EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others (CCT 364/21; CCT 158/22) [2023] ZACC 32 (10 October 2023)

CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 364/21

In the matter between:


EB (BORN S) Applicant

And

ER (BORN B) N.O. First Respondent

MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES Second Respondent

EB (BORN S) N.O. Third Respondent


Case CCT 158/22

And in the matter between:

KG Applicant

And

MINISTER OF HOME AFFAIRS First Respondent

MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Second Respondent

BG Third Respondent

And

COMMISSION FOR GENDER EQUALITY First Amicus Curiae

GAUTENG ATTORNEYS ASSOCIATION Second Amicus Curiae

2


Neutral citation: EB (born S) v ER (born B) and Others ; KG v Minister of Home
Affairs and Others [2023] ZACC 32

Coram: Zondo CJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ,
Potterill AJ, Rogers J, Theron J and Van Zyl AJ


Judgments: Rogers J (unanimous)

Heard on: 10 May 2023

Decided on: 10 October 2023

Summary: Divorce Act 70 of 1979 — redistribution remedy in section 7(3)
— exclusion of remedy where marriage dissolved by death —
exclusion of remedy in case of marriages concluded on or after 1
November 1984 — whether such exclusions limit section 9(1)
and/or section 9(3) of Constitution – whether such limitations
justifiable




ORDER



Application for confirmation of orders of constitutional invalidity of the High Court of
South Africa, Gauteng Division, Pretoria Court:
The following order is made in Case CCT 364/21:
1. The High Court’s order of constitutional invalidity is confirmed.
2. Subsection 7(3) of the Divorce Act 70 of 1979 is declared inconsistent with the
Constitution and invalid to the extent that it fails to include the dissolution of
marriage by death.
3. The declaration of invalidity is suspended for a period of 24 m onths from the
date of this order to enable Parliament to take steps to cure the constitutional
defects identified in this judgment.
3
4. Pending any remedial legislation as contemplated in paragraph 3 above, and
pursuant to this Court’s conclusions in the present case and in Case CCT 158/22
KG v Minister of Home Affairs and Others , which has been decided
simultaneously with the present case, the Matrimonial Property Act 88 of 1984
is to be read as including, as section 36A, the following provision:
“(1) Where a marriage out of community of property as contemplated in
paragraphs (a), (b) or (c) of subsection 7(3) of the Divorce Act, 1979
(Act 70 of 1979) is dissolved by the death of a party to the marriage, a
court may, subject mutatis mutandis to the provisions of subsections
7(4), (5) and (6) of the said Divorce Act, and on application by a
surviving party to the marriage or by the executor of the estate of a
deceased spouse to the marriage as the case may be (hereinafter
referred to as the claimant), and in the absence of agreement between
the claimant and the other spouse or the executor of the deceased estate
of the other spouse (hereinafter referred to as the respondent), order
that such assets, or such part of the assets, of the respondent as the court
may deem just, be transferred to the claimant.
(2) For purposes of subsection (1), paragraph (a) of subsection 7(3) is to
be read as excluding the following words: ‘before the commencement
of the Matrimonial Property Act, 1984’.”
5. The order in paragraph 4 shall have no effect on the validity of any acts
performed in respect of the administration of a deceased estate that has been
finally wound up by the date of this order and no claim as contemplated in
paragraph 4 may be made by or against the executor of a deceased estate that has
been finally wound up by the date of this order.
6. The second respondent must pay the applicant’s costs in this Court, excluding
the costs of the appearance on 11 August 2022, such costs to include the costs of
two counsel.

The following order is made in Case CCT 158/22:
1. The High Court’s order of constitutional invalidity is confirmed.
2. Paragraph (a) of subsection 7(3) of the Divorce Act 70 of 1979 (Divorce Act) is
declared inconsistent with the Constitution and invalid to the extent that it fails
4
to include marriages concluded on or after the commencement of the
Matrimonial Property Act 88 of 1984 (Matrimonial Property Act).
3. The declaration of invalidity is suspended for a period of 24 months from the
date of this order to enable Parliament to take steps to cure the constitutional
defects identified in this judgment.
4. Pending any remedial legislation as contemplated in paragraph 3 above,
paragraph (a) of subsection 7(3) of the Divorce Act is to be read as excluding the
words in strike-out text below:
“(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;”
5. The order in paragraph 4 above shall not affect the legal consequences of any act
done or omission or fact existing befor e this order was made in relation to a
marriage concluded on or after 1 November 1984.
6. Pending any remedial legislation as contemplated in paragraph 3 above, and
pursuant to this Court’s conclusions in the present case and in Case CCT 364/21
EB (Born S) v ER (Born B) N.O. and Others , which has been decided
simultaneously with the present case, the Matrimonial Property Act is to be read
as including, as section 36A, the following provision:
“(1) Where a marriage out of community of property as contemplated i n
paragraphs (a), (b) or (c) of subsection 7(3) of the Divorce Act, 1979
(Act 70 of 1979) is dissolved by the death of a party to the marriage, a
court may, subject mutatis mutandis to the provisions of subsections
7(4), (5) and (6) of the said Divorce Act , and on application by a
surviving party to the marriage or by the executor of the estate of a
deceased spouse to the marriage as the case may be (hereinafter
referred to as the claimant), and in the absence of agreement between
the claimant and the other spouse or the executor of the deceased estate
of the other spouse (hereinafter referred to as the respondent), order
that such assets, or such part of the assets, of the respondent as the court
may deem just, be transferred to the claimant.
5
(2) For purposes of subsection (1), paragraph (a) of subsection 7(3) is to
be read as excluding the following words: ‘before the commencement
of the Matrimonial Property Act, 1984’.”
7. The order in paragraph 6 shall have no effect on the validity of any acts
performed in respect of the administration of a deceased estate that has been
finally wound up by the date of this order and no claim as contemplated in
paragraph 6 may be made by or against the executor of a deceased estate that has
been finally wound up by the date of this order.
8. The second respondent must pay the applicant’s costs in this Court, such costs
to include the costs of two counsel.




JUDGMENT




ROGERS J (Zondo CJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Potterill AJ,
Theron J and Van Zyl AJ concurring):


Introduction
[1] These two cases, which were heard together, concern the constitutional validity
of section 7(3) of the Divorce Act.1 I shall quote that section presently. In broad terms,
the section provides that, where spouses married out of community of property get
divorced, the divorce court may make an equitable order that assets of the one spouse
be transferred to the other (redistribution order). For ordinary civil marriages, this
remedy is only available where the marriage was entered into before 1 November 1984.
Case CCT 364/21, EB (Born S) v ER (Born B) N.O. and Others, concerns the absence
of a redistribution remedy where the marriage is terminated by death rather than
divorce. Case CCT 158/22 , KG v Minister of Home Affairs and Others , concerns the
absence of a redistribution remedy where the marriage is entered into on or after
1 November 1984. For the sake of brevity, I shall refer to these two issues as the
“divorce/death issue” and the “before/after issue” respectively.

[2] In each case, the wife who brought the constitutional challenge was the plaintiff
in divorce proceedings in the High Court of South Africa, Gauteng Division, Pretoria
(High Court). In each case, the High Court made a declaration of constitutional
invalidity. Those declarations are now before us for confirmation in terms of
section 172(2)(a) of the Constitution.


1 70 of 1979.
ROGERS J
7
The legislative provisions
[3] The Matrimonial Property Act 2 (MPA) came into force on 1 November 1984.
Chapter I established the accrual system. In terms of section 2, every marriage entered
into after the MPA’s commencement date in terms of an antenuptial contract by which
community of property and community of profit and loss are excluded is subject to the
accrual system unless it is expressly excluded by the antenuptial contract. Section 3(1)
provides that, upon the dissolution of such a marriage by divorce or death, the spouse
whose estate shows no accrual or a smaller accrual than the estate of the other spouse
or of the estate of a deceased spouse, acquires a claim against the other spouse or
deceased estate for an amount equal to half of the difference between the accrual of the
respective estates of the spouses. In terms of section 4(1)(a), the accrual of the estate
of the spouse is the amount by which the net value of his or her estate at the dissolution
of the marriage exceeds the net value of his or her estate at the commencement of that
marriage. The Chapter contains further provisions regulating calculation and
enforcement of accrual claims.

[4] Among the general provisions in Chapter IV, section 21(1) provides that spouses,
whether married before or after the commencement date, may jointly apply to a court
for leave to change the matrimonial property system applicable to their marriage.
Section 21(2) made provision for spouses, who were married before the commencement
date in term s of an antenuptial contract by which community of property and
community of profit and loss were excluded, to make the accrual system applicable to
their marriage by the execution and registration of a notarial contract. This had to be
done within two years, that is, by 1 November 1986 (window-period).3


2 88 of 1984.
3 In terms of the power conferred by section 21(2)(a), the Minister extended the window-period which eventually
expired on 31 October 1988.
ROGERS J
8
[5] Section 36 of the MPA added subsections 7(3) to (6) into the Divorce Act. The
new subsection 7(3) read:

“A court granting a decree of divorce in respect of a marriage out of community of
property entered into before the commencement of the [MPA] in terms of an
antenuptial contract by which community of property, community of profit and loss
and accrual sharin g in any form are excluded, may, subject to the provisions of
subsection (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.”

[6] In terms of section 22(6) of the Black Administration Act 4 (BAA), a civil
marriage between black persons did not by default give rise to community of property.
Such a marriage was by default out of community of property. This provision was
repealed with effect from 2 December 1988 by the Marriage and Matrimonial Property
Law Amendment Act5 (Amendment Act). At the same time, section 7(3) was amended
by adding a further category of marriages in respect of which a divorce court could
make a redistribution order, namely marriages concluded out of community of property
in terms of the BAA before the commencement of the Amendment Act. Section 21(2)
of the MPA was also amended so as to allow persons so married to make the accrual
system applicable to their marriage by a notarial contract executed and registered within
two years from 2 December 1988.

[7] The most recent amendment of section 7(3) was made in the wake of this Court’s
judgment in Holomisa.6 The legislative background to Holomisa was that, until its
repeal with effect from 15 December 2000 by the Recognition of Customary Marriages

4 38 of 1927.
5 3 of 1988.
6 Holomisa v Holomisa [2018] ZACC 40; 2019 (2) BCLR 247 (CC).
ROGERS J
9
Act7 (Recognition Act), section 39 of the Transkei Marriage Act8 had a similar effect to
section 22(6) of the BA A, namely that marriages entered into under the Transkei
Marriage Act were by default out of community of property. The parties so married did
not have the benefit of the accrual system by default and also had no remedy in terms
of section 7(3) of the Divorce Act as it then read. This Court in Holomisa declared
section 7(3) constitutionally invalid for failing to provide such a remedy. The
declaration was suspended for 24 months with an interim reading -in which made
section 7(3) applicable to such marriages.

[8] Parliament addressed the constitutional defect with effect from 22 October 2020
by way of section 1 of the Judicial Matters Amendment Act.9 In terms of this provision,
section 7(3) was brought into its current form by including, as an additional category of
marriages where a redistribution remedy was available, marriages entered into in terms
of any law applicable in a former homeland without t he conclusion of an antenuptial
contract or agreement in terms of such law. Subsections 7(3) to (6) now read:

“(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 [MPA] in terms of an
antenuptial contract by which community of property, community of
profit and loss and accrual sharing in any form are excluded;
(b) entered into before the commencement of the [ Amendment Act] in
terms of section 22(6) of the [BAA] as it existed immediately prior to
its repeal by the [Amendment Act]; or
(c) entered into in terms of any law applicable in a former homeland,
without entering into an antenuptial contract or agreement in terms of
such law,
may, subject to the provisions 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

7 120 of 1998.
8 21 of 1978.
9 12 of 2020.
ROGERS J
10
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.
(4) An order under subsection (3) shall not be granted unless the court is satisfied that
it is equitable and just by reason of the fact that the party in whose favour the order
is granted, contributed directly or indirectly to the maintenance or increase of the
estate of the other party during the subsistence of the marriage, either by the
rendering of services, or the saving of expenses which would otherwise have been
incurred, or in any other manner.
(5) In the determination of the assets or part of the assets to be transferred as
contemplated in subsection (3), the court shall, apart from any direct or indirect
contribution made by the party concerned to the maintenance or increase of the
estate of the other party as contemplated in subsection (4), also take into account—
(a) the existing means and obligations of the parties, including any
obligation that a husband to a marriage as contemplated in subsection
(3)(b) of this section may have in terms of section 22(7) of the [BAA];
(b) any donation made by one party to the other during the subsistence of
the marriage, or which is owing and enforceable in terms of the
antenuptial contract concerned;
(c) any order which the court grants under section 9 o f this Act or under
any other law which affects the patrimonial position of the parties; and
(d) any other factor which should in the opinion of the court be taken into
account.
(6) A court granting an order under subsection (3) may, on application by the party
against whom the order is granted, order that satisfaction of the order be deferred
on such conditions, including conditions relating to the furnishing of security, the
payment of interest, the payment of instalments, and the delivery or transfer of
specified assets, as the court may deem just.”

[9] In what follows, I use the following abbreviated expressions:
(a) ANC – an antenuptial contract by which community of property ,
community of profit and loss and accrual sharing in any form are
excluded;
ROGERS J
11
(b) old marriage – a marriage entered into before the MPA’s commencement
date, 1 November 1984;
(c) new marriage – a marriage entered into on or after the MPA’s
commencement date;
(d) old ANC marriage – a marriage as contemplated in section 7(3)(a) of the
Divorce Act, that is, an old marriage in terms of an ANC as defined above;
(e) new ANC marriage – a new marriage in terms of an ANC as defined
above;
(f) accrual marriage – a new marriage in terms of an antenuptial contract in
terms of which the accrual system is not excluded;
(g) BAA marriage – a marriage as contemplated in section 7(3)(b) of the
Divorce Act, that is, a marriage out of community of property entered into
in terms of the BA A before the Amendment Act’s commencement date,
2 December 1988; and
(h) homeland marriage – a marriage as contemplated in section 7(3)(c) of the
Divorce Act.10

The facts and High Court orders
[10] The facts of the two cases are not relevant to the constitutionality of section 7(3)
and may be briefly stated.

Case CCT 364/21: EB (Born S) v ER (Born B) N.O. and Others
[11] In Case CCT 364/21, the applicant in this Court, Mrs B, married her husband,
Mr B, in April 1983 in terms of an ANC. This was thus an old ANC marriage. In
March 2015 , she instituted divorce proceedings against him. She claimed a
redistribution order in terms of section 7(3) of the Divorce Act. Mr B died in
April 2016, by which date pleadings in the divorce action had closed. Their daughter,

10 In the case of the Transkei, this would apply to marriages in terms of the Transkei Marriage Act concluded
before 15 December 2000. In the case of other homelands, the application of this provision depends on when the
relevant homeland legislation was repealed.
ROGERS J
12
Mrs R, was the sole beneficiary in his estate. Mr J C van Eden was appointed as the
executor of Mr B’s estate.

[12] Mrs B wished to carry on with her claim for a redistribution order. Mr van Eden
contended that a redistribution order was no longer possible, because the marriage had
been dissolved by death and only a court granting a decree of divorce can make a
redistribution order . This raised what I have identified as the divorce/death issue.
Mrs B put up two answers to this objection: (a) that because litis contestatio (close of
pleadings) had been reached before Mr B died, her claim for a redistribution order could
be pursued to finality, even if ordinarily section 7(3) does not apply to marital
dissolution by death ; and (b) that , in any event , section 7(3) was unconstitutional for
failing to provide for a redistribution remedy where an old ANC marriage is dissolved
by death.

