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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, G QEBERHA )

Case No.: 2252/2024
Date Heard: 10 October 2024
Date Delivered: 04 February 2025

In the matter between:

G[...] D[...] Appplicant

and

THE MINISTER OF HOME AFFAIRS First Respondent

THE MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Second Respondent

G[...] D[...] Third Respondent

JUDGMENT

RONAASEN AJ:

Introduction

General

[1] The purpose of this application, as described in the founding affidavit , is to obtain an
order declaring section 7(7) (c) of the Divorce Act, 70 of 1979 (“the impugned section ”)
unconstitutional and invalid . The fundamental problem with the impugned section, so
it is contended, is that it excludes pension interests from the redistribution remedy that
is now available in respect of all marriages concluded out of community of property
and without accrual , regardless of the date of th eir conclusion .

[2] Section 7(3) of the Divorce Act , as originally formulated , provide d for a redistribution of
assets upon dissolution of a marriage concluded out of community of property , by
divorce , in certain circumstance s. Section 7 (3)(a) of the Divorce Act restricted the
remedy of redistribution to marriages out of community of property and without accrual
that had been concluded before 1 November 1984 - the date on which the Matrimonial
Property Act , 88 of 1984 took effect . From that date the latter Act made accrual -
sharing available to parties to a marriage out of community of property . It was
considered that marriages concluded after that date did not require redistribution as
the parties were free to agree to accrual.

[3] In a sea change the Constitutional Court handed down judgment in KG v Minister of
Home Affairs and Others 2024 (2) SA 1 (CC) (“KG”), on 10 October 2023 , in terms of
which it declared that section 7(3)(a) of the Divorce Act was unconstitutional and
invalid for confining the redistribution of assets to marriages out of community of
property and without accrual, concluded prior to 1 November 1984 . It held t hat, from
the date of its judgment , the section 7(3) redistribution remedy would apply to all
marriages out of community of property , in terms of which accrual -sharing has been
excluded .

[4] The impugned section, however, did not enjoy the attention of the Constitutional Court
in KG. Section 7(7)( a) of the Divorce Act provides that for the determination of the
patrimonial benefits to which the parties to any divorce may be entitled (which would
include redistribution) the pension interest (as defined in the Divorce Act) of a party
shall be deemed to be part of his/her assets, subject to the qualification in the
impugned section . In terms of the impugned section 7(7)(a ) “shall not apply to a
divorce action in respect of a marriage out of community of property ent ered into on or
after 1 November 1984 in terms of an antenuptial contract by which community of
property , community of profit or loss and the accrual system are excluded ”.

[5] Thus, while the distinction between pre - and post -1984 marriages , as embodied in
section 7(3 )(a) of the Divorce Act, has been declared unconstitutional and invalid , that
distinction remains in respect of pension interests , keeping them immune from the
redistribution remedy now applicable to all other assets. Hence this application to
declare the impugned section unconstitutional and invalid .

The parties to this applicatio n

[6] The following persons are the parties to this application:

6.1. the applicant, who is G[...] D[...] (“Mrs D[...] ”). She states that she bring s this
application in her personal capacity, but also on behalf of all spouses who are
impacted by the impugned section ;

6.2. the first respondent, who is the Minister of Home Affairs and who is the
Minister responsible for the administration of the Divorce Act (“the Minister”);

6.3. the second respondent, who is the Minister of Justice and Constitutional
Development and who is joined to the extent that he may have an interest in
its outcome; and

6.4. the third respondent, who is G[...] D[...] (“Mr D[...] ).

The divorce action

[7] Mr and Mrs D[...] were married to each other on 25 April 2004, out of communi ty of
property, with the exclusion of the accrual system. The antenuptial contract concluded
by them on 23 April 2004 records that the re would be no community of property and
loss between them and that the accrual system would not apply to their marriage.

[8] Mrs D[...] state s that, although she did engage in projects that were designed to
achieve a profit during the subsistence of the marriage , her primary focus during the
marriage was the management of the family home and supporting Mr D[...] in his
career and in his business and personal endeavours . Her role, like the role of many
women, included caring for the three children born of the marriage (all of whom are
still minors) , prioritising the ir development and well -being and their best interests ,
running and maintaining the family home and prioritising the third resp ondent’s career
and business aspirations, his activities and his personal endeavours in numerous
ways. Her efforts materially contributed to the growth and maintenance of Mr D[...] ’s
estate.

