Those who were unaware of this special dispensation remained married out of community of property, the Bench heard.
Justice Tshiqi affirmed the submissions that most women did not change their matrimonial regimes because they were unaware of their legal rights and the apartheid government did not place emphasis on informing them of their rights.
“For these reasons, few people took up the opportunity to execute and register notarial contracts to modify their matrimonial regime,” said Justice Tshiqi.
The BAA amounted to unfair discrimination, she ruled. She described it as legislation “based on a twisted notion that black and white people were not worthy of the same treatment”.
Women of other races married before 1988 “did not suffer the prejudices suffered by the likes of Mrs Sithole”, said Justice Tshiqi.
“The default position was that they were married in community of property and this meant that assets acquired with their husbands’ income fell into the joint estate and they became co-owners of those assets.”
It was unacceptable that legislations such as the BBA and the MPA, as amended in 1988, said Justice Tshiqi.
“The fact that the ghosts of our ugly past still rear their ghastly heads in the form of provisions like this many years after the advent of democracy is unacceptable,” said Justice Tshiqi.
“The only possible explanation for the retention of these remnants of past discriminatory laws in our statutes is that they have been overlooked.
“The dire consequences suffered by black people as a result of such discriminatory laws make it compelling that such laws should be obliterated from our statutes urgently.”
She ordered that all black people’s marriages concluded before 1988 should be declared to be in community of property, except for those couples who opt for a marriage out of community of property.
“Spouses who have opted for marriage out of community of property shall, in writing, notify the director-general of the Department of Home Affairs accordingly,” Justice Tshiqi said.
The Star