[13] These matters were dealt with as preliminary issues. On 21 June 2019 the
High Court (Prinsloo J) deliver ed judgment.11 The Court upheld both of Mrs B’s
responses to the executor’s defence. The order, in respect of the unconstitutionality of
section 7(3), was as follows:

“2. It is declared that the absence of a provision in section 7(3) of the Divorce Act,
No. 70 of 1979, to the effect that a claim for redistribution of assets in terms of section
7(3) of that Act, in the case of the dissolution of the marriage by the death of one or
both of the spouses, is not extinguished by such death, constitutes a lacuna which is
inconsistent with the Constitution, Act 108 of 1996, which inconsistency is removed
by reading -in the following passage after the words ‘ A court granting a decree of
divorce . . .’ ‘ or a court considering an asset redistribution claim based on the
provisions of this subsection following the dissolution of the marriage by the death of
one or both of the spouses . . .’
2.1. It is consequently declared that henceforth the first portion of section
7(3) of the [Divorce Act] should be read as follows:

11 EB (born S) v Van Eden N.O. and Others , unreported judgment of the High Court of South Africa, Gauteng
Division, Pretoria, Case No 20758/2015 (21 June 2019).
ROGERS J
13
‘A court granting a decree of divorce or a court considering an asset
redistribution claim based on the provisions of this subsection
following the dissolution of the marriage by the death of one or both of
the spouses in respect of a marriage out of community of property—
. . .’
. . .
5. This order shall be referred to the Constitutional Court for confirmation
in terms of section 15 of the Superior Courts Act 10 of 2013 and in
accordance with rule 16 of the Rules of the Constitutional Court.”
(Underlining in the original.)

[14] The adjudication of Mrs B’s redistribution claim on its merits stood over for later
determination. In August 2020, Mrs B, Mr van Eden and Mrs R concluded a settlement
agreement in terms of which the estate of Mrs B’s late husband was to be divided
equally between Mrs B and her daughter. Disputes later arose between Mrs B and her
daughter on the one hand and Mr van Eden on the other. Among other things,
Mr van Eden took the view that he could not give effect to the settlement agreement
unless the High Court’s declaration of invalidity was confirmed by th is Court. In
November 2021, Mrs B thus brought an application in this Court for confirmation. In
February 2022, Mr Van Eden was removed as the executor and, in March 2022, Mrs B
and her daughter were appointed as the executors. In that capacity, Mrs R and Mrs B
feature as the first and third respondents respectively in this Court. The second
respondent is the Minister of Justice and Correctional Services (Minister).

Case CCT 158/22: KG v Minister of Home Affairs and Others
[15] The applicant in this Court, Mrs G, married her husband, the third respondent,
Mr G, in March 1988. The marriage being in terms of an ANC, this is a new ANC
marriage. Mrs G began divorce proceedings against her husband in 2017. Those
proceedings are still pending. She wishes to p ursue a claim in terms of section 7(3).
She alleges that in many, mainly non-financial, ways, she has contributed to the increase
in her husband’s estate and that he is now very wealthy. To clear the way for such a
ROGERS J
14
claim, in August 2021 she launched an a pplication in the High Court for an order
declaring section 7(3)(a) of the Divorce Act unconstitutional for limiting the
redistribution remedy to old ANC marriages. Her application raised what I have
referred to as the before/after issue.

[16] In the High Cou rt, Mrs G cited the Minister of Home Affairs as the first
respondent, the Minister of Justice and Constitutional Development as the second
respondent and her husband as the third respondent. Mr G and the Minister initially
opposed, but both withdrew their opposition. The Minister filed an explanatory
affidavit which was broadly neutral . The Pretoria Attorneys Association (PAA) was
granted leave to intervene as an amicus curiae (friend of the court) , and it made
submissions in support of the validity of section 7(3)(a).

[17] The High Court (Van der Schyff J) delivered judgment on 11 May 2022. 12 The
Court upheld Mrs KG’s application and made the following order:

“(1) Section 7(3)(a) of the [Divorce Act] is declared inconsistent with
the Constitution and inva lid to the extent that the provision limits the
operation of section 7(3) . . . to marriages out of community of property
entered into before the commencement of the [MPA].
(2) The inclusion of the words ‘ entered into before the commencement of the
[MPA]’ in section 7(3)(a) of the [Divorce Act] is declared inconsistent with
the Constitution and invalid. These words are notionally severed from section
7(3)(a) . . . and section 7(3)(a) . . . is to be read as though the words ‘ entered
into before the commencement of the [MPA]’ do not appear in the section.
(3) In terms of section 172(1)(b) of the Constitution, the orders in
paragraphs (1) and (2) of this order shall not affect the legal consequences of
any act done or omission or fact existing in relation to a marriage out of
community of property with the exclusion of the accrual system concluded
after 1 November 1984, before this order was made.

12 G v Minister of Home Affairs [2022] ZAGPPHC 311; 2022 (5) SA 478 (GP); [2022] 3 All SA 58 (GP).
ROGERS J
15
(4) The aforementioned orders, in so far as they declare provisions of an Act of
Parliament invalid, are referred to the Constitutional Court for confirmation in
terms of section 172(2)(a) of the Constitution . . . and the Registrar of this
Court is directed to comply with rule 16(1)) of the Rules of the Constitutional
Court in this regard.”

[18] Mrs G has applied to this Court for confirmation, citing the same three parties as
respondents. This Court admitted t wo parties as amici curiae : the Commission for
Gender Equality (CGE) and the Gauteng Attorneys Association (GAA).

Case CCT 364/21 – the divorce/death issue
High Court judgment
[19] The High Court’s decision on the litis contestatio issue is not before us. There
has been no appeal against the High Court’s judgment. I thus deal only with the
High Court’s judgment on the constitutional issue, that is the divorce/death issue.

[20] The High Court inferred that subsections 7(3) to (6) were added to the
Divorce Act in an attempt to compensate for the fact that old ANC marriages were
concluded before the introduction of the accrual system which has become the default
regime in marriages out of community of property. This accorded with the explanatory
affidavit filed on behalf of the Minister. The High Court considered, however, that
when introducing this compensatory remedy, the legislature overlo oked the fact that,
whereas an accrual claim in a new marriage is conferred when a marriage is dissolved
by divorce or death, the redistribution remedy for old ANC marriages was conferred
only when a marriage is dissolved by divorce. For the High Court, t he question was
whether this discrepancy amounted to discrimination in terms of section 9 of the
Constitution.

[21] The High Court considered the following considerations to bear indirectly on the
enquiry. First, where spouses are married in community of property, a spouse’s claim
to a half share of the joint estate survives the death of the other spouse. Second, the
ROGERS J
16
Maintenance of Surviving Spouses Act 13 ensures that a spouse’s right to claim
maintenance survives the death of the other spouse.

[22] In assessing whether section 7(3) limited section 9 of the Constitution, the High
Court referred to the analytical framework laid down in Harksen.14 Although Harksen
dealt with section 8 of the interim Constitution, subst antially the same provisions are
now to be found in section 9 of the Constitution. Section 9 in relevant part provides:

“(1) Everyone is equal before the law and has the right to equal protection and
benefit of the law.
. . .
(3) The state may not unfair ly discriminate directly or 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.
. . .
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination is fair.”

[23] Transposed to section 9 of the Constitution, the framework laid down in Harksen
reads thus:

“(a) Does the provision differentiate between people or categories of people? If so,
does the differentiation bear a rational connection to a legitimate government
purpose? If it does not then there is a violation of [section 9(1)]. Even if it
does bear a rational connection, it might nevertheless amount to discrimination.
(b) Does the differentiation amount to unfair discrimination? This requires a
two stage analysis:
(i) Firstly, does the differentiation amount to ‘discrimination’? If it is on
a specified ground, then discrimination will have been established. If
it is not on a specified ground, then whether or not there is

13 27 of 1990.
14 Harksen v Lane N.O. [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC).
ROGERS J
17
discrimination will depend upon whether, objectively, the ground is
based on attributes and characteristics which have the potential t o
impair the fundamental human dignity of persons as human beings or
to affect them adversely in a comparably serious manner.
(ii) If the differentiation amounts to ‘discrimination’, does it amount to
‘unfair discrimination’? If it has been found to have been on a
specified ground, then unfairness will be presumed. If on an
unspecified ground, unfairness will have to be established by the
complainant. The test of unfairness focuses primarily on the impact of
the discrimination on the complainant and others in his or her situation.
If, at the end of this stage of the enquiry, the differentiation is found not to be
unfair, then there will be no violation of [section 9(3)].
(c) If the discrimination is found to be unfair than a determination will have to be
made as to whether the provision can be justified under the limitations clause
([section 36] of the [Constitution]).”15

[24] The High Court held that, by excluding a redistribution remedy where a marriage
is terminated by death, section 7(3) differentiated between categories of people and that
such differentiation did not bear a rational connection to a legitimate government
purpose. Section 9(1) of the Constitution was thus violated.

[25] Section 9(3) was also violated, in the High Court’s view, because the
differentiation was on the basis of marital status, thus amounting to discrimination; and
that such discrimination was presumptively unfair. The Minister had not discharged
the onus of showing the discrimination to be fair. The limitation was not justifiable in
terms of section 36. The High Court rejected an argument that the differentiation was
not on the basis of marital status but merely on the basis of differing marital benefits
depending on whether the marriage was dissolved by divorce or death. The High Court
seems to have thought that the relevant differentiation was between spouses in old ANC
marriages (where the redistribution remedy was not available in the case of marital

15 Id at para 54.
ROGERS J
18
dissolution by death ) and spouses in accrual marriages (where an accrual clai m was
available in the case of marital dissolution by death).

[26] The High Court quoted extensively from Professor June Sinclair’s The Law of
Marriage.16 Although the author focused on the before/after issue, the High Court
considered that the author’s justification for interfering with contractual choice applied
as much to the divorce/death issue as the before/after issue. Perhaps through oversight,
the legislature had , in the High Court’s view, “failed to ‘interfere’ far enough” when
introducing the redistribution remedy.

[27] The High Court considered a submission by Mr van Eden that spouses in old
ANC marriages which were terminated by death after 1 November 1984 had no reason
to complain because they could have taken advantage of section 21(2) of the MPA by
adopting the accrual system during the window-period. The High Court described this
contention as unrealistic and unduly harsh. Lay people often did not have access to
legal advice and might not anticipate future difficulties in the marriage.

[28] Another of Mr van Eden’s submissions which the High Court rejected was the
argument that the ostensibly harsh consequences of limiting the redistribution remedy
to dissolution by divorce were ameliorated by the spouse’s right to maintenance, which
in the absence of agreement is regulated by section 7(2) of the Divorce Act17 and which
survives the death of the other spouse. In the High Court’s view, this begged the
question why the legislature allowed an accrual claim to survive marital dissolution by

16 Sinclair The Law of Marriage (Juta & Co Ltd, Cape Town 1996) vol 1 at 141-6.
17 Section 7(2) provides as follows:
“In the absence of an order made in terms of subsection (1) with regard to the payment of
maintenance by the one party to the other, the court may, having regard to the existing or
prospective means of each of the parties, their respective earning capacities, financial needs and
obligations, the age of each of the parties, the duration of the marriage, the standard of living of
the parties prior to the divorce, their conduct in so far as it may be relevant to the break -down
of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of
the court should be taken into account, make an order which the court finds just in respect of
the payment of maintena nce by the one party to the other for any period until the death or
remarriage of the party in whose favour the order is given, whichever event may first occur.”
ROGERS J
19
death. Pointing to other remedies, which were available to both classes of spouses, did
not answer this crucial question.

[29] The High Court also addressed the submission advanced both by Mr van Eden
and the Minister that, where a marriage is dissolved by death, the executor of the
deceased spouse’s estate would find it almost impossible to gainsay evidence put up by
the surviving spouse in support of a redistribution claim. This could prejudice creditors
and beneficiaries. The High Court regarded the argument as artificial and speculative.
One could not assume that an executor would be unable to contest a redistribution claim.
And again, the legislature allowed an accrual claim to survive marital dissolution by
death, where executors might find themselves in the same disadvantageous position.

[30] After referring to various decisions of this Court, the High Court concluded that
the remedy of reading-in was apposite. I have already quoted the High Court’s order in
that regard.

In this Court
Applicant
[31] Although in her submissions the applicant said that the case was limited to the
situation where a spouse died after litis contestatio , the High Court’s order was not
limited in that way nor does the matter seem to have been argued in that way in the
High Court.18 If the applicant and the High Court were right in their submissions and
conclusions respectively on litis contestatio , marital dissolution by death after
litis contestatio would not present a lacuna calling for a constitutional remedy.

[32] The applicant’s principal s ubmission is that there is an unjustifiable
differentiation, and indeed discrimination, between dissolution by death of old
ANC marriages and dissolution by death of accrual marriages based purely on the date
of marriages . The applicant supports the High Court’s conclusion that the

18 The applicant’s counsel in this Court did not appear for her in the High Court.
ROGERS J
20
differentiation is on the basis of marital status for purposes of section 9(3), that it is
presumptively unfair, that the presumption has not been rebutted, and that the unfair
discrimination has not been justified. The applica nt submits that the discrimination
impairs the fundamental human dignity of spouses married before 1 November 1984.
The impact is serious. The applicant also supports the High Court’s reading-in.

Minister
[33] The Minister d oes not oppose confirmation but has made submissions which,
according to the applicant’s replying argument, amount in substance to opposition.
The Minister says that his submissions have been made in terms of section 15(2) of the
Superior Courts Act 19 and in order to explain the policy position of the state on the
High Court’s declaration of constitutional invalidity.

[34] As historical context, the Minister refers to the South African Law Commission
(SALC) Issue Paper 41 of 1990,20 where it was stated that section 7(3) was only meant
to be an outlet valve to alleviate the unfairness in old ANC marriages. 21 The question
considered in Issue Paper 41 was whether the redistribution remedy should be extended
to new ANC marriages as well. In the Minister’s submi ssion, the exclusion of any
reference to marital dissolution by death was appropriate, because section 7(3) is part
of an enactment dealing only with divorce. If there is any lacuna, it is in the MPA but
the applicants directed no constitutional attack at the MPA.

[35] According to the Minister, an accrual claim applies to the dissolution of
marriages by divorce or death, because it is a claim having its source in the property
regime applicable to the marriage. The redistribution remedy in section 7(3), by
contrast, is specifically a divorce remedy . I t is not a right conferred by the property

19 10 of 2013. Section 15(1) deals with referrals to this Court for confirmation as contemplated in section 172(2)(a)
of the Constitution. Section 15(2) reads:
“If requested by the Chief Justice to do so, the Minister must appoint counsel to present
argument to the Constitutional Court in respect of any matter referred to in subsection (1). ”
20 Report on the Review of the Law of Divorce: Amendment of Section 7(3) of the Divorce Act, 1979 (1990).
21 Id at paras 1.3.4-5.
ROGERS J
21
regime applicable to the marriage and may have consequences which override the
choices the spouses made in their antenuptial contract. For this reason, so the Minister
argues, there is no real differentiation for purposes of section 9(1) of the Constitution.

[36] The Minister repeats the argument, rejected by the High Court, that there would
be difficulties of adjudication i f a redistribution remedy could be raised against t he
estate of a deceased spouse, particularly where the claimant relies on indirect rather than
direct contributions. To allow a redistribution remedy in the case of marital dissolution
by death will affect the rights of deceased spouses, who did not contr actually commit
to such an outcome and who are no longer able to dispute the extent of the claimant’s
contributions. The Minister also repeats the argument that the differentiation is not on
the basis of marital status but on the basis of the way in which the marriage is dissolved.