[9] By reason of the alleged irretrievable breakdown of the marriage relationship Mrs D[...]
instituted an action for divorce against Mr D[...] , on 13 October 2020 , in this Court . In
terms of her amended particulars of claim she now also seeks relief in the f orm of a
redistribution of Mr D[...] ’s assets, inclusive of assets ostensibly held in a trust, in her
favour . Mr D[...] has defend ed the action and disputes her entitlement to any form of
favourable redistribution.

[10] Mrs D[...] states that she is unaware of the extent of Mr D[...] ’s pension interests but
that he does have such interests in the form of retirement annuities (which form part of
the definition of a pension interest in the Divorce Act) . She estimates the value of hi s
retirement annuity policies at the sum of R1 500 000.00.

[11] In her amended pleadings in the divorce action Mrs D[...] indicated her intention of
bringing the present application to declare the impugned section unconstitutional and
invalid , to ensure that in, calculating the value of the estate of Mr D[...] , his pension
interest would be taken into account.

The relief sought by Mrs D[...] in this application

[12] Against the background set out in the preceding paragraphs, Mrs D[...] asks for relief
in the form of orders:

12.1. declaring that the impugned section is inconsistent with the Constitution and
accordingly invalid ;

12.2. stating that the order envisaged in the preceding sub -paragraph shall not
affect the legal consequences of any act done or omission or fact existing
before the order was made in relation to a marriage concluded on or after 1
November 1984 ;

12.3. directing the Registrar of this Court to lodge a copy my judgment an d orders
with the Registrar of the Constitutional Court, within 15 days of the date of the
judgment and orders; and

12.4. directing the Minister to pay her costs , with the costs of counsel to be taxed on
scale C.

[13] None of t he respondents have opposed this application.

The legislative history of section 7 (7) of the Divorce Act

[14] The date of commencement of the Divorce Act was 1 July 1979 . The Act , as it then
read, contained no reference to pension interests .

[15] In August 1987 the South African Law Reform Commission issued a report on its
“Investigation into the Possibility of Making Provision for a Divorced Woman to Share
in the Pension Benefits of her Former Husband (Project 41)” . The report resulted in
an amen dment to the Divorce Act , with effect from 1 August 1989 , in terms of the
Divorce Amendment Act, 7 of 1989 the object of which was said to be “ To amend the
Divorce Act, 1979, so as to provide that a party to a divorce action may share in the
pension interest of the other party and to provide for matters connected therewith .”
Pursuant to the amendment the definition s of a “ pension interest ” and a “ pension fund ”
as well as section 7(7) were included in the Divorce Act.

[16] Section 7(7)( a) confirmed that in determining the patrimonial benefits to which a party
to a divorce action may be entitled his/her pension interest would be deemed to be
part of his/her assets.

Mrs D[...]’s case

[17] Mrs D[...] contends that she is entitled to the relief she seeks as the impugned section
is a “ lingering constitutional flaw in the Divorce Act .” It excludes one category of
assets , namely pension interests, from redistribution despite the advent of a post -KG
section 7(3 ).

[18] The impugned section, so it is submitted , is unconstitutional for two reasons :

18.1. it is irrational . In a post -KG world, there is no rational reason for the exclusion
of pension interests from redistribution;

18.2. it is unfair discrimination on the basis of sex and gender. The re ason KG
declared section 7(3) unconstitutional and invalid is that, “ while facially
neutral ” it had a disproportional impact on women who were more likely to be
the economically weaker partner . The same logic applies to all asset s
including pension interests. The evidence shows that men are more likely to
have pensions and are likely to have larger pension s.

[19] Mrs D[...] does not ask that the order I make should have retrospective effect.

The expert evidence

[20] Mrs D[...] presents three persuasive forms of expert evidence to establish that the
exclusion of pension interests in terms of the impugned section has a disproportionate
impact on women.

