Relevant Factual Background
Mr Sithole and Ms Sithole got married on 16 December 1972 in terms of section 22(6) of the BAA. In 2000, they purchased their matrimonial home which was registered in the name of Mr Sithole. Their relationship started deteriorating, and Mr Sithole then threatened to sell the matrimonial home. Ms Sithole approached the High Court to seek intervention and argue that the provisions of section 21(1) and 21(2)(a) of the MPA are unconstitutional because it unfairly discriminated on the basis of race and gender and should be declared invalid.
The High Court (“HC”):
- The HC ruled in Ms Sithole’s favour and declared that section 21(2)(a) of the MPA was unconstitutional; and invalid to the extent that it maintains and perpetuates the discrimination brought about by section 22(6) of the BAA i.e. that marriages entered into before 1988, by black persons, are automatically out of community of property.
- The HC ordered that all marriages of black persons concluded in terms of section 22(6) of the BAA are declared to be marriages in community of property from the date of its order; and permitted parties who wished to opt out to do so by executing and registering a notarial contract.
- The matter was referred to the Constitutional Court for confirmation in terms of section 172(2)(a) of the Constitution.
The Constitutional Court (“CC”):
The Constitutional Court held that the dire consequences suffered by black people as a result of such discriminatory laws made it compelling that such laws be urgently obliterated from our statutes. It found section 21(2)(a) of the MPA to be unfairly discriminatory and such discrimination was not justifiable under section 36 of the Constitution. The CC accordingly confirmed the HC’s declaration of constitutional invalidity and the retrospective effect thereof.
Important considerations from this case:
Powers of the Constitutional Court:
- The CC did not limit the retrospective effect of the declaration of invalidity; or suspend the declaration of invalidity to allow the legislature to cure the constitutional defect because the Second Respondent (the Minister of Justice and Correctional Services) did not request this relief. Section 167(5) of the Constitution permits the CC to make a final decision whether an Act of Parliament is constitutional and to confirm any order of invalidity made by any court a quo, before such an order may come into effect. It is on this basis that the CC did not overstep its powers and had the authority to grant an order that does not limit the retrospective effect of the declaration of invalidity.
- An expert affidavit filed by the Applicant confirmed that despite the measures implemented by the MPA, research has showed that men believe that they should be the primary decision-maker at home and such men are unlikely to agree to change the matrimonial property system, when such a change would shift a significant portion of the decision-making power to their wives. The judgment therefore implements the automatic change in the matrimonial property regime, without requiring the consent of the other spouse.
- Additionally, the CC held that the retrospective regime which the court order would permit is properly aligned with the prospective regime created by Parliament for other couples of other racial groups and the effect is that the default position in all marriages would be marriages in community of property. Accordingly, the court did not deem it necessary to refer this matter back to the legislature.
- The expert affidavit demonstrated that there are more than 400 000 women who could be in the same position as Ms Sithole and would benefit from the declaration of invalidity. The Applicants relied on the Gumede and Ramuhovhi cases in their submissions and held that in both cases, the Court found the Act in breach of the constitutional rights to equality and dignity and the court made an order in the circumstances that was just and equitable.
- The Applicants submitted that even if a woman was potentially able to obtain the consent of her husband to change their matrimonial property regime; this protection is only available if she has knowledge of her rights and the necessary access to legal services, to enable her to approach a court and/or arrange the execution and registration of a notarial contract. A substantial portion of the women married under the BAA are not in such a position and referring the matter back to the legislature would reinforce discriminatory laws in our statutes and delay the intention of the CC that such laws should be urgently obliterated.
- The Applicants, therefore; requested that the CC confirm the order of the court a quo and submitted that because the statutory provision was found to be inconsistent with the Constitution, the CC should declare it to be unconstitutional and make an order that is just and equitable.
- By placing black women whose marriages were concluded, before 2 December 1988, in the same position as women of all other races whose marriages were concluded in the same period, the judgment achieves both formal and substantive equality. The right to equality is reinforced because black women do not have to apply to a court to change their matrimonial property regime; neither do they have to obtain the consent of their partners to give effect to such a change in their marital regime.
- By confirming the declaration of invalidity, this judgment ensures that legislation which was in place and which reinforced the subordination of black women who were already facing multi-faceted forms of discrimination and disadvantage is done away with and black women are treated as substantive equals to women of other races.
The automatic change in matrimonial regimes raises a number of practical considerations which attorneys should be aware of when advising their clients.
- The judgement is retrospective. Meaning, with effect from 14 April 2021, all marriages in terms of the BAA that were automatically out of community of property are now in community of property; unless the couples specifically opt out.
- Couples who wish to opt out of the in community of property must notify the Director-General of the Department of Home Affairs in writing of such a decision.
- In terms of the judgment, for those couples who are not aware of this judgement and upon death of their spouse establish that their marriage is in community of property, a generic order is made in favour of a person claiming specific prejudice arising from the retrospective change of the matrimonial regime to approach a competent court for appropriate relief.
- The retrospective effect of the judgment does not, however; affect the legal consequences of any act or omission existing in relation to a marriage before the CC order was made and the order does not undo completed transactions in terms of which ownership of property belonging to any of the affected spouses has since passed to third parties.
In South Africa where black women face dual oppression, this judgment addresses the historical unfair discrimination and inequality faced by black women by affording them the same protection of the law that women of other races enjoy.
We are currently unable to determine whether black women will indeed benefit from this judgement in the future. However; this judgement also makes provision for persons claiming specific prejudice (arising from the retrospective change of the matrimonial regime) to approach a competent court for appropriate relief, thus making it a balanced judgement.
The power of our Courts to develop the law in line with our Constitutional values (in instances where the legislature has failed) and provide relief to vulnerable members of society is reinforced by this judgement.
Associate, Andricia Hinckemann
Associate, Asithandile Liwela
 Gumede v President of Republic of South Africa and others 2009 (3) SA 152 (CC).
 Ramuhovhi and others v President of the Republic of South Africa and others 2018 (2) SA 1 (CC).