Mootness
[37] The parties were asked to address mootness for two reasons. First, because there
was no appeal against the High Court’s conclusion in the applicant’s favour on
litis contestatio, she did not need an order of constitutional invalidity to pursue her claim
for a redistribution order. Second, a settlement agreement was later concluded, making
it unnecessary for a court to adjudicate the redistribution claim. Contrary to the former
executor’s contention, the High Court’s judgment on litis contestatio was a sufficient
basis for winding up the estate on the basis of the settlement agreement. It is unclear
whether the applicant in the High Court asserted standing on any other basis than her
own interest as contemplated in section 38(a) of the Constitution.22

[38] Since the applicant had standing in her own interest at the time the constitutional
challenge was adjudicated in the High Court, the question is whether, despite possible

22 Section 38 list the persons who have the right to approach a competent court for relief in respect of an alleged
infringement or threatened infringement of a right in the Bill of Rights. The persons in section 38(a) are “anyone
acting in their own interest”. The applicant could notionally have sought an order of constitutional invalidity by
acting “in the interest of a group or class of persons” (section 38 (c)) or by acting “in the public interest”
(section 38(d)).
ROGERS J
22
mootness, it is in the interests of justice for us to entertain it. 23 I have no doubt that it
is. First, the High Court has made a declaration of constitutional invalidity ; it is
undesirable to leave it in limbo. Second, while the number of old ANC marriages in
which the issue may arise might be dwindling, we cannot say that it is negligible. Third,
in cases where death occurs after litis contestatio, the question whether a redistribution
claim survives the death of the other spouse cannot be regarded as settled, 24 so the
constitutional validity of the divorce/death distinction remains important, even in that
situation. Fourth, the issue affects not only old ANC marriages but BAA marriages and
homeland marriages, where the cut -off dates are later than 1 November 1984. There
are thus many spouses who may be affected by the outcome. And , if we find for the
applicant in CCT 158/22, a declaration of invalidity on the divorce/death issue would
affect all ANC marriages, whenever concluded.

Section 9 analysis
The purpose of section 7(3) and legislative history
[39] I have already quoted the relevant parts of section 9 of the Constitution and the
framework for analysis set out in Harksen. The first step in the analysis is to determine
whether section 7(3) differentiates between people or categories of people and, if so,
whether the differentiation bears a rational connection to a legitimate government
purpose.

[40] The High Court considered that subsections 7(3) to (6) of the Divorce Act were
introduced as a remedy for old ANC marriages to compensate for the fact that spouses
to such marriages did not have access to the accrual regime as a default regime in the
case of antenuptial contracts. This view is justified when one considers that the
redistribution remedy was created simultaneously with the accrual regime; that

23 On the test, see Bwanya v Master of the High Court, Cape Town [2021] ZACC 51; 2022 (3) SA 250 (CC); 2022
(4) BCLR 410 (CC) (Bwanya) at paras 14-6.
24 In reaching its finding on litis contestatio, the High Court in the present case disapproved the contrary decision
in YG v Executor, Estate Late CGM [2012] ZAWCHC 51; 2013 (4) SA 387 (WCC). There is no authority on the
point in the Supreme Court of Appeal or this Court. In his submissions in the present case, the Minister questioned
the High Court’s conclusion.
ROGERS J
23
Chapter I of the MPA would only be of potential application to new ANC marriages;
and that the redistribution remedy was expressly confined to old ANC marriages.

[41] This view is also consistent with the legislative history to the introduction of the
MPA. In 1982 the SALC issued a report on matrimonial property law.25 The majority
report identified the problem with the existing situation as being that most marriages by
antenuptial contract created a complete economic separation. Statistics showed that in
practice most antenuptial contracts were concluded in a standard form which excluded
community of property, community of profit and loss and the husband’s marital
power.26 The majority proposed the introduction of not only the accrual system but also
a discretionary judicial power to order equitable redistribution. The latter remedy would
apply to old and new marriages and upon marital dissolution by divorce and death.27

[42] The inclusion of a general discretionary remedy did not find favour with the
Government, and the Bill as introduced into Parliament limited the redistribution
remedy to old ANC marriages and only upon divorce. The contributions by the Minister
of Justice and other speakers during the parliamenta ry and committee debates28 reveal
the thinking behind this limitation to have been that the solutions to the problem
identified by the SALC should interfere as little as possible with spousal
decision-making. In respect of new marriages, couples marrying by antenuptial contract
would have the choice to exclude the accrual system. To grant an overriding judicial
redistribution remedy for future marriages was decidedly unacceptable in the
development of the country’s matrimonial property law. In respect of old ANC
marriages, where the default accrual regime did not exist, couples would have the choice

25 Report pertaining to the Matrimonial Property Law with Special Reference to the Matrimonial Affairs Act 1953,
the Status of the Married Woman , and the Law of Succession in so far as it Affects the Spouses (Pretoria 1982).
This comprised a majority report and two minority reports.
26 One of the reasons for this was thought to be that notaries were familiar with the standard form and its legal
consequences and were reluctant to introduce special provisions.
27 This was rejected in the first minority report, which was even against the intro duction of the accrual system.
The second minority report supported the majority report and responded to criticisms in the first minority report.
28 Republic of South Africa Debates of the House of Assembly (Hansard) Fourth Session—Seventh Parliament,
27 January to 12 July 1984. The record of the second reading is at 8572 -8624 and 8754-8770; the record of the
committee stage at 8908-9007 and the record of the third reading at 9007-9046.
ROGERS J
24
to adopt the accrual system during the window -period. However, a spouse might be
unable to persuade the other to do so. Given the hardship which such a spous e might
face upon the dissolution of the marriage, it was desirable to amend the Divorce Act to
make provision for a redistribution remedy. Despite the uncertainties inherent in such
a remedy, this should be tolerated in order to address this specific problem.

[43] As to confining the judicial remedy to marital dissolution by divorce, the
considerations which emerge from the Minister’s speech and the debates included that:
the existence of such a remedy upon death would be inconsistent with the basic principle
of our law that courts do not intervene in the administration of estates; the remedy was
uncertain and unpredictable; it would complicate estate planning; it could aggravate
dependants’ financial problems during the administration of estates; in the case of
divorce many cases would be settled out of court, whereas upon death an equitable
distribution would require litigation; and the deceased spouse would not be alive to
defend the claim.

[44] The possibility of extending a redistribution remedy to new ANC marriages was
debated again in 1990. The SAL C was against this. Its report stated that section 7(3)
“was only meant to be an outlet valve to alleviate the unfairness in existing marriages
that had been made subject to the rigid predetermined matrimonial property systems”.29
Differentiation
[45] The first step in the section 9 analysis is to determine whether there is
differentiation between people or groups of people. Although the High Court and the
applicant contrasted the positions of surviving spouses in old ANC marriages dissolved
by death and accrual marriages dissolved by death, I do not regard this as the relevant
differentiation. The redistribution remedy and the accrual regime are decidedly
different phenomena. The former i s a judicial remedy applicable upon dissolution of
the marriage; the latter is an elective marital property regime applicable from the

29 South African Law Commission Project 12, Review of the Law of Divorce, Amendment of section 7(3) of the
Divorce Act, 1979 (July 1990) at 23.
ROGERS J
25
commencement of the marriage. Spouses in old ANC marriages and spouses in accrual
marriages are not similarly circumstanced to a sufficient degree to make them a sensible
subject of differentiation analysis.

[46] In my view, the relevant differentiation is confined to spouses in old ANC
marriages. Within that group, spouses whose marriages terminate by divorce are treated
differently from those whose marriages terminate by death , because the former class
has the benefit of the redistribution remedy whereas the latter class does not.

Rational relationship to legitimate governmental purpose
[47] Does this differentiation bear a rational 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.30 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 manner. This has been said to promote the need for governmental
action to relate to a defensib le 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 constitutes ‘a bridge away from a culture of authority . . . to a
culture of justification.”31

[48] What legitimate government purpose is served by confining the redistribution
remedy to old ANC marriages dissolved by divorce? The lawmaker, by introducing the
redistribution remedy, was seeking to ameliorate the hardship which might be suffered
by spouses to old ANC marriages who, for whatever reason, did not adopt the accrual
regime during the window -period and who would be left without recognition for their
contributions to the increase in the estate of the other spouse. This hardship could arise
regardless of the way in which the marriage is dissolved. The redistribution remedy

30 Prinsloo v Van der Linde [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC) (Prinsloo) at
para 25.
31 Id.
ROGERS J
26
was to compensate spouses in old ANC marriages who had got married at a time when
the statutory accrual regime did not exist. The accrual regime, for which the
redistribution remedy was conceived as compensation in old ANC marriages, was a
regime which benefited spouses whose marriages were terminated by divorce or death.

[49] The underlying justification for introducing the remedy therefore applied equally
to marital dissoluti on by divorce and death. Was there nevertheless a legitimate
government purpose in excluding dissolution by death? The concern that a
discretionary judicial remedy would create uncertainty cannot justify the distinction,
because that uncertainty was tole rated in the case of marriages dissolved by divorce.
The so-called principle that courts do not intervene in the administration of estates is
hard to understand. If a person has a claim against a deceased estate, the courts have to
deal with it unless the executor concedes the claim. The same is true of the concern that
extending the remedy to marital dissolution by death would complicate estate planning.
A spouse planning his or her financial affairs would have to take account of the fact that
he or she might undergo divorce and that a redistribution remedy might then be claimed
by the other spouse. There is no reason why such a spouse should not also take that
possibility into account in the case where the marriage is dissolved by death.

[50] Another just ification offered , when the legislation was introduced , was that
redistribution claims upon divorce would often be settled out of court whereas such
claims upon death would need to be litigated. It was suggested that, because of the need
for litigation, a redistribution remedy upon death would be of little value to the people
who needed it most, because they could not afford to litigate. This justification, like the
others, lacks legitimacy. There is no reason why an executor could not settle a
reasonable redistribution claim. Conversely, redistribution claims upon divorce are
often contested. In the case of both divorce and death, an indigent surviving spouse
might not be able to afford to litigate.

[51] Finally, there is the supposed justification considered and rejected by the
High Court, namely that the deceas ed spouse is no longer alive to contest the claim.
ROGERS J
27
This could prejudice creditors and beneficiaries in the estate. Similar thinking probably
underlies statutory provisions which confine claims for forfeiture of benefits to
divorce.32 This comes closest t o offering a legitimate government purpose for the
differentiation at issue, but in my view it does not quite meet the constitutional standard,
particularly when one takes into account the pressing justification which was thought
to justify the adoption of such a remedy in the case of divorcing spouses.

[52] First, it is by no means inevitable that an executor of a deceased spouse’s estate
would not have evidence at his or her disposal. Children, relatives and friends of the
deceased might be able to give rele vant evidence and there might also be relevant
documentation. Second, it is not unusual that the only witness who could have testified
on one side of a case is deceased. In such circumstances, our courts assess the evidence
of the other side “with a very cautious eye”. 33 Such litigation might occur in other
marital settings, for example in relation to accrual and community estates.

[53] For these reasons, the exclusion of the redistribution remedy in the case of the
dissolution of old ANC marriages by death i s a differentiation which does not meet a
legitimate government purpose. This differentiation thus limits section 9(1) of the
Constitution. As a postscript to this conclusion, I mention that the United Kingdom’s
Supreme Court recently associated itself w ith a trial judge’s description of a
matrimonial statute which drew a similar divorce/death distinction as “illogical,
arbitrary and capable of meting out great injustice”.34

32 See section 9(1) of the Divorce Act and section 9 of the M PA. Section 9(2) of the Divorce Act provides that,
in the case of a divorce granted on the grounds of mental illness or continuous unconsciousness of the defendant,
no order for the forfeiture of benefits shall be made against the defendant.
33 Wood v Estate Thompson 1949 (1) SA 607 (D) at 614, cited with approval in Borcherds v Estate Naidoo 1955
(3) SA 78 (A) at 79C -F. On this cautionary rule, see also Zwart and Mansell NNO. v Snobberie Cape (Pty) Ltd
[1984] ZASCA 18 at 20 and Christelis N.O. v Meyer N.O. [2014] ZASCA 53 at para 35.
34 Unger & Anor v Ul-Hasan (deceased) & Anor [2023] UKSC 22 at para 109, approving this description in Hasan
v Ul-Hasan (deceased) & Anor [2021] EWHC 1791 (Fam) at para 68. The statutory provision was section 12(1)
of the Matrimonial and Family Proceedings Act 1984. In terms of this provision, a spouse to a former marriage
dissolved by the decree of a foreign court could bring proceedings in England for financial relief akin to a
redistribution order. The former wife in s uch a marriage brought a claim in terms of section 12(1). The former
husband died a few weeks before the application was to be heard. The Supreme Court held that a section 12(1)
ROGERS J
28

Unfair discrimination
[54] Before considering whether th e limitation of section 9(1) is justifiable under
section 36, I address the case for unfair discrimination. The case advanced by the
applicant and upheld by the High Court was one of differentiation on the basis of marital
status, which is one of the grounds of presumptively unfair d iscrimination listed in
section 9(3) of the Constitution. The scope of the expression “marital status” in
section 9(3) was considered by this Court in Van der Merwe .35 At issue was the
constitutional validity of section 18(b) of the MPA. Section 18 dealt with spouses
married in community of property. Section 18(a) provided that delictual damages
recovered by a spouse, other than damages for patrimonial loss, did not fall into the
joint estate but became the separate property of that spouse. Section 18(b ) provided
that a spouse in a community marriage could recover from the other spouse “damages,
other than damages for patrimonial loss, in respect of bodily injury suffered by [the
spouse] and attributable either wholly or in part to the fault of [the other spouse]”.

[55] The parties in Van der Merwe argued that section 18(b) breached section 9(1) of
the Constitution because it did not further a legitimate government purpose and
breached section 9(3) because it was presumptively unfair discrimination on the basis
of marital status. This Court accepted the first contention but was unimpressed by the
second. Although t he point was not finally decided, Moseneke DCJ, writing for a
unanimous Court, said this about the contention that there was differentiation on the
basis of “marital status”:

“To me it seems plain that the differentiation made by section 18(b) is not abou t a
protectable interest or burden that attaches to married people but is denied unmarried
people. The distinction created by section 18(b) is in essence between the different

claim did not survive the death of the former husband. Unlike the courts in this country, the courts in England
could not remedy the injustice by declaring the statute invalid.
35 Van der Merwe v Road Accident Fund [2006] ZACC 4; 2006 (4) SA 230 (CC); 2006 (6) BCLR 682 (CC) (Van
der Merwe).