[21] In the first instance she relies on the evidence presented in the Consti tutional Court in
KG and relied upon by the court at [115]. In summary, this evidence shows that:

21.1. women typically enter into marriage poorer and more dependent than men
and having less bargaining power;

21.2. women are less securely employed and concentrated in employment sectors
less advantageous in remuneration than men. As a result, South Africa h as
amongst the highest mean and median gender income gaps;

21.3. women are more likely to perform unremunerated work in the household than
men who are more likely to perform remunerated work; and

21.4. in the final analysis this means that the exclusion of post -1984 marriages from
section 7 (3) has a great impact on women than on men.

[22] Mrs D[...] also commissioned an additional expert report from Professor Bonthuys ,
which deals specifically with the question as to whether pension interest s follow a
similar gendered distribution to work and wealth . She concludes as follows:

22.1. there is no clear evidence on respect ive retirement contributions and income
for men and women. The following d oes emerge:

22.1.1. in OECD countries women’s retirement entitlements are 27% lower
than men’s;

22.1.2. despite the absence of clear South African data in published journals
there is “ no clear reason why a gender pensions gap, which has been
clearly demonstrated in other countries, would not also manifest in this
country. Certain standard demographic and labour market features
would tend to support the inference that women would tend t o have
less access to retirement savings than men ”;

22.2. in addition to general factors that reflect women’s inferior economic position
there are additional factors that affect their access to retirement benefits :

22.2.1. women’ s longer life expectancy means that any pension savings
would have to cover a longer period of post -retirement living;

22.2.2. women are more likely to be widowed then men, thus depriving them
of the economic support of male partners; and

22.2.3. “women’ s traditional patterns of unpaid care work tend to be linked
with fewer average years of paid work, relatively high representation
in part -time work and gender gaps in earnings and lifetime incomes ”;

22.3. all of these are present in South Africa. The re sult is that “ women by the ir
disproportionate household and caring labour make indirect contributions to
the growth of the ir male partners’ estates, including to the ir future pension
benefits on the assumption that they will eventually share in these benefits ”.

[23] Third, Mrs D[...] relies on the evidence of Mr Boshoff, an actuary and a fellow of the
Actuarial Society, who provided the following unchallenged expert evidence:

23.1. on average , women in South Africa are expected to retire with approximately
71% of the wealth accumulated by men and just 74% of the retirement
income;

23.2. not only do men have larger pension interests, but they are also more likely to
have pension savings at all. 45.5% of men have pension savings compared
to only 43.4% of women; and

23.3. this is a result of the ongoing gender employment and wage gap. Women are
less likely to be employed and where they are they earn less than men . They
therefore contribute less towards their pensions.

[24] In summary, the reasons why the impugned section has a disproportionate impact on
women applies equally to pension interest s as it does to any other asset . Women’s
disadvantaged e conomic position means that they are less likely to have pensions ,
and likely to have smaller pensions. They are therefore more likely to be prejudiced
by the absence of a r edistribution remedy in respect of those assets than men.

The Divorce Act

[25] The two principal provisions in the Divorce Act which require consideration are section
7(3) and the impugned section.

[26] Prior to the judgment in KG the salient portions of section 7(3) read like this:

(7)(3) A court granting a decree of divorce in respect of a marriage out of community
of property –

(a) entered into before the commencement of the Matrimonial Property Act,
1984 , in terms of an antenuptial contract by which community of
property, community of profit and loss and accrual sharing in any form
are excluded;
…
may, subject to the provision s of subsections (4), (5) and (6), on application
by one of the parties to that marriage, in the absence of any agreement
between them regarding the division of their assets, order that such assets, or
such part of the assets, of the other party as the court may deem just, be
transferred to the first -mentioned party. (My emphasis).

[27] Sections 7(4)-(6) deal with the circumstances under which a distribution order can be
made.

[28] KG declared the limitation of the redistribution remedy in section 7(3) (a) to post -1984
marriages to be unconstitutional and invalid. The order was suspended for 24 months
to allow Parliament to remedy the defect. Until it does so section 7(3)(a) is to be read
without the words “ before the commencement of the Matrimonial Property Act, 1984 ”.
Thus, parties to a divorce may always seek a redistribution of assets under section
7(3) as long as they were married out of community of property, with the exclusion of
the accrual system.