ROGERS J
29
proprietary consequences of marriages in and out of community of property. Thi s is
not a case where the law withholds from unmarried people a protection or right which
it grants to married people. This is a case in which the law denies one class of married
people a protection that another class enjoys.
The equality jurisprudence of this Court on the specified ground of ‘marital status’ so
far relates to protectable interests or disabilities of being married or not being married.36
. . . The challenged measure merely regulates and distinguishes rights and duties that
attach to different property regimes within marriage.
The applicant urged upon us to adopt a generous and expansive meaning of ‘marital
status’ as required when giving effect to a right in the Bill of Rights. For this
proposition applicant referred to the dictionary meaning of ‘marital’ and ‘status’. None
appear to support the meaning contended for. Be that as it may, it is open to doubt
whether the specified ground of marital status is engaged by the impugned legislative
differentiation. If that w ere so, it would imply that any difference in proprietary
consequences of marital regimes prescribed by the common law or legislation is
presumptively discriminatory and unfair unless shown not to be. In my view, such a
generous and far -reaching understanding of ‘marital statu s’ in section 9(3) of the
Constitution may well be untenable. However, given the conclusion I have come to on
the rationality requirement of equality under section 9(1) of the Constitution, I need
not, in this case, reach a final conclusion on whether the differentiation is on the
specified ground of marital status.”37

[56] On the divorce/death issue, the relevant differentiation is between spouses in old
ANC marriages whose marriages are terminated by divorce and by death respectively.
The latter are treated less favourably. Even if “marital status ” in section 9(3) went

36 At this point in his judgment, Mosen eke DCJ by way of fn 58 cited the following authorities: Volks N.O. v
Robinson [2005] ZACC 2; 2005 (5) BCLR 446 (CC) (Volks N.O.), Satchwell v President of the Republic of South
Africa [2003] ZACC 2 ; 2003 (4) SA 266 (CC); 2004 (1) BCLR 1 (CC), Du Toit v Mi nister of Welfare and
Population Development [2002] ZACC 20 ; 2003 (2) SA 198 (CC); 2002 (10) BCLR 1006 (CC), National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000 (2) SA 1 (CC) ; 2000
(1) BCLR 39 (CC), National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] ZACC 15; 1999
(1) SA 6 (CC); 1998 (12) BCLR 1517 (CC), Fraser v Children’s Court, Pretoria North [1997] ZACC 1; 1997 (2)
SA 261 (CC); 1997 (2) BCLR 153 (CC) and Brink v Kitshoff N.O. [1996] ZACC 9; 1996 (4) SA 197 (CC); 1996
(6) BCLR 752 (CC). He added: “For a discussion of the ground of marital status as a form of discrimination see
also Currie and De Waal The Bill of Rights Handbook 5 ed (Juta, Lansdowne 2005) at 254-6.” (The reference to
Satchwell is omitted in the published law reports.) To these cases may now be added Bwanya above n 23, VJV v
Minister of Social Development [2023] ZACC 21 (VJV) and Centre for Child Law v T.S. [2023] ZACC 22.
37 Van der Merwe above n 35 at paras 45-7.
ROGERS J
30
beyond a distinction between being married and not being married, in the present case
the marital status of the spouses in question is identical: they are all spouses in old ANC
marriages. The basis of differentiation is not the ir marital status but the way in which
identical marriages terminate.

[57] The fact that the law attaches different con sequences to the termination of old
ANC marriage by divorce on the one hand and death on the other is not a differentiation
based on attributes and characteristics which have the potential to impair the
fundamental human dignity of persons as human beings or to affect them adversely in
a comparably serious way. Prinsloo tells us that t he relevant “attributes and
characteristics” are those attaching to people.38 In Harksen, this Court cautioned against
understanding “attributes and characteristics” narrowly, adding:

“What the specified grounds have in common is that they have been used (or misused)
in the past (both in South Africa and elsewhere) to categorise, marginalise and often
oppress persons who have had, or who have been associated with, these attributes or
characteristics. These grounds have the potential, when manipulated, to demean
persons in their inherent humanity and dignity. There is often a complex relationship
between these grounds. In some cases they relate to immutable biological attributes or
characteristics, in some to the associational life of humans, some to the intellectual ,
expressive and religious dimensions of humanity and in some cases to a combination
of one or more of these features.”39

[58] Even on the broadest view of “attributes and characteristics”, however,
differentiation based on whether the marriage ends by divorce or death has nothing to
do with the attributes and characteristics of the spouses. It follows that the High Court
erred in finding unfair discrimination on the basis of marital status.

[59] The applicant did not advance a case of indirect discrimination based on gender.
I shall be considering that question in the context of Case CCT 158/22. Arguably, a

38 Prinsloo above n 30 at para 31.
39 Harksen above n 14 at para 50.
ROGERS J
31
conclusion favourable to the applicant on this issue in Case CCT 158/22 might justify
a similar conclusion on the divorce/death issue. However, and particula rly in view of
my conclusion of a section 9(1) infringement, it is unnecessary to delve further into the
possibility of indirect discrimination.

Section 36 of the Constitution – justification
[60] Is the limitation on the equality right in section 9(1) of the Constitution justifiable
in terms of section 36 of the Constitution? I have some difficulty in seeing how statutory
differentiation which bears no rational relationship to a legitimate government purpose
could ever be justified under section 36. The test for this component of equality seems
to be such as to rule out justification once a statutory provision has failed the test. This
is because justifiability will already have been determined in assessing the legitimacy
of the government purpose. However, it is enough for present purposes to say that the
only factors put up as a possible justification for the differentiation are those I have
already rejected as legitimate government purposes, and they must also fail as grounds
of justification under section 36.

[61] Where a marriage is dissolved by death rather than divorce, the spousal
relationship may have been harmonious at the time of dissolution. The deceased spouse
may have made ample provision for the survivor in his or her will or the survivor may
inherit a substantial amount o n intestacy.40 This is not, however, a justification for
withholding a redistribution remedy where marriages are dissolved by death. In terms
of section 7(5)(a) of the Divorce Act, the court assessing a r edistribution claim must
have regard to the existing means and obligations of the parties; and in terms of
section 7(5)(d), the court must take into account any other factor which in its opinion
should be taken into account. The fact that a surviving spou se stands to inherit would
undoubtedly be a very significant factor to be taken into account if the redistribution
remedy were extended to marital dissolution by death. It may be that, almost as a matter

40 See section 1(1) of the Intestate Succession Act 81 of 1987.
ROGERS J
32
of course, the amount of the inheritance should be deducted from the amount that would
otherwise have been awarded to the survivor as a redistribution remedy. 41 Going
forward, of course, the interplay between inheritance and a redistribution claim could
be the subject of express provisions in spouses’ wills.

[62] Although the surviving spouse’s redistribution claim would be an ordinary
concurrent claim against the estate, this ought not to prejudice the creditors of the
deceased estate at the date of his or her death. The court making a redistribution claim
must take into account the means and obligations of both parties. Furthermore, a
redistribution claim only arises if the claimant has contributed directly or indirectly to
the maintenance or increase in the other spouse’s estate. If the deceased spouse die s
insolvent, it is difficult to envisage circumstances in which it could be said that the
deceased’s estate was maintained or increased, and in any event the pre -existing
obligations of the deceased spouse’s creditors have to be taken into account. And if the
deceased estate is not insolvent, it seems unlikely that a court could ever justifiably
award a surviving spouse more than the remaining net value of the estate, since the
remaining net value would repr esent the full value of the deceased spouse’s estate to
the maintenance or increase of which the surviving spouse contributed.

[63] A court considering a redistribution claim may order the transfer of specific
assets or an amount of money. 42 If the remedy is e xtended to dissolution by death, a
court might well conclude that a monetary award is more appropriate than the transfer

41 The surviving spouse’s claim in the proposed remedy would be an ordinary concurrent claim against the
deceased estate. Assume that a deceased husband has a gross estate of R1 million and ordinary creditors of
R100 000 and has bequeathed the residue of his estate equally to his wife and two children. Ignoring a possible
redistribution claim by the surviving wife, she and the two children would each receive an inheritance of
R300 000. If, disregarding her inheritance, her redistribution claim would be valued at R200 000, one would
expect a court adjudicating the redistribution claim to make no award, since without an award she in any event
receives more than R200 000 from her late husband’s estate. Conversely, if, disregarding her inheritance , her
redistribution claim would be valued at R400 000, a court adjudicating the claim could make an award that would
ensure that overall she receives no more than R400 000. On my example, this could be achieved by making a
redistribution order in her favour of R150 000. This would leave a net amount of R750 000 in the deceased estate,
of which the surviving wife’s share on inheritance would be R250 000.
42 Bezuidenhout v Bezuidenhout [2004] ZASCA 127; 2005 (2) SA 187 (SCA) is an example of a case where th e
Court made a monetary award.

ROGERS J
33
of specific assets, at least in cases where a monetary award c an be made without
disturbing the deceased spouse’s testamentary disposition of specific assets. The broad
discretion which a court is given and the wide range of factors it may take into account
should be sufficient to address this and other issues which might be peculiar to the case
of a redistribution claim against a deceased estate.

Remedy
[64] The Minister submitted that section 7(3) of the Divorce Act was the wrong target
for the constitutional attack since one would not expect to find, in the Divorce Act, a
provision regulating the consequences of the termination of marriag es by death.
Technically, that is right. However, it is the existence of section 7(3), coupled with the
absence in any other legislation of a similar remedy for marital dissolution by death,
that gives rise to the differentiation. It is understandable, therefore, that section 7(3)
was the target of the attack. That the remedy might more appropriately be a reading-in
of an analogous provision into the MPA is not fatal to the confirmation proceedings.

[65] The High Court ordered a reading -in, without any sugg estion that the order
should be suspended. Although neither side made submissions on the subject of
suspension, it would in my view be appropriate to afford Parliament 24 months within
which to remedy the defect. However, there is no reason why in the me antime there
should not be immediate effective relief in the form of an interim reading -in. The
obvious place for this would be immediately after section 36 of the MPA, which
introduced the redistribution remedy in the case of divorce. Although the natural focus
of attention has been on the case of a surviving spouse wishing to make a redistribution
claim against the estate of a deceased spouse, the High Court’s reading -in covered the
converse situation as well, and there is no reason why this should not be so. The High
Court’s reading-in was made in the introductory part of section 7(3), and thus applied
to old ANC marriages, BAA marriages and homeland marriages. Once again, there is
no reason not to follow suit.

ROGERS J
34
[66] I flag two matters, relating to customary and Muslim marriages respectively. In
terms of section 2 of the Recognition Act, valid customary marriages are recognised for
all purposes as marriages. Section 8(1) provides that a customary marriage may only
be dissolved by a court by a decree of di vorce on the ground of the irretrievable
breakdown of the marriage. In terms of section 8(4)(a), “[a] court granting a decree for
the dissolution of a customary marriage” has the powers contemplated in, among others,
section 7 of the Divorce Act. This includes the power to make a redistribution order.
However, the Recognition Act gives a court the power to make a redistribution order
only when it is granting a decree for the dissolution of a customary marriage.

[67] In regard to Muslim marriages, this Court in Women’s Legal Centre Trust 43
declared the Marriage Act44 and Divorce Act to be inconsistent with sections 9, 10, 28
and 34 of the Constitution for failing to recognise Muslim marriages (that is, marriages
solemnised in accordance with Sharia law), which have not been registered as civil
marriages, as valid marriages for all purposes in South Africa and to regulate the
consequences of such recognition. 45 This Court also declared various sections of the
Divorce Act to be inconsistent with those provisions of the Constitution. Among others,
section 7(3) was found to be inconsistent with the Constitution for failing to provide for
a redistribution of assets on the dissolution of a Muslim marriage when such
redistribution would be just. 46 The d eclarations of invalidity were suspended for
24 months. Various forms of interim relief were granted, one of which was the
following:

“Pending the coming into force of legislation or amendments to existing legislation
referred to in paragraph 1.6, it is declared that Muslim marriages subsisting at 15
December 2014, being the date when this action was instituted in the High Court, or
which had been terminated in terms of Sharia law as at 15 December 2014, but in

43 Women’s Legal Centre Trust v President of the Republic of South Africa [2022] ZACC 23; 2022 (5) SA 323
(CC); 2023 (1) BCLR 80 (CC) (Women’s Legal Centre Trust).
44 25 of 1961.
45 Women’s Legal Centre Trust above n 43 at para 1.1 of the order.
46 Id at para 1.3 of the order.
ROGERS J
35
respect of which legal proceedings have been institut ed and which proceedings have
not been finally determined as at the date of this order, may be dissolved in accordance
with the Divorce Act as follows:
(a) all the provisions of the Divorce Act shall be applicable, save that all
Muslim marriages shall be treated as if they are out of community of
property, except where there are agreements to the contrary, and
(b) the provisions of section 7(3) of Divorce Act shall apply to such a
union regardless of when it was concluded.
(c) in the case of a husband who is a spouse in more than one Muslim
marriage, the court:
(i) shall take into consideration all relevant factors, including
any contract or agreement between the relevant spouses, and
must make any equitable order that it deems just; and
(ii) may order that any person who in the court’s opinion has a
sufficient interest in the matter be joined in the
proceedings.”47
As with customary marriages, the above order in respect of Muslim marriages appears
to confine the applicabil ity of section 7(3) to dissolution upon divorce. These are
matters which could usefully receive Parliament’s attention.

[68] In regard to costs, the Minister submitted that, since he has not opposed
confirmation but merely complied with his duty to place the state’s policy position
before the Court, he should not be ordered to pay costs. Despite the absence of
opposition, it is appropriate in my view to order the Minister to pay the applicant’s costs,
as we did in similar circumstances in VJV.48 To this there is one qualification. This
case was initially argued on 11 August 2022. We later raised with the parties the
desirability of having this case re -argued together with CCT 158/22. There being no
objection, this course was followed, and the two cases were heard together on

47 Id at para 1.7 of the order.
48 VJV above n 36 at paras 92-6.
ROGERS J
36
10 May 2023. Since the jettisoning of the first hearing was not due to the fault of either
side, our costs award will not include the costs of the appearance on 11 August 2022.

Case CCT 158/22 – the before/after issue
High Court judgment
[69] In her High Court application, the applicant adduced expert evidence in the form
of reports by a clinical psychologist, Ms Judith Ancer , and a joint report by
Prof Elsje Bonthuys, a professor of law at the University of the Witwatersrand, and
Dr Azille Coetzee, a postdoctoral fellow at the South African Research Chair in Gender
Politics at Stellenbosch University. The High Court referred to and relied on parts of
this expert evidence.

[70] The High Court observed that, where both spouses are economically active and
support each other to more or less the same degree in their endeavours, an ANC
marriage has no real disadvantages for the m. Such a system is, however,
disadvantageous when one of the spouses is or becomes economically inactive49 during
the marriage . Historically it was the wife who sacrificed her career. Although
occurrences of men becoming homemakers are increasing, women are still
predominantly the economically disadvantaged spouse s. This is an i nternational

49 The expressions “economically active” and “economically inactive” were used by the High Court. However, I
should make clear (as indeed, I am sure, the Judge in the High Court was aware) that the endeavours of a spouse
who does not earn money through employment or commercial activity but who, for example, spends his or her
days looking after the couple’s children and managing their home have economic value. Whether and how this
should be recognised in measuring gross domestic product (GDP) has been the subject of growing debate. See,
for example, Stiglitz, Sen and Fitoussi Report by the Commission on the Measurement of Economic Performance
and Social Progress (2009) at para 63:
“There have been major changes in how households and society function. For example, many
of the services people received from other family members in the past are now purchased on the
market. This shift translates into a rise in income as measured in the national accounts and may
give a false impression of a change in living standards, while it merely reflects a shift from
non-market to market provision of services. Many services that households produce for
themselves are not recogni sed in official income and production measures, yet they constitute
an important aspect of economic activity. While their exclusion from official measures reflects
uncertainty about data more than it does conceptual dissent, more and more systematic work in
this area should be undertaken.”
A 2016 United Nations report estimated the value of unpaid care and domestic work at between 10% and 39% of
global GDP: Women’s Economic Empowerment in the Changing World of Work Report of the Secretary-General,
E/CN.6/2017/3 (30 December 2016) at para 25.
ROGERS J
37
phenomenon. Section 7(3) was introduced in an effort to address the obvious
disadvantage suffered by the economically inactive spouse. This remedy differs,
however, from the accrual regime, in that there is no automatic sharing in the economic
fruits of the marriage; the claimant -spouse must, among other things, prove a
contribution to the maintenance or increase of the other spouse’s estate.

[71] In regard to section 9(1) of the Constitution, the High Court held that limiting
the redistribution remedy to old ANC marriages was not irrational. In respect of new
marriages, parties had the option of exclud ing the accrual system. Such an exclusion
occurred as a deliberate choice in an antenuptial contract executed before a notary. The
redistribution remedy was a legislative innovation to address the plight of economically
disadvantaged spouses who did not have the same opportunity. By restricting the
remedy to old ANC marriages, the lawmaker was honouring the principles of freedom
of contract and pacta sunt servanda (agreements must be complied with). This
legislative choice, the High Court said, was not without merit.

[72] The High Court held, however, that the differentiation was unfair discrimination
in terms of section 9(3). The High Court referr ed to the fact that spouses in old ANC
marriages had the choi ce, during the window -period, to adopt the accrual regime.
Although this was not relevant, in the High Court’s view, to the section 9(1) challenge,
it was relevant to the section 9(3) enquiry. This was because spouses in old ANC
marriages, like spouses in new ANC marriages, had the option to adopt or reject the
accrual regime, yet only spouses in old ANC marriages were given the redistribution
remedy. Economically disadvantaged spouses in new A NC marriages were deprived
of a benefit given to economically disadvantaged spouses in old ANC marriages, based
solely on the date of marriage.

[73] The High Court was asked to find that there was discrimination on the grounds
of gender because choice for many women, so the argument went, is illusory and
because the absence of a redistribution remedy in the case of new ANC marriages in
practice disadvantages women more often than men. Th ere was also an argument of
ROGERS J
38
discrimination on the grounds of race, because the absence of a redistribution remedy
was said to have a greater prejudicial effect on black women than other women.
The High Court found it unnecessary to determine whether this was so, although it
observed that “[o]nly those who go blindfolded through life can deny that gender
equality has not yet been achieved in South Africa” . The equality issue in the present
case, so the High Court considered, was “not solely attributable to race or gender or
religion, but also to economic inequity”. The grounds of discrimination listed in
section 9(3) are not exhaustive.

[74] The High Court referred to expert opinion that antenuptial contracts usually
favour wealthier spouses and that, as a result of gender discrimination, women tend to
be poorer than men. Their stereotypical roles of childcaring and housework negatively
affect their earning capacity. And in this context, black women are the “marginalised
of the marginalised”. In the High Court’s opinion, however, the constitutional validity
of section 7(3) should not be considered solely from the perspective of spouses when
they conclude their antenuptial contract, because there could be many legitimate reasons
for spouses to exclude the accrual system despite wealth disparities. The important
inequality occurred during the course of the marriage: “a distortion is caused by the fact
that one spouse contributes directly or indirectly to the other’s maintenance or the
increase of the other’s estate without any quid pro quo”. This economic disparity is
revealed when the marriage is dissolved. For old ANC marriages, section 7(3) allows
the court to address the inequity, irrespective of the gender or race of the economically
disadvantaged spouse.

[75] The differentiation, in the High Court’s view, was based solely on the date of the
commencement of the MPA. In regard to economic disadvantage, the only difference
between old and new ANC marriages was the speculative argument that spouses in old
ANC marriages might have been unaware of their right to adopt the accrual sys tem
during the window-period:

ROGERS J
39
“Speculation aside, these groups are par excellence in a similar situation, and yet the
one group is denied the benefit of section 7(3)(a) only on the basis of the date on which
their marriage was concluded. The differentiation amounts to discrimination based on
the date on which a marriage was concluded because economically disadvantaged
parties’ human dignity is impaired if they cannot approach the court to exercise the
discretion provided for in section 7(3) of the Divorce Act. Unlike their counterparts
whose marriages were concluded before 1 November 1984, economically
disadvantaged parties who contributed to their spouses’ maintenance or the growth of
their estates, are vulnerable parties whose only recourse is to approa ch the court for
maintenance. The unequal power relationship implicit to any maintenance claim, and
the extent to which it renders an economically disadvantaged part y vulnerable, in the
circumstances speaks for itself.”

[76] In regard to the principle that contracts must be honoured, the High Court
referred to Van der Merwe ,50 where it was stated that the constitutional validity of
legislation is a matter of objective assessment and that a spouse’s choice of a
matrimonial prope rty regime c annot confer validity on a law that otherwise lack s a
legitimate purpose.51 The fact that the spouses chose a particular property regime was
simply one of many factors a court would take into account when asked to make a
redistribution order. In other marital contexts, the lawmaker has permitted courts to
override spousal choice, for example, orders for the forfeiture of patrimonial benefits,52
for pre-dissolution division of accrual and termination of the accrual regime, 53 and for
pre-dissolution division of community estates and termination of the community
regime.54

[77] The High Court rejected an argument from the amicus that the existence of a
maintenance claim negated the need for a redistribution remedy. A party receiving
maintenance remains de pendent on the other. This is unjustifiable in the case of a

50 Van der Merwe above n 35.
51 Id at para 61.
52 Section 9(1) of the Divorce Act.
53 Section 8 of the MPA.
54 Section 20 of the MPA.
ROGERS J
40
spouse who contributed to the growth of the other spouse’s estate. Section 7(3)
recognises the economic value of services performed in the domestic sphere , thereby
respecting and protecting the dignity of that spouse.

[78] The High Court also addressed the argument that a discretionary judicial remedy
is inherently uncertain. Tension between legal certainty and fairness is not novel.
Uncertainty in the outcome of a redistribution claim is preferab le to the irremediable
harshness that might flow from denying such a remedy. The same was true of the
amicus’ concern that the remedy could prejudice creditors of the spouse against whom
a redistribution claim is made. Such prejudice had not deterred Par liament from
granting a redistribution remedy for old ANC marriages or from empowering courts to
make orders for the forfeiture of benefits and for the pre -dissolution division and
termination of accrual and community estates.

[79] The High Court concluded tha t d ifferentiation based solely on the date of
marriage did not withstand constitutional scrutiny and violated section 9(3). As to
remedy, the High Court, citing Gumede,55 held that there was no reason to suspend the
declaration of invalidity. An appropriate remedy was simply to strike out the offending
words from section 7(3)(a); this would not leave any lacuna. As to retrospectivity, the
order should not affect new ANC marriages that were terminated by death or divorce
before the date of the High Court’s order. I have already quoted the High Court’s order.

Submissions in this Court
The applicant
[80] The applicant p ersists with the section 9(1) challenge which the High Court
rejected. And although the applicant supports the High Court’s conclusion of unfair
discrimination in violation of section 9(3), the applicant argues that the discrimination
is on listed grounds: sex, gender, marital status, culture, race and religion.

55 Gumede (born Shange) v President of the Republic of South Africa [2008] ZACC 23; 2009 (3) SA 152 (CC) ;
2009 (3) BCLR 243 (CC) (Gumede).
ROGERS J
41

[81] The applicant argues that section 7(3) differentiates between spouses to new
ANC marriages on the one hand, who do not have access to the redistribution remedy,
and the following classes of spouses who do have such access: spouses in old ANC
marriages, BAA marriages, homeland marriages, customary marriages and Muslim
marriages. The purpose of section 7(3), according to the applicant, is to counteract the
inequity an d injustice inflicted on spouses who contribute to the maintenance or
increase of their partner’s estate during marriage but have no recourse upon divorce. 56
A spouse in a new ANC marriage can suffer exactly the same inequity and injustice
when the marriage is dissolved. The differentiation, so the applicant contends, is
irrational.

[82] In response to the argument that spouses to new ANC marriages could have
chosen not to exclude the accrual regime and thus only have themselves to blame, the
applicant argues that this Court in Bwanya57 rejected an argument based on freedom of
choice. The applicant also finds support for such rejection in the evidence of her
experts, who opined that women typically enter into marriage poorer and more
dependent than men and tend to have less bargaining power. Given stereotypical roles
during marriage, an AN C marriage generally favours men. The absence of a
redistribution remedy for new ANC marriages fails “to correct the exploitation of
women’s care and domestic labour, to the direct and structural advantage of men”.58

[83] Furthermore, so the applicant’s argume nt goes, section 7(3) itself debunks the
freedom of choice argument: its very purpose is to protect people who “chose” to marry
out of community of property rather than in community of property. The applicant also
cites the examples given by the High Cour t – orders for forfeiture of benefits and the
pre-dissolution division and termination of accrual and community regimes. The choice
of a property regime in an antenuptial contract is not a commercial bargain – it is imbued

56 The applicant refers in this regard to Beaumont v Beaumont 1987 (1) SA 967 (A) at 987G.
57 Bwanya above n 23.
58 This is the view expressed in the joint report by Prof Bonthuys and Dr Coetzee.
ROGERS J
42
with emotional and social dimensions and is intended to last for life or at least for a long
time.

[84] The redistribution remedy is only available, the applicant emphasises, in the case
of divorce, that is, when marriages do not turn out as expected. (This point falls away
in the light of my conclusion in Case CCT 364/21.) The remedy is under judicial control
and can only be granted if certain conditions are met and in order to avoid inequity and
injustice.

[85] The differentiation offends section 9(1), according to the applicant. If the
lawmaker differentiated because of the different choices available to spouses to old and
new ANC marriages respectively, the differentiation does not make sense. The
redistribution remedy is available to spouses in old ANC marriages despite their choice
to exclude community of property , but is not available to spouses in new ANC
marriages because of their choice to exclude the accrual system. People who “choose”
to marry out of community of property are equally deserving of protection, whether or
not they also “choose” to exclude the accrual system.

[86] The differentiation also offends section 9(3) on various listed grounds. In this
regard, the applicant distinguishes between the different types of marriages which enjoy
access to the redistribution remedy:
(a) As between new and old ANC marriages, there is differentiation on the
basis of gender and sex, because the absence of the remedy has a more
severe impact on women than men. Accor ding to the joint report of the
applicant’s experts, marriage statistically enhances men’s financial
prospects while negatively affecting women’s. This means that men and
women are often not similarly situated when marriages end. The absence
of an equitable judicial remedy typically disadvantages women. Women
may also be trapped in abusive marriages because they do not have the
means to support themselves if the marriage were to be dissolved.
ROGERS J
43
(b) As between new ANC marriages and BAA marriages, there is
discrimination on the grounds of race. This is so, argues the applicant,
because spouses in BAA marriages, who would all be black persons, have
the benefit of the redistribution remedy whereas spouses in new ANC
marriages do not.
(c) As between new ANC marriages o n the one hand, and homeland and
customary marriages on the other, there is, according to the applicant,
differentiation on the basis of marital status. Spouses married under
South African civil law only enjoy the remedy if they got married before
1 November 1984 whereas spouses married under homeland or
customary law enjoy the remedy regardless of when they got married.
This is also irrational, according to the applicant, and thus an infringement
of section 9(1).
(d) As between new ANC marriages and Muslim m arriages, there is, so the
applicant argues, differentiation on the basis not only of marital status but
also of religion and culture.

The CGE
[87] Since the CGE unequivocally supports confirmation, I take its submissions next.
The CGE argues, first, that South Africa has relevant obligations under international
law. It is a party to the Convention on the Elimination of All Forms of Discrimination
against Women 59 (CEDAW). In terms of Article 16(1), State Parties must take
appropriate measures to eliminate discrimination against women in all matters relating
to marriage and family relations and must, among other things, ensure, “on a basis of
equality of men and women . . . [t]he same rights for both spouses in respect of the
ownership, acquisition, management , administration, enjoyment and disposition of
property”.60

59 Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979 (ratified by
South Africa on 15 December 1995).
60 Id at Article 16(1)(h).
ROGERS J
44

[88] The CGE also refers to the commentary on Article 16 in several General
Recommendations issued by the CEDAW Committee.61 According to the Committee,
financial and non -financial contributions in a marriage should be accorded equal
weight.62 Where antenuptial contracts are permitted, State Parties must ensure that
women are not , due to unequal bargaining power, left with less protection than they
would have under the default property regime. 63 As a general principle, the economic
advantages and disadvantages of a marriage should be shared equally when it is
dissolved.64

[89] The CGE also cites Article 7(d) of the African Union’s Maputo Protocol,65 which
requires an equitable sharing of joint property upon dissolution of marriage. In a
General Comment on this provision, 66 the African Commission has said that State
Parties must, in recognition of women’s unequal position, implement special measures

61 The Committee on the Elimination of Discrimination against Women. This Committee is a body of independent
experts that monitors implementation of CEDAW. It consists of 23 experts on women’s rights from around the
world.
62 CEDAW Committee , General Recommendation No . 21: Equality in Marriage and Family Rel ations, 1994
(General Recommendation No. 21) at para 32, which reads:
“In some countries, on division of marital property, greater emphasis is placed on financial
contributions to property acquired during a marriage, and other contributions, such as raisin g
children, caring for elderly relatives and discharging household duties are diminished. Often,
such contributions of a non -financial nature by the wife enable the husband to earn an income
and increase the assets. Financial and non-financial contributions should be accorded the same
weight.”
63 CEDAW Committee, General Recommendation on Article 16 of the Convention on the Elimination of All
Forms of Discrimination against Women: Economic Consequences of Marriage, Family Relations and their
Dissolution, 2013 (General Recommendation on Article 16) at para 34.
64 Id at para 45. See also para 46 which states:
“State parties are obligated to provide, upon divorce and/or separation, for equality between the
parties in the division of all property accumulated d uring the marriage. States parties should
recognise the value of indirect, including non -financial, contributions with regard to the
acquisition of property acquired during the marriage.”
65 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 11 July 2003
(Maputo Protocol) (ratified by South Africa on 17 December 2004).
66 African Commission on Human and Peoples’ Rights , General Comment No. 6 on Article 7(d) of the Protocol
to the African Charter on Human and People s’ Rights on the Rights of Women in Africa: The Right to Property
during Separation, Divorce or Annulment of Marriage (Article 7(d)), 2020.
ROGERS J
45
aimed at ensuring their property rights upon divorce, with an emphasis on substantive
equality. This may require apportioning more than half of the property to the wife.67

[90] The CGE submits that these international instruments not only permit but oblige
South Africa to allow departure from unjust antenuptial contracts in all marriages.
Section 7(3) is said to be inconsistent with this international obligation.