[29] The impugned section, however, did not enjoy the attention of the Constitutional Court
and therefore contains a remnant of the old section 7(3) which remains unaffected by
the order in KG .

[30] Section 7(7 ) reads as follows:

(7)

(a) In the determination of the matrimonial benefits to which the parties to any
divorce action may be entitled, the pension interest of a party shall, subject
to paragraphs (b) and (c), be deemed to be part of his assets.

(b) The amount so deemed t o be part of a party’s assets, shall be reduced by
any amount of his pension interest which, by virtue of paragraph (a), in a
previous divorce —

(i) was paid over or awarded to another party; or

(ii) for the purposes of an agreement contemplated in subsection (1), was
accounted in favour of another party.

(c) Paragraph (a) shall not apply to a divorce action in respect of a marriage
out of community of property entered into on or after 1 November 19 84 in
terms of an antenuptial contract by which community of property,
community of profit and loss and the accrual system are excluded . (My
emphasis).

[31] The intention of the legislature by including section 7(7) in the Divorce Ac t was to
allow for the distribution of pension interests on the dissolution of marriages in
community of property and marriages out of community of property, subject to the
accrual system , but to prevent distribution in the case of marriages out of communit y
of property, with the exclusion of the accrual system, unless the l atter marriages were
concluded prior to 1 November 1984.

[32] While section 7(7) provides that pension interests form part of the assets of the parties
in a divorce action the impugned s ection contains a limitation by making it applicable
only to marriages out of community of property , without accrual , concluded before 1
November 1984.

[33] Therefore, all assets, except pension interests, can be redistributed in terms of section
7(3). Thus, for as long as the impugned section remains, the purpose which the order
in KG sought to achieve will not be fully realised.

Whether the impugned section amounts to arbitrary differentiation

[34] Section 9(1) of the Constitution provides that, “ Everyone is equal before the law and
has the right to equal protection and benefit of the law ”. The provision requires that
whenever the State differentiate s between categories of people the differentiation
must be rationally connected to a legitimate government purpose. In this regard the
Constitutional Court expressed itself as follows in KG, at [47] , in applying its judgment
in Prinsloo v Van der Linde 1997 (3) SA (CC) at [25] :

[47] Does this differentiation bear a potential connection to a legitimate government
purpose? If it does, it is ‘mere differentiation’ as opposed to a ‘naked preference’ . A
naked preference is one where the state regulates in an arbitrary way. In Prinsloo
this court said the following in that regard:

‘The purpose of this aspect of equality is, therefore, to ensure that the State
is bound to function in a rational manne r. This has been said to promote the
need for governmental action to relate to a defensible vision of the public
good, as well as to enhance the coherence and integrity of legislation. In
Mureinik’s celebrated formulation, the new constitutional order co nstitutes a
bridge away from a culture of authority … to a culture of justification.’

[35] In my view the impugned section results i n two forms of differentiation :

35.1. post-1984 marriages out of community of property without accrual on the one
hand, and all other marriages on the other. Spouses in the latter category can
claim against their spouse’s pension interest (whether because they are
married in community of property, or they are married out of community of
property with an accrual claim , or they have a section 7(3) redistribution
claim ). Those in the former category cannot so claim ; and

35.2. there is also a differe ntiation between spouses in post -1984 marriages out of
community of property without accrual w here neither s pouse has a pension
interest, and those w here one or both has a pension interest. In the former
case section 7(3) allows a for a redistribution of asset s, but in the latter the
impugned section precludes a full redistribution claim.

[36] In KG the Constitutional Court found that the exclusion in respect of pre -1984
marriages did serve a legitimate government purpose. Prior to 1984, accrual was not
the default result of a marriage out of community of property but post -1984 it was. By
distinguishing between the two, “ the legislative philosophy was that part ies should be
bound by the ir choices ” - KG at [104].

[37] Prior to KG the impugned section served the same purpose. It merely made it clear
that th ere could only be a redistribution of pension interests in p re-1984 marriages.
Given that it dealt with just another class of assets and given section 7(3) , the
provision was a rguably superfluous. It would have been rational for the same reason
that section 7(3) was rational . Post -KG, however, the impugned section is the only
provision which retains the distinction while the underlying basis for its existence has
disappeared, in the light of the judgment in KG.