[91] The CGE th en turns to a comparative analysis, which it acknowledges is not
exhaustive. In its submission, South Africa would not be out of step with comparable
democracies if it extended the scope of section 7(3). The CGE identifies four countries
that have similar constitutional values to ours and w here a redistribution remedy is
available despite the terms of an antenuptial contract:
(a) In Kenya, the court may set aside an antenuptial contract that is
“manifestly unjust”.68
(b) In England and Wales, an antenuptial contract is not legally binding but a
court may have regard to it when granting financial reme dies, the weight
depending on the circumstances.69
(c) In Canada, four provinces are said to permit departures from antenuptial
contracts to ensure fairness and justice.70 CGE also refers to RS v PR,71 a

67 Id at paras 40-3.
68 Section 6(4) of the Matrimonial Property Act 2013.
69 Sections 24 and 25 of the Matrimonial Causes Act 1973. In regard to antenuptial contracts, the CGE cites the
seminal apex decision in Radmacher (formerly Granatino) v Granatino [2010] UKSC 42; [2011] 1 AC 534 ;
[2011] 1 All ER 373 (Radmacher).
70 According to the CGE, these are: British Columbia (section 93(3) and (5) of the Family Law Act 2011); Ontario
(section 56(4) of the Family Law Act 1990); New Brunswick (section 41 of the Marital Property Act 1980); and
Nova Scotia (section 29 of the Matrimonial Property Act 1989). Three of these examples might, however, be
questionable. In Ontario, a domestic contract may only be set aside for non -disclosure or if the spouse did not
understand the nature and consequences of the contract or “otherwise in accordance with the law of contract”. In
New Brunswick, the 1980 Act has been replaced by the Marital Property Act 2012. Section 43 (b) of the latter
Act, which is similar to section 41 of the 1980 Act, only permits a court to disregard a domestic contract on
grounds of inequity if a spouse concluded it “without receiving legal advice from a person independent of any
legal adviser of the other spouse”. In the case of Nova Scotia, section 29 only permits a court to vary the terms
of an antenuptial contract if the te rms are “unconscionable, unduly harsh on one party or fraudulent”. For a
discussion of the regimes prevailing in the various provinces as of 2004, see Hartshorne v Hartshorne 2004 SCC
22 (CanLII), [2004] 1 SCR 550 (Hartshorne) at paras 74-5.
71 R.S. v P.R. 2019 SCC 49 (CanLII), [2019] 3 SCR 643.
ROGERS J
46
decision of the Supreme Court of Canada, where Abella J in a concurring
judgment spoke of “consensus about spousal equality in the context of
marriage dissolution in various international instruments”.72
(d) In New Zealand, the default position is equal division of property upon
dissolution.73 Although spouses can opt out,74 a court may set aside an
opt-out agreement if giving effect to it would cause serious injustice. 75
“Serious injustice” has, however, been said to be a “high threshold”.76

[92] The CGE also seeks to buttress the applicant’s response on the choice argument.
It contends that the primary justific ation in the constitutional era for holding parties to
contracts is a “utilitarian commercial one”. This rationale does not hold for matrimonial
agreements, which are not commercial bargains. Marriage should be motivated by love,
not property. Moreover, in other contexts our courts have refused to enforce contracts
that are contrary to public policy. Antenuptial contracts often involve unequal
bargaining power and to enforce them routinely can have severe conseque nces for a
spouse. Expanding the scope of judicial intervention would not be a radical departure
from existing law.

[93] Finally, the CGE submits that sections 7(3) to (6) of the Divorce Act should give
clearer guidance to courts on how to exercise their discretion, with an equal division of
assets being the starting point. The CGE does not ask us to make findings on this but
merely to recognise that in its current form section 7(3) is not a panacea and that further
law reform may be needed to give full protection to women’s rights.

72 Id at para 126. The question in that case was whether a wife’s divorce proceedings in Québec should be stayed
pending the outcome of divorce proceedings brought by the husband in Belgium. The husband had exerci sed a
right, conferred by Belgian law, to revoke gifts to his wife. The approach in Canada was that if the law of Québec
would not recognise this revocation, the stay of the Canadian proceedings should be refused.
73 Section 1C(3) of the Property (Relationships) Act 1976.
74 Id at sections 21-21F.
75 Id at section 21J.
76 White v Kay [2017] NZHC 1643 at para 59. In the same paragraph, Ellis J stated that “generally speaking, mere
inequality or disparity between the parties, in terms of the division of property effected by an agreement is unlikely
to be decisive in determining whether that threshold is met”. In White the Court held that this high threshold was
met. In Winders v Winders [2018] NZHC 860, by contrast, the claim failed.
ROGERS J
47

The Minister
[94] The Minister makes submissions in accordance with what he conceives to be his
duty where the constitutional validity of a statute is an issue. In that regard, and
although he does not oppose confirmation, he explain s the purpose of section 7(3) as
being to provide a remedy for spouses in old ANC marriages who, for whatever reason,
did not avail themselves of the opportunity to adopt the accrual r egime during the
window-period.

[95] In regard to remedy, he submits that th e declaration of invalidity, if confirmed,
should be suspended for 24 to 36 months. He says that in 2018 the South African Law
Reform Commission 77 (SALRC) began a review of our matrimonial property law.
Several Issue Papers were published, which raised am ong other things an extension of
the redistribution remedy. The arguments made in comments against the extension
included that: an extension would not respect spouses’ right to contract; an aggrieved
spouse has remedies in law; the extension would perpetu ate and encourage ignorance
of the law; the redistribution remedy had only been granted for a specific and limited
purpose; the extension would increase the cost and time spent on litigation; and it would
create uncertainty. Those in favour of the extensi on said that it would prevent women
from “contracting themselves into poverty” and would ensure a balance of power.
These competing arguments are currently being considered by the SALRC. They are
said to “ [touch] deep on public and private issues”. It i s a complex terrain where
Parliament must be allowed to take the lead.

The GAA
[96] The GAA submits that the before/after differentiation is rational. The
redistribution remedy was introduced for a limited purpose – to alleviate the plight of
women who never had the choice to marry according to the accrual regime and whose

77 The name of the Commission was changed from the South African Law Commission to the South African Law
Reform Commission with effect from 17 January 2003.
ROGERS J
48
only way of escaping the husband’s marital power was by way of an antenuptial contract
excluding community of property. The remedy w ill fall into disuse over time as the
number of old ANC marriages dwindle.

[97] As to discrimination, the GAA disputes that the differentiation between spouses
in new ANC marriages and Muslim marriages is differentiation based on religion. This
Court in Women’s Legal Centre Trust could only remedy the harm suffered by wives in
Muslim marriages by taking advantage of the existing statutory remedy in section 7(3).
The Court was not legislating. The GAA also disputes that the differentiation between
spouses in new ANC marriages on the one hand, and customary marriages, homeland
marriages and BAA marriages on the other, is differentiation based o n race or culture.
The position of the latter class of spouses is much the same as that of spouses in old
ANC marriages. Even if there is discrimination on the basis of religion, race or culture,
it is fair.

[98] While allowing the redistribution remedy for old ANC marriages is
constitutionally justified, to extend it to new ANC marriages would, the GAA argues,
be an unjustifiable arbitrary deprivation of property infringing section 25(1) of the
Constitution. Section 7(3) is wide enough to include assets acquired by a spouse before
the marriage, even though the claimant-spouse made no contribution to the acquisition
of those assets.

[99] The GAA submits that extending the redistribution remedy will result in
uncertainty in the law of contract, which is inimical to the rule of law. The GAA, citing
Beadica,78 submits that the principle that contracts must be honoured gives effect to the
“central constitutional values of freedom and dignity”. The GAA also references the
statement by Cameron JA in Brisley79 that contractual autonomy is part of freedom and
informs the constitutional value of dignity. The GAA submits that no evidence has been

78 Beadica 231 CC v Trustees for the Time Being of the Oregon Trust [2020] ZACC 13; 2020 (5) SA 247 (CC);
2020 (9) BCLR 1098 (CC) at para 83 (Beadica).
79 Brisley v Drotsky [2002] ZASCA 35; 2002 (4) SA 1 (SCA); 2002 (12) BCLR 1229 (SCA) at para 93.
ROGERS J
49
adduced to show that women are generally in a weaker bargaining position than men
when getting married, adding that such an argument also ignores the position of same-
sex spouses. At any rate, according to the GAA, the argument based on weaker
bargaining position is not true for all women. A woman who finds herself in an
imprudent community or accrual marriage has no remedy to eva de its consequences.
Why should it be different in an imprudent ANC marriage? Existing contractual
principles, including those based on public policy, are a sufficient safeguard.

[100] The GAA criticises the applicant for failing to address the position of cr editors,
which was a concern raised with the SALRC by the Clearing Bankers Association of
South Africa. Section 21 of the MPA requires notice to creditors when spouses change
their matrimonial property regime, which reflects the lawmaker’s appreciation of the
impact which a change of property regime can have on creditors. When lending to
spouses in new ANC marriages, creditors w ere entitled to rely on the complete
economic separation of the spouses.

[101] Finally, the GAA submits that, if the declaration of in validity is confirmed, it
should not apply to marriages entered into before the date of the order.

Section 9 analysis
Differentiation
[102] The High Court identified the relevant differentiation as being the date
differentiation between old and new ANC marriages. The applicant, on the other hand,
sets up multiple differentiations: spouses in new ANC marriages on the one hand, and
spouses in old ANC marriages, BAA marriages, homeland marriages, customary
marriages and Muslim marriages on the other.

[103] All these differentiations exist, but what lies at the ir heart is not the date of the
marriages or the legal or religious systems under which they were concluded as such ,
but the presence or absence of the accru al regime as the default regime for marriages
ROGERS J
50
out of community of property . The default accrual regime did not exist for old ANC
marriages, which was the first class of marriage to be accorded the redistribution
remedy. BAA marriages, added in 1988, were, by default, out of community of property
and without the accrual system. They thus stood on the same footing as old ANC
marriages. The same is true of homeland marriages , which was the third class of
marriage added to section 7(3). I n the case of Musl im marriages, section 7(3) is
currently made applicable by virtue of this Court’s order in Women’s Legal Centre Trust
rather than by an enactment of Parliament. Although this Court did not explain its
thinking, section 7(3) must have been made applicable on the basis that Muslim
marriages involve no form of community of property or accrual. 80 The only class of
marriage which may not fit this pattern are customary marriages. If that is so, there may
be particular reasons to justify a different regime, as appears from this Court’s judgment
in Gumede.81

Rational relationship to legitimate government purpose
[104] With the exception of customary marriages, the purpose of the differentiation is
the one I identified earlier. The lawmaker made the redistribution rem edy available to
those spouses who got married out of community of property under a marital regime
where accrual was not the default regime . The lawmaker’s thinking was that if the
accrual regime was applicable by default but the spouses chose to exclude it, the
redistribution remedy should not be available . In general, the legislative philosophy
was that parties should be bound by their choices. The uncertainties inherent in a
judicial remedy should be confined to cases of complete economic separation w here
there was no choice to adopt or exclude the accrual system.


80 See the High Court's judgment in that matter, Women’s Legal Centre Trust v President of the Republic of South
Africa; Faro v Bingham N.O.; Esau v Esau [2018] ZAWCHC 109; 2018 (6) SA 598 (WCC); [2018] 4 All SA 551
WCC) at para 222: “It seems to be common cause that Islamic law does not recognise the concept of communal
property, and division of property.” See also Daniels v Campbell N.O. [2003] ZAWCHC 25; [2003] JOL 11190
(C); [2003] 3 All SA 139 (C ) at para 59 and Breslaw “Muslim spouses: Are they ‘Equally’ Married?” 2013
(December) De Rebus 30.
81 Gumede above n 55 at paras 42-4.
ROGERS J
51
[105] In principle, a government purpose of respecting and enforcing spousal choice is
legitimate. The principle that contracts must be honoured is consistent with
constitutional values. In Barkhuizen,82 Ngcobo J, writing for the majority, said:

“Pacta sunt servanda is a profoundly moral principle, on which the coherence of any
society relies. It is also a universally recognised legal principle. But, the general rule
that agreements must be honoured cannot apply to immoral agreements which violate
public policy. As indicated above, courts have recognised this and our Constitution
re-enforces it. Furthermore, the application of pacta sunt servand a often raises the
question whether a purported agreement or pact is indeed a real one, in other words
whether true consensus was reached. Therefore the relevance of power imbalances
between contracting parties and the question whether true consensus coul d for that
matter ever be reached, have often been emphasised.”83

[106] In Beadica,84 Theron J in her majority judgment referenced the above
statement.85 She also said:

“The public policy imperative to enforce contractual obligations that have been
voluntarily undertaken recognises the autonomy of the contracting parties and, in so
doing, gives effect to the central constitutional values of freedom and dignity. This
imperative provides the requisite legal certainty to allow persons to arrange their affairs
in reliance on the undertakings of the other parties to a contract, and to coordinate their
conduct for their mutual benefit.”86

[107] While there may be much to be said for a matrimonial property system in terms
of which the division of property upon divorce depends on a judicial determination of
what is fair, and in which an antenuptial contract is at most a non-binding factor among
many other circumstances, the rationality hurdle imposed by section 9(1) cannot be used

82 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC).
83 Id at para 87.
84 Beadica above n 78.
85 Id at para 35.
86 Id at para 92.
ROGERS J
52
by courts to impose their preferences. Holding spouses to their contractual choices is
not an illegitimate government purpose. In the language of Prinsloo,87 it is “a defensible
vision of the public good” , even if it is not the only or the best vision. The lawmaker
could legitimately take into account that there are threshold requirements for contractual
capacity; there are contractual remedies if a contract is concluded as a result of mistake,
misrepresentation, duress or undue influence or where its enforcement would be
contrary to public policy; and the right to maintenance would shield a former spouse in
a new ANC marriage from destitution.

[108] South Africa still has a matrimonial property system in which agreement and
choice are central. Subject to ordinary contractual remedies, the exclusion of
community of property by way of an antenuptial contract or the adoption of the accrual
regime through its non-exclusion in the antenuptial contract are final choices. 88 The
same is true of promises made in an antenuptial contract for giving gifts and the li ke.
Even in the case of old ANC marriages, section 7(3)(a) confines the redistribution
remedy to cases where the antenuptial contract excludes community of property,
community of profit and loss and accrual sharing “in any form”. This impl ies that if
some allowance is made in the antenuptial contract for community or accrual, even
though it falls short of a full community or full accrual regime, the parties are bound by
their choice. Although, as the CGE has pointed out in its submissions, there are
democratic countries which allow significant judicial interference in matrimonial

87 Prinsloo above n 30 at para 25.
88 Although section 9 of the Divorce Act has codified the common law jurisdiction which allows a divorce court
to make an order of forfeiture of benefits in the case of community marriages and although section 9 of the MPA
has extended this jurisdiction to the case of accrual marriages, the circumstances in which this can occur are quite
different from those at play in a redistribution remedy. A court may make a forfeiture claim if it is satisfied that,
but for a forfeiture order, the one party would be unduly benefited in relation to the other. The court must take
into account the duration of the marriage, the circumstances which gave rise to the breakdown “and any substantial
misconduct on the part of either of the parties”. In marriages which have lasted for a lengthy time, substantial
misconduct will usually be the important consideration. Forfeiture is of no advantage to an economically
disadvantaged spouse who contributed less to the joint estate or to the total accrual than the other spouse. It is not
a mechanism for redistributing assets on the basis of what is fair and just: see Heaton “The Proprietary
Consequences of Marriage” in Hea ton (ed) The Law of Divorce and Dissolution of Life Partnerships in South
Africa (Juta & Co Ltd, Cape Town 2014) at 91-4 and Church “Proprietary Consequences of Marriage” in LAWSA
2 ed (2006) vol 16 at para 90.
ROGERS J
53
property choices, it is equally true that there are democratic countries where the scope
for judicial interference is more limited.89

[109] It may be justifiable to treat spouses on the threshold of marriage differently from
other contracting parties , but it cannot be said to be rationally imperative to do so. I
accept that an antenuptial contract is not an ordinary commercial transaction. There
may be emotional or cultural reasons wh y prospective spouses do not press for their
own commercial advantage in antenuptial contracts. The applicant’s expert, Ms Ancer,
adds that there are biological and physiological factors that may cause people who are
strongly in love or still young to mak e unwise contractual choices. But is it irrational
for the lawmaker to follow a policy which encourages prospective spouses to be level-
headed when making important decisions about their long-term futures?


89 In Canada, the grounds of interference in Ontario and New Brunswick appear to be very limited: see n 70 above.
In Australia, judicial interference is limited to cases where one of the spouses was guilty of “unconscionable”
conduct at the time the antenuptial contract was concluded. Hardship when the contract is enforced at divorce is
not a statutory ground of interference. Antenuptial contracts are governed by sections 90B to 90K of the Family
Law Act, 1975. “Unconscionable” conduct in the statutory sense might often overlap with conduct which the
common law would address by defences such as undue influence, duress, misrepresentation and non -disclosure.
See, for example, Thorne v Kennedy [2017] HCA 49; (2017) 350 ALR 1, where the majority found that the
antenuptial contract was vitiated both by common law undue influence and by statutory unconscionable conduct
(at paras 54-62 and 63-5), while Nettle J thought that the case might have been capable of bei ng disposed of on
the basis of duress (at paras 70-3).
In the United States of America, a number of states likewise focus only on unconscionable conduct at the time the
antenuptial contract is concluded. The Uniform Premarital and Marital Agreements Act, 2012, drafted by the
National Conference of Commissioners on Uniform State Laws, has been adopted with modifications by many
states. Section 9 deals with the enforcement of premarital agreements. Section 9(f)(i) empowers a court to refuse
to enforce term s of a premarital agreement if, in the context of the agreement taken as a whole, the term was
unconscionable at the time of signing. There is an optional section 9(f)(2), which some states have adopted,
allowing the court also to do so if enforcement would result in substantial hardship for a party because of a material
change in circumstances arising after the agreement was signed. See Debele and Rhode “Prenuptial Agreements
in the United States", available on the website of the International Academy of Family Lawyers:
https://www.iafl.com/media/1169/prenuptial_agreements_in_the_us.pdf.
In Australia and the United States, the enforceability of prenuptial agreements depends on whether the spouse
seeking to escape its terms obtained or had access to inde pendent legal advice. In South Africa, where an
antenuptial contract has to be executed before a notary, it is the notary’s duty to make sure that the prospective
spouses fully understand the proprietary consequences of marriage and how these consequences can be changed
by contract: Lowe et al Elliott: The South African Notary 6 ed (Juta & Co Ltd, Cape Town 1987) at 46 and 61-2.
In continental Europe, antenuptial contracts involving the waiver of spousal support are generally looked at
askance. In Germany , antenuptial contracts are dealt with in accordance with ordinary contractual principles,
although the German courts appear to have developed those principles so as to provide some measure of protection
for an economically disadvantaged spouse.
ROGERS J
54
[110] Different views have been expressed in this Cour t on the significance to be
attached to choice in the domestic sphere, as is apparent from the majority and minority
judgments in Volks N.O.90 and Bwanya.91 Those cases were concerned with choice in
the context of justifying section 9(3) discrimination on the basis of marital status. At
this stage I am concerned with a rationality enquiry under section 9(1). What the
judgments in Volks N.O. and Bwanya show is that Judges, even those in the apex Court,
may hold different views as to the s ignificance to be attached to domestic choices. It
would be difficult, in those circumstances, to conclude that differentiation based on the
choices available to spouses is not a defensible vision of the public good.

[111] In the context of section 9(3), the H igh Court attach ed significance to the fact
that spouses in old ANC marriages had the choice, during the window-period, to adopt
the accrual regime. Since the point may be relevant to the section 9(1) analysis, I deal
with it here. The High Court seems to have equated the conversion choice available to
spouses in old ANC marriages with the choice available to spouses in new marriages to
exclude or retain the accrual system. There are, however, two important differences:
(a) First, prospective spouses in new marriages by antenuptial contract will
be concluding a contract and appearing before a notary who will advise
them of the default position and of their right to exclude the accrual
system. Spouses in old ANC marriages would already have concluded an
antenuptial contract by the time the MPA came into force. They may
have been unaware that the MPA gave them a window -period during
which they could adopt the accrual system.
(b) Second, and perhaps more importantly, in the case of new marriages both
prospective spouse s have an individual pre -marital choice. If the one
prospective spouse sa ys she want s the accrual system, she c annot be
forced to get married with out it. Her wish to have the accrual system
might at that stage be acceptable to her futu re husband. He might even

90 Volks N.O. above n 36.
91 Bwanya above n 23.
ROGERS J
55
feel sheepish to say that he is not willing to share the fruits of the pending
marriage. Things were quite different for spouses in old ANC marriages
when the MPA came into force on 1 November 1984 . Unless they both
agreed to adopt the accrual system, their ANC would continue to apply .
By that stage, the relationship might have been less happy than it once
was. Any leverage which one party might have had before marriage no
longer existed.

[112] The applicant’s rationality argument on choice is different. The applicant
contends that prospective spouses to old ANC marriages also had a choice before
marrying, namely whether to marry in or out of community of property. Despite the
fact that they chose to marry out of community of prop erty, the lawmaker gave them a
redistribution remedy. Again, I do not think the comparison is just. The statistical
evidence in 1984 showed that most marriages out of community of property were
concluded on the basis of a standard antenuptial contract which excluded community of
property, community of profit and loss and the marital power. It was an all-or-nothing
choice. There was no realistic regime for merely sharing in the financial fruits of the
marriage, while keeping other property separate and excluding marital power. The
accrual regime was introduced to give spouses a legally certain and predictable middle
course. The redistribution remedy did not compensate spouses in old ANC marria ges
for the exclusion of community of property; it compensated them for the absence of
right to share in marital accrual.

[113] I thus conclude that the differentiation in the before/after issue does not infringe
section 9(1) of the Constitution.

Unfair discrimination
Old and new ANC marriages
[114] I shall start the unfair discrimination analysis by considering the differentiation
between spouses in old and new ANC marriages. The High Court did not find that the
ROGERS J
56
differentiation was based on a ground listed in se ction 9(3) but said that the list is not
exhaustive. My difficulty with the High Court’s subsequent reasoning, however, is that
the High Court did not find that the differentiation was based on human attributes or
characteristics. The sole basis of diffe rentiation, according to the High Court, was the
date of marriage. That, however, is not an attribute or characteristic of the kind
contemplated in Harksen. The non-availability of a redistribution remedy might impair
a divorcing spouse’s dignity by not financially rewarding her contribution to the
marriage and by leaving her dependent on her former spouse for maintenance.
However, differential treatment may have consequences of this kind without being
based on human attributes and characteristics.

[115] The applicant argues that the basis of differentiation is indeed on listed grounds:
gender and sex.92 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 redistribution
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 day-care of extended family or an employee. And as the High Court 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, i n the case of Judges, with the matrimonial cases that
serve before them.

[117] But is the differential treatment based on gender? Section 9(3) provides that the
state may not unfairly discriminate, “directly or indirectly”, against any person on one
or more of the listed grounds. In Walker,93 this Court stated that the inclusion of both

92 In what follows, I shall refer only to gender, because in the context of the present case sex does not seem to add
a further dimension to the analysis.
93 City Council of Pretoria v Walker [1998] ZACC 1; 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC).
ROGERS J
57
direct and indirect discrimination “evinces a concern for the consequences rather than
the form of conduct” and “recognises that conduct which may appear to be neutral and
non-discriminatory may nonetheless result in discrimination”. 94 On this basis, the
municipality in Walker was found to have been guilty of indirect discrimination on the
basis of race by charging its residents differentially for electricity: residents of “ old
Pretoria” were charged for actual consumption wh ile residents of Mamelodi and
Atteridgeville were charged a flat rate. Although the direct basis of differentiation was
geographic (not a listed ground), indirectly the differentiation was based on race,
because the majority of residents of old Pretoria were white and the majority of residents
in Mamelodi and Atteridgeville were black.

[118] Indirect discrimination also featured in Mahlangu.95 That case concerned the
definition of “employee” in the Compensatio n for Occupational Injuries and Diseases
Act.96 The definition listed a number of express inclusions and exclusions. One of the
exclusions was “a domestic employee employed as such in a private household”. This
Court found that the differentiation in thi s respect was indirect discrimination on the
basis of race , sex and gender . Although superficially the differentiation was merely
between types of employees (not a listed ground), there was indirect discrimination on
the basis of race, sex and gender, because domestic workers in South Africa were
overwhelmingly black women.97

[119] Most recently, this Court in VJV98 used indirect discrimination as one of the
grounds for declaring section 40 of the Children’s Act 99 constitutionally invalid. This
provision allows s pouses to have parental rights and responsibilities where a child is
born through artificial fertilisation by using the gamete or gametes of one of the spouses.

94 Id at para 31.
95 Mahlangu v Minister of Labour [2020] ZACC 24; 2021 (2) SA 54 (CC); 2021 (1) BCLR 1 (CC) (Mahlangu).
96 130 of 1993.
97 Mahlangu above n 95 at paras 73 and 92-3.
98 VJV above n 26.
99 38 of 2005.
ROGERS J
58
On its face, the section included all heterosexual and same -sex spouses and excluded
all heter osexual and same -sex permanent life partners, so that there was no direct
discrimination on the basis of sexual orientation. In reality, however, only the relatively
small percentage of heterosexual permanent life partners suffering from infertility
would need to have recourse to artificial fertilisation if they wanted their own biological
child whereas all same -sex permanent life partners would have to use artificial
fertilisation for that purpose. There was thus indirect discrimination on the basis of
sexual orientation.100

[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. These 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
section 7(3) falls more heavily on women than men.

[121] Prof Bonthuys and Dr Coetzee in their joint report make some trenchant points
in this regard. They say that there is a large body of scholarship showing that apartheid
not only institutionalised racial discrimination but also hinged on and entrenched gender
inequality.101 A 2016 study reported that South African women are significantly more
likely to be “multidimensionally poor” (that is, lacking adequate access to nutrition,
health, education and basic services) than men, 102 with this burden of poverty falling
more heavily on black women than white women. 103 Women in South Africa are
typically less securely employed than men, and employed women are concentrated in

100 VJV above n 36 at paras 48-59.
101 Seidman “Gendered Citizenship: South Africa’s Democratic Transition and the Construction of a Gendered
State” (1999) 13 Gender and Society 287 at 291. (The citations here and in the other footnotes to my discussion
of the joint report by Prof Bonthuys and Dr Coetzee are those given by them in their expert report.)
102 Rogan “Gender and Multidimensional Poverty in South Africa: Applying the Global Multidimensional Poverty
Index (MPI)” (2016) 126 Social Indicators Research 987 at 995.
103 Burger, Von Fintel and Van der Watt “Household Social Mobility for Paid Domestic Workers and Other Low-
Skilled Women Employed in South Africa” (2018) Feminist Economics 1 at 2.
ROGERS J
59
sectors which are typically less advantageous when it comes to remuneration and terms
of employment – retail, catering and accommodation. South Africa has among the
highest mean and median gender income gaps,104 and the disparity increases with age.105

[122] The result, say these experts, is that women typically enter into marriage poorer
and more dependent than men, and therefore have less bargaining power. During the
marriage, cultural understandings and practices often exploit and deepen the
inequalities by supporting an unequal division of care and household labour. Women
in South Africa are least likely to be employed if they are married and most likely to be
employed if they are divorced or have never been married. 106 The devaluation of
women’s unpaid domestic work affects public perceptions about the kinds of work for
which they are suited and the low econ omic value placed on such work. This
contributes to “vertical segregation of the workplace, in which women tend to occupy
certain low -paying jobs which are associated with unpaid household labour”. The
effects of gender inequality in marriage are exacerb ated by high levels of physical,
sexual and other forms of violence which characterise intimate relationships. Women
with no hope of attaining a share of marital property on divorce may be trapped in
violent relationships.

[123] Prof Bonthuys and Dr Coetzee conclude:

“The lack of a mechanism whereby the courts can ensure an equitable division of assets
after the dissolution of marriage on account of one spouse’s informal and
unacknowledged contribution to the other’s estate means that the legal rules fail to

104 “Mean” refers to the average wages for women and men, while “median” refers to the middle of female and
male pay distributions. According to a 2018 -19 report, the mean and median female wages were 20% and 26%
respectively lower than those of men. The gap is higher when the comparison is limited to monthly wages –
28.6% and 30.8%. When the remuneration of men and women with the same educational qualifications,
experience and responsibilities are compared (a so-called “factor-weighted” comparison), South Africa’s pay gap
remains among the highest of high middle income countries: International Labour Organisation Global Wage
Report 2018/19 at pages xiv and 6 and figures 3.1, 13-15, 19-22 and 35.
105 While mean male earnings increase in each age group, mean female wages remain stagnant and even decrease
with age: Statistics South Africa Labour Market Dynamics in South Africa, 2017 table 4.12. (The joint experts
refer to figure 4.12, but that seems to be an error.)
106 Janse van Rensburg, Claassen and Fourie “The Relationship between Marital Status and Employment in South
Africa” (2019) 12 Journal of Economic and Financial Sciences 1 at 5 and table 6.
ROGERS J
60
correct the exploitation of women’s care and domestic labour, to the direct and
structural advantage of men.
…
[M]en and women are often not similarly situated when marriages end, with women
typically being financially worse off than their male partners. When the law binds
couples to the terms of their marriage contracts without offering courts the discretion
to make adjustments when it is just and equitable to do so, it is typically women who
are unfairly disadvantaged. In such cases the law works to mai ntain a system that
devalues care labour and keeps women financially dependent on, and in the service of,
their husbands. At the same time, the law protects the interests of (mostly male)
wealthier spouses, by not requiring them to share with their spouses.”107

[124] Sometimes indirect discrimination may take the form of a measure which lays
down different rules for different classes of persons ( Walker). Or the measure may
expressly exclude a particular class ( Mahlangu). Or the measure, by being under -
inclusive, carries with it an implicit exclusion (VJV). Section 7(3) can be said to be of
the latter class – by conferring the redistribution remedy on spouses in old ANC
marriages, the lawmaker has implicitly excluded spouses in new ANC marriages.

[125] This Court’s judgment in Gumede is instructive, even though the Court did not
expressly invoke indirect discrimination. Section 7(1) and (2) of the Recognition Act
in its original form provided that the proprietary consequences of a customary marriage
entered into before the commencement of the Act (15 November 2000) continued to be
governed by customary law , whereas a customary marriage entered into after the
commencement was in community of property an d of profit and loss unless those
consequences were specifically excluded in an antenuptial contract. The Gumedes
entered into a customary marriage many years before the commencement date. In terms
of the applicable customary law as codified in the Natal Code of Zulu Law ,108 the
husband was the head of the family and the owner of all family property and the wife,

107 Joint report by Prof Bonthuys and Dr Coetzee at paras 3.25 and 3.28.
108 The Natal Code of Zulu Law published in Proc R151 of 1987 , GG No 10966, in particular sections 20 and 22
thereof, given the force of law by section 20 of the KwaZulu Act on the Code of Zulu Law 16 of 1985.
ROGERS J
61
upon dissolution, had no claim to any family property. This Court found that the
combined effect of section 7(1) and (2) and the Natal Code violated section 9(3):

“These impugned provisions are self -evidently discriminatory on at least one listed
ground: gender. The provisions are discriminatory as between wife and husband. Only
women in a customary marriage are subject to these unequal proprietary consequences.
This discrimination is on a listed ground and is therefore unfair unless it is established
that it is fair. And within the class of women married under customary law, the
legislation differentiates between a woman who is a party to an ‘old’ or pre-recognition
customary marriage as against a woman who is a party to a ‘new’ or post -recognition
customary marriage. This differentiation is unfairly discriminatory.”

[126] The first part of the above passage refers to the discrimination brought about by
the Natal Code. The second part deals with the distinction drawn in section 7(1) and
(2) of the Recognition Act. Although, viewed in isolation, the differentiation drawn in
the Recognition Act was between two classes of women, and was thus not itse lf – so it
seems to me – discrimination based on gender, it was rendered such when account as
taken of the unequal treatment between men and women in the Natal Code.

[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 practical effect in the case of new ANC marriages
is to prejudice women and benefit men disproportionately. Unlike Gumede, where this
impact was brought abo ut by a second piece of legislation (the Natal Code), here the
impact is brought about, as it was in Mahlangu, by social realities.

[128] I thus conclude that section 7(3) indirectly discriminates against spouses on
grounds of gender. This is presumptively unfair, so the next question is whether the
presumption has been rebutted. The Minister, as the state’s representative, did not put
up an affirmative case for fairness, but we must still consider the question, having regard
to what is known about the purpose of the differentiation and the submissions advanced
by the GAA.
ROGERS J
62

[129] It is not in dispute that when a new ANC marriage terminates a woman may
suffer the same hardship th at moved the lawmaker to introduce the redistribution
remedy for spouses in old ANC marriages. The facts of the present case are not relevant
to the objective validity of section 7(3) but they are likely not to be atypical.
Mr and Mrs G were 25 and 21 re spectively when they signed a standard antenuptial
contract excluding the accrual system. According to Mrs G, she was “young, naïve and
in love”. She also felt that unless she signed it the marriage would not go ahead. Some
29 years later, she instituted divorce proceedings. In the intervening three decades she
had, according to her, contributed in manifold ways to make her husband a wealthy and
successful farmer. Without a redistribution remedy, she is – like many wives in old
ANC marriages would have been but for section 7(3) – confined to claiming
maintenance.

[130] The primary focus, in assessing whether discrimination is unfair, is its impact on
those discriminated against. 109 The hardship for women in new ANC marriages on
divorce can be very great. Wom en 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 in her husband’s estate. In its
1982 report, the SALC said that the objection to a system of complete economic
separation w as 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 assistance. It 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.

[131] If differentiation on a listed ground is aimed at achieving a “worthy and
important societal goal” rather than impairing the interests of the complainant -class, a

109 Harksen above n 14 at para 54(b)(ii).
ROGERS J
63
court might find that the discrimination is fair. 110 The lawmaker’s primary reason for
withholding a redistribution remedy from spouses in new ANC marriages is the choice
that was open to them to marry with the accrual system . Although I have concluded
that the valuing of choice may serve as a legitimate government object for purposes of
section 9(1), it is not necessarily sufficient to render discrimination on the basis of
gender fair. For several reasons, the lawmaker’s emphasis on choice cannot be decisive
in the fairness enquiry.

[132] First, there are degrees of voluntariness when it comes to contractual choice. 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 marriage 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 concluded an antenuptial contract excluding the accrual regime could be
taken into account. The weight this factor should receive would depend on the
circumstances.


110 Id at para 52(b).
ROGERS J
64
[134] Other jurisdictions have adopted this approach. In England, the leading case is
Radmacher,111 where the range of rele vant circumstances was discussed at length,112
the fundamental test being encapsulated thus:

“The court should give effect to a nuptial agreement that is freely entered into by each
party with a full appreciation of its implications unless in the circumstances prevailing
it would not be fair to hold the parties to their agreement”.113

[135] In Canada, as the CGE has pointed out, judicial intervention in domestic
contracts is allowed in differing circumstances. The greatest freedom of intervention
appears to be in British Columbia. Hartshorne,114 which was concerned with the British
Columbia legislation, reflects how various factors are taken into account in assessing
the weight to be attached to a marriage agreement. The majority concluded its judgment
as follows:

“Once an agreement has been reached, albeit a marriage agreement, the parties thereto
are expected to fulfil the obligations that they have undertaken. A party cannot simply
later state that he or she did not intend to live up to his or her end of the bargain. It is
true that, in some cases, agreements that appear to be fair at the time of execution may
become unfair at the time of the triggering event, depending on how the lives of the
parties have unfolded. It is also clear that the [ Family Relations Act] permits a court,
upon application, to find that an agreement or the statutory regime is unfair and to re -
apportion the assets. However, in a framework within which private parties are
permitted to take personal responsibility for their fina ncial well -being upon the
dissolution of marriage, courts should be reluctant to second-guess their initiative and
arrangement, particularly where independent legal advice has been obtained. They
should not conclude that unfairness is proven simply by dem onstrating that the
marriage agreement deviates from the statutory matrimonial property regime. Fairness
must take into account what was within the realistic contemplation of the parties, what

111 Radmacher above n 69.
112 Id at paras 68-83.
113 Id at para 75.
114 Hartshorne above n 70.
ROGERS J
65
attention they gave to changes in circumstances or unrealised implications, then what
are their true circumstances, and whether the discrepancy is such, given the section 65
factors, that a different apportionment should be made.”115

[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 plan e militate against accepting, as fair, a form 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 contributio n and other relevant
factors, factors 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 in 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 question cannot be plausibly answered. The discrimination is unfair.

Section 36 of the Constitution – justification
[138] The burden rests on the state to justify the unfair discrimination which I have
found to exist. This may re quire not only legal argument but the adducing of factual
material, data and policy considerations.116 Once again, the Minister has not set out to
discharge this burden, save for pointing to the policy underlying the differentiation, in

115 Id at para 67. The factors listed in section 65 of the British Columbia legislation are: the duration of the
marriage; the duration of the period during which the spouses have lived separate and apart; the date when property
was acquired or disposed of; the extent to which property was acquired by one spouse through inheritance or gift;
the needs of each spouse to become or remain economically independent and self -sufficient; or any other
circumstances relating to the acquisition, preservation, maintenanc e, improvement or use of the property or the
capacity or liabilities of a spouse.
116 Moise v Greater Germiston Transitional Local Council [2001] ZACC 21; 2001 (4) SA 491 (CC); 2001 (8)
BCLR 765 (CC) at para 19. See also Gumede above n 55 at para 37.

ROGERS J
66
other words the choice argument based on the availability of the accrual regime as from
1 November 1984. I have already dealt with that in the context of the fairness enquiry,
and it fails as a ground of justification for the same reason.

[139] I will touch briefly on other justifications mentioned in the submissions. The
argument that a redistribution remedy for new ANC marriages would amount to an
arbitrary deprivation of property contrary to section 25(1) of the Constitution is without
merit. It is anything but arbitrary to recognise, by way of a financial remedy, the
contribution which one spouse has made to the increase of the other spouse’s estate.
The requirements that the award should be just and equitable, that the claimant should
in fact have contributed directly or indirectly to the maintenance or increase in the other
spouse’s estate, and that the award should take into account the factors specified in
section 7(5) mean that the court is not granted an arbitrary discretion.

[140] To the extent that the remedy can be re garded as creating uncertainty, this has
already been tolerated by the lawmaker in respect of old ANC marriages, BAA
marriages, homeland marriages and customary marriages and by this Court in respect
of Muslim marriages. Just and equitable remedies, which carry with them an inherent
element of uncertainty, are not unusual in modern legislation.

[141] The argument that existing contractual remedies suffice is not a justification for
depriving only one class of spouses the more efficacious redistribution remedy. It is
not easy to discharge the burden of proving that the conclusion or enforcement of a
contract was or would be contrary to public policy. There is no case of which I am
aware in which a standard antenuptial contract has been found to offend public po licy.
Unlike a challenge based on public policy, the redistribution remedy is explicitly
focused on recognising a spouse’s contribution to the maintenance or increase in the
other spouse’s estate. It is unnecessary, in the case of a redistribution remedy , to find
that the conclusion or enforcement of the antenuptial contract would offend public
policy. Indeed, the terms of the antenuptial contract, even in an old ANC marriage, may
ROGERS J
67
be a relevant factor in assessing a redistribution claim. 117 Public policy, while a
necessary tool in the law of contract, is a blunt instrument in terms of which the
impugned contract either stands or falls. And if courts began to impeach antenuptial
contracts on the basis of public policy, the judicial assessment of public policy would,
as with the redistribution remedy, bring with it an element of uncertainty; public policy
cannot be said to be a more predictable basis of intervention t han the redistribution
remedy.

[142] As to the interests of creditors, this has not deterred the lawmaker or this Court
from allowing a redistribution remedy for the other classes of marriages I have
mentioned. In terms of section 7(5)(a), a court must take into account the existing
means and obligations of the parties. Th is includes the obligations which the spouse
against whom the claim is made has towards his or her creditors.

[143] I thus conclude that the differentiation between old and new ANC marriages
constitutes unjustifiable indirect discrimination on the grounds of gender.

New ANC marriages and other classes of marriages
[144] The conclusion I have reached thus far makes it unnecessary to spend time on
the further grounds of discrimination alleged to exist in relation to other classes of
marriage. All of them appear to me to boil down to the same indirect discrimination
based on gender, because in all those other classes of marriage women have the benefit
of the redistribution remedy whereas women in new ANC marriages are
disproportionately prejudiced as against men by the absence of the same remedy.

[145] I am doubtful whether race, religion, culture or marital status are implicated as
direct or indirect grounds of discrimination in these other cases. Although, for example,
the spouses in BAA marriages would be black persons, the lawmaker’s r eason for

117 Among other things, section 7(5)(b) requires the court to take into account any donation owing and enforceable
in terms of the antenuptial contract.
ROGERS J
68
granting them the redistribution remedy and withholding it from new ANC marriages
was not the race of the spouses but the absence or availability of the accrual regime.
Many black persons are spouses in new ANC marriages. If there is indirect
discrimination, it is that black wives in new ANC marriages are disproportionately
prejudiced as against black husbands by the absence of the redistribution remedy. This
is indirect discrimination on the basis of gender rather than race.

[146] Customary marriages, as I have said, may be a special category, having regard
to the wide interpretation given by this Court in Gumede to section 8(4)(a) of the
Recognition Act. This Court gave particular reasons why a wider approach might be
appropriate for customary mar riages. This is not the occasion to assess whether the
withholding of that wider approach for other types of marriage offends section 9(1) or
(3) of the Constitution.

Remedy
[147] As in CCT 364/21, it would be appropriate to suspend the declaration of
invalidity for 24 months with an interim severance of the offending differentiation in
section 7(3)(a) so as to grant immediate effective relief. And because of the remedy to
be granted in CCT 364/21, the interim relief will need to cover dissolution by both
divorce and death. For the avoidance of doubt, I should mention that section 7(3)(a) is
the only class of marriage where the date differentiation needs to be eliminated. In the
case of section 7 (3)(b) and (c), there is no “after” scenario : BAA and homeland
marriages ceased to be possible when the relevant legislation governing such marriages
was repealed. As in CCT 364/21, the Minister should pay the applicant’s costs in this
Court in CCT 158/22.

[148] It would not be appropriate for this Court to offer a view on the CGE’s contention
that subsections 7(3) to (6) should provide clearer guidance and that equal sharing
should be the starting point. The CGE will be at liberty to press its position when
Parliament ponders its response to this judgment.

ROGERS J
69
Order
[149] The following order is made in Case CCT 364/21:
1. The High Court’s order of constitutional invalidity is confirmed.
2. Subsection 7(3) of the Divorce Act 70 of 1979 is declared inconsistent with the
Constitution and invalid to the extent that it fails to include the dissolution of
marriage by death.
3. The declaration of invalidity is suspended for a period of 24 months from the
date of this order to enable Parliament to take steps to cure the constitutional
defects identified in this judgment.
4. Pending any remedial legislation as contemplated in paragraph 3 above, and
pursuant to this Court’s conclusions in the present case and in Case CCT 158/22
KG v Minister of Home Affairs and Others , which has been decided
simultaneously with the present case, the Matrimonial Property Act 88 of 1984
is to be read as including, as section 36A, the following provision:
“(1) Where a marriage out of community of property as contemplated in
paragraphs (a), (b) or (c) of subsectio n 7(3) of the Divorce Act, 1979
(Act 70 of 1979) is dissolved by the death of a party to the marriage, a
court may, subject mutatis mutandis to the provisions of subsections
7(4), (5) and (6) of the said Divorce Act, and on application by a
surviving party to the marriage or by the executor of the estate of a
deceased spouse to the marriage as the case may be (hereinafter
referred to as the claimant), and in the absence of agreement between
the claimant and the other spouse or the executor of the deceased estate
of the other spouse (hereinafter referred to as the respondent), order
that such assets, or such part of the assets, of the respondent as the court
may deem just, be transferred to the claimant.
(2) For purposes of subsection (1), paragraph (a) of subsection 7(3) is to
be read as excluding the following words: ‘before the commencement
of the Matrimonial Property Act, 1984’.”
5. The order in paragraph 4 shall have no effect on the validity of any acts
performed in respect of the administration of a deceased estate that has been
finally wound up by the date of this order and no claim as contemplated in
ROGERS J
70
paragraph 4 may be made by or against the executor of a deceased estate that has
been finally wound up by the date of this order.
6. The second respondent must pay the applicant’s costs in this Court, excluding
the costs of the appearance on 11 August 2022, such costs to include the costs of
two counsel.

[150] The following order is made in Case CCT 158/22:
1. The High Court’s order of constitutional invalidity is confirmed.
2. Paragraph (a) of subsection 7(3) of the Divorce Act 70 of 1979 (Divorce Act) is
declared inconsistent with the Constitu tion and invalid to the extent that it fails
to include marriages concluded on or after the commencement of the
Matrimonial Property Act 88 of 1984 (Matrimonial Property Act).
3. The declaration of invalidity is suspended for a period of 24 months from the
date of this order to enable Parliament to take steps to cure the constitutional
defects identified in this judgment.
4. Pending any remedial legislation as contemplated in paragraph 3 above,
paragraph (a) of subsection 7(3) of the Divorce Act is to be read as excluding the
words in strike-out text below:
“(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;”
5. The order in paragraph 4 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.
6. Pending any remedial legislation as contemplated in paragraph 3 above, and
pursuant to this Court’s conclusions in the present case and in Case CCT 364/21
EB (Born S) v ER (Born B) N.O. and Others , which has been decided
simultaneously with the present case, the Matrimonial Property Act is to be read
as including, as section 36A, the following provision:
“(1) Where a marriage out of community of property as contemplated in
paragraphs (a), (b) or (c) of subsection 7(3) of the Divorce Act, 1979
ROGERS J
71
(Act 70 of 1979) is dissolved by the death of a party to the marriage, a
court may, subject mutatis mutandis to the provisions of subsections
7(4), (5) and (6) of the said Divorce Act, and on application by a
surviving party to the marriage or by the execu tor of the estate of a
deceased spouse to the marriage as the case may be (hereinafter
referred to as the claimant), and in the absence of agreement between
the claimant and the other spouse or the executor of the deceased estate
of the other spouse (herei nafter referred to as the respondent), order
that such assets, or such part of the assets, of the respondent as the court
may deem just, be transferred to the claimant.
(2) For purposes of subsection (1), paragraph (a) of sub section 7(3) is to
be read as excluding the following words: ‘before the commencement
of the Matrimonial Property Act, 1984’.”
7. The order in paragraph 6 shall have no effect on the validity of any acts
performed in respect of the administration of a deceased estate that has been
finally wound up by the date of this order and no claim as contemplated in
paragraph 6 may be made by or against the executor of a deceased estate that has
been finally wound up by the date of this order.
8. The second respondent must pay the applicant’s costs in thi s Court, such costs
to include the costs of two counsel.



Case CCT 364/21

For the Applicant: R du Plessis SC, D Gianni and C Strydom
Instructed by Vogel Inc, Pretoria

For the Second Respondent: MPD Chabedi
Instructed by State Attorney, Pretoria

Case 158/22

For the Applicant: W Trengove SC and S Scott
Instructed by Clarks Attorneys ,
Johannesburg

For the Second Respondent: M Mphaga SC, D Mtsweni and
D Sekwakweng
Instructed by State Attorney, Pretoria

For the First Amicus Curiae: M Bishop and A Christians
Instructed by Legal Resources Centre,
Johannesburg

For the Second Amicus Curiae: LC Haupt SC, S Mentz, A Thompson and
SM Stadler