[38] This is best explained if regard is had to the judgment of the Constitutional Court in EB
v ER N.O. (a judgment handed do wn contemporaneously with the judgment in KG and
reported under the same reference ). In that case there was a challenge to the
constitutionality of section 7(3) because it permitted redistribution only on divorce and
not on death. The Constitutional Court found that the differentiation was not rationally
connected to a legitimate government purpose and was therefore contrary to section
9(1) of the Constitution . As explained by the Court at [48] the redistribution remedy
was introduced to ameliorate the hardship which might be suffered by spouses in
marriages out of community of property. That hardship would arise without regard to
the way in which the marriage w as dissolved .

[39] In the post -KG scenario, there is no longer a distinction in section 7(3) of the Divorce
Act between pre - and post-1984 marriages. The purpose of section 7(3) now is to
provide a redistribution remedy to avoid hardship to all spouses in marriages out of
community of property, without accrual, no matter when they were concluded .

[40] In that scenario no legitimate purpose is served by including pension interests for pre -
1984 marriage s but excluding them for post -1984 marriages . If there was such a
legitimate purpose one would have expected the Minister to have made contentions in
this regard, by way of affidavit or argument, but this has not occurred . No such
legitimate purpose comes to mind.

[41] I conclude that the impugned section is irrational and contrary to section 9(1) of the
Constitution and is therefore unconstitutional and invalid .

[42] Ordinarily, in proceedings which do not raise a constitutional question, my conclusion
would be dispositive of this application. The position is different in respect of
constitutional challenges to legislation , where the Constitutional Court has held that
High Courts should opine on all the constitutional challenges raised. S v Jordan and
Others (Sex Workers Education and Advocacy Task Force and Others as Amici
Curiae) 2002 (6) SA 642 (CC) at [21]. As any declaration of invalidity must be
confirmed by the Constitutional Court it assists that Court to have the view of the High
Court on all the constitutional challenges. I will therefore now proceed to decide also
whether the impugned section constitutes unfair discrimination .

Unfair discrimination

[43] Section 9(3) of the Constitution prohibits indirect unfair discrimination on the basis of
sex or gender. The section reads in full, as follows:

The state may not unfairly discriminate directly and indirectly against anyone on one
or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.

[44] Section 9(5), in turn, provides that, “Discr imination on one or more of the grounds
listed in subsection (3) is unfair unless it is established that the discrimination is fair ”.

[45] Thus, to determine whether there is unfair discrimination I must follow a two -step
process , which entails that :

45.1. the onus is on Mrs D[...] to establish that discrimination has occurred or will
occur. She alleges indirect discrimination on the basis of sex and gender.
She must demonstrate that despite being facially neutral on sex and gender
the impugned section has a disparate impact on women compared to men;
and

45.2. once Mrs D[...] demonstrates that there is discrimination, in terms of section
9(5) of the Constitution, the o nus shifts to the respondents to show that the
discrimination is fair . None of the respondents has sought to do so.

[46] I consider that the impugned section u nfairly discriminates for reasons that are almost
identical to the reasons for which the Constitutional Court in KG concluded that
section 7(3) unfairly discriminated. My conclusion follows the reasoning in KG which I
apply to the facts in this case.

[47] In KG, the Constitutional Court concluded that section 7(3) indirectly discriminated
against women on the basis of gender. Its reasoning is set out in the following
paragraphs of the judgment:

[115] The applicant argues that the basis of differentiation is indeed on listed
grounds: gender and sex. This is on the strength of expert evidence that, when
marriages fail, it is more often women than men who are prejudiced by the absence of
a redistribu tion remedy. This disparity exists only in heterosexual marriages, and its
precise extent is difficult to know. Nowadays it is not unusual for both spouses to
work, leaving children in the daycare of extended families or employees. And, as the
High Cour t pointed out, stereotypical roles are sometimes reversed.

[116] I nevertheless accept that this disparate effect is a present -day reality. It is
borne out by the expert evidence put up by the applicant and accords anecdotally with
what we all observe in society and, in the case of judges, with the matrimonial cases
that serve before them.

[120] To return to the present case, the direct differentiation is based on date of
marriage, which is in turn based on the absence or availability of the accrual regime as
a default regime for marriages out of community of property. There are not listed
grounds, nor are they grounds based on the characteristics and attributes of the
spouses in question. Indirectly, though the burden of the exclusion of new ANC
marriages in s 7(3) falls more heavily on women than men.

[127] In the present case women in old ANC marriages are treated differently from
women in new ANC marriages. While this differentiation is not directly a differentiation
based on gender, its prac tical effect in the case of new ANC marriages is to prejudice
women and benefit men disproportionately. Unlike Gumede , where this impact was
brought about by a second piece of legislation (the Natal Code), here the impact is
brought about, as it was in Mahlangu , by social realities.

[48] The presumption of unfairness was not rebutted. The factors relied on by the
Constitutional Court in this regard are best illustrated by the following passages from
its judgment:

[130] The primary focus, in assessing whether discrimination is unfair, is its impact
on those discriminated against. The hardship for women in new ANC marriages on
divorce can be very grea t. Women have in the past suffered from patterns of
disadvantage. A woman’s fundamental human dignity is impaired when no
recognition is given to the contribution she has made to the increase of her husband’s
estate. In its 1982 report the SALC said tha t the objection to a system of complete
economic separation was not the risk of a wife being left destitute (maintenance might
be sufficient to avoid that risk); it was that she could not claim, as of right, a share of
that which was achieved with her ass istance. I was mainly for this reason that the
majority report of the SALC recommended that the redistribution remedy be made
available for both old and new ANC marriages.

[132] First, there are degrees of voluntariness when it comes to contractual ch oice.
For this reason, Parliament has intervened in other spheres of relations, such as
employment, consumer law and the granting of credit. Some prospective spouses
may be commercially savvy or have the benefit of independent advice, but for many
others this is not the case. Prospective spouses are often young, in love and looking
forward to a long relationship. A prospective spouse may readily succumb to pressure
to sign a standard antenuptial contract excluding the accrual regime. The pending
marria ge may have been announced and organised by the time the prospective
spouses come to consider an antenuptial contract. The danger of imprudent
decision making is ever present in this setting.

[133] Second, valuing spousal choice and allowing a redistribution remedy does not
have to be a binary choice. In terms of section 7(5)(d) of the Divorce Act, a court
considering a redistribution claim can take into account “any other factor which should
in the opinion of the court be taken into account”. This is as wide as can be. The fact
that the parties c oncluded an antenuptial contract excluding the accrual regime could
be taken into account. The weight this factor should receive would depend on the
circumstances.

[136] Another relevant factor, in assessing the constitutional standard of fairness in
section 9, are this country’s international law obligations, to which I made reference in
summarising the CGE’s submissions. The international instruments by which South
Africa is bound on the international plane militate against accepting, as fair, a for m of
discrimination which continues in the main to prejudice women.

[137] The remedy accorded by section 7(3) can only be granted if the court deems it
“equitable and just”, having regard to the claimant’s contribution and other relevant
factors, factor s which would include – if the remedy were available to new ANC
marriages – the choice made by the spouses to exclude the accrual system. So one
may ask rhetorically: How can it be a fair form of discrimination to withhold, from one
class of spouses and i n particular women in that class, a fair judicial remedy of which
they may have as much need as other spouses and the fairness of which will take into
account the choice the spouses made when concluding their antenuptial contract? In
my view, this questio n cannot be plausibly answered. The discrimination is unfair.

[49] The same reasoning, almost identically, applies to Mrs D[...] ’s attack on the impugned
section, as:

49.1. the expert evidence shows not only the general fact ors relied on by the court
in KG to the effect that women are economically disadvantaged compared to
men, perform unremunerated labour, and work to enable men to earn more
wealth but also shows that the same patterns of economic and social
discrimination mea n that men are more likely to have pension s then women
and have larger pensions than women;

49.2. although the impugned section, like section 7(3) , directly distinguishes on the
basis of the date of the marriage , its effect is gendered . Women are more
likely to be affected by the continued exclusion of pension interests from
redistribution than men. That amounts to indirect discrimination on the basis
of sex and gende r; and

49.3. there is no possible basis to conclude that the discrimination is fair, as:

49.3.1. no respondent has entered the fray and sought to rebut the onus
created by section 9(5);

49.3.2. the discrimination is irrational for the reasons I have given above and
thus could never be fair ;

49.3.3. it does not serve to protect the illusory freedom of choice that was
considered in KG. Section 7(3 ) now applies to all marriages, with the
only exclusion being pension interests. No person would have chosen
a particular marital regime on the basis of the impugned section. If
they did, the reasons advanced in KG why that does not render the
discrimina tion fair are even more persuasive in this case; and

49.3.4. the international law considered in KG does not make any exception
for pension interests. It requires redistribution in all marriages, without
the exclusion of any asset type.

[50] In line with KG, it cannot be a fair form of discrimination to withhold from one class of
spouses and in particular women in that class, a fair judicial remedy of which they may
have as much need as other spouses . It cannot be fair . For these reasons too the
impugned section is unconstitutional.

Whether the limitation imposed by the impugned section can be justified

[51] In principle it is possible for a statute that violates sections 9 (1) and (3) to be justified
in terms of section 36(1) of the Constitution . In this matter there is no basis for
justification, as:

51.1. the onus would be on the responde nts to provide the justification. Mlungwana
and Others v S and Anothe r [2018] ZACC 45 at [57]. None of them have done
so;

51.2. if the impugned section amounts to an arbitrary differentiation under section
9(1) it could never be reasonable and proportion al under section 36(1);

51.3. by parity of reasoning, if the discrimination is unfair, it cannot be justified for
the same reasons .

Conclusion and order

[52] in terms of section 172 (1)(a) , once I conclude that a law is inconsistent with the
Constitution I must declare it invalid to the extent of its inconsistency. In this case the
whole of the impugned section is invalid . It does not do anything other than what is
unconstitutional by exc luding a spouse in a post-1984 marriage from claiming a
redistribution in respect of the pension interests of the other spouse. It is thus invalid
in its entirety.

[53] Section 172(1)(b) of the Constitution allows me to grant further relief that is just and
equitable. In KG the Constitutional Court suspended its order of invalidity for 24
months and granted an order severing the unconstitutional parts of section 7(3) until
Parliament passed remedial legislation . That would not be necessary here. The
impugned section ’s existence was justified in the light of the pre -KG wording of section
7(3), which has been declared to be invalid. Thus, in this case a simple declaration of
invalidity is sufficient.

[54] It is important to ensure that the order I intend to make does not have the effect of
undoing any divorces that have already been completed , or any estates that have
already been wound up and distributed. Such an order was granted in KG and I am
bound to follow suit.

[55] Any order declaring legislation to be constitutionally invalid must be confirmed by the
Constitutional Court. Accordingly, I shall direct the Registrar of this Court to refer my
order to the Registrar of the Constitutional Court.

[56] In my view Mrs D[...] is entitled to costs. Although the Minister has not opposed h er
application, the Minister remains liable for the costs , as was held to be the case in KG.
While the matter proceeded unopposed it nevertheless was a challenge to the
constitutionality of legislation of some complexity. Accordingly, Mrs D[...] is entitled to
have her counsel’s costs paid on scale C.

[57] Thus, I make the following order:

1. Section 7(7)(c) of the Divorce Act, 70 of 1979 , is declared to be inconsistent with
the Constitution of the Republic of South Africa and accordingly invalid.

2. The order in paragraph 1, above shall not affect the legal consequences of any act
done or omission or fact existing before this order was made in relation to a
marriage concluded on or after 1 November 1984 .

3. The Registrar of this Court is directed, within 15 days of the date of this order , to
lodge a copy of this order w ith the Registrar of the Constitutional Court.

4. The first respondent is directed to pay the applicant’s costs, and the costs of the
applicant’s counsel are to be taxed on scale C.


_____________________
O H RONAASEN
ACTING JUDGE OF THE HIGH COURT


Appearances: M Bishop for the applicant,
Instructed by Catto Neethling Wild Inc.
c/o Heuer and Associates
No appearances for the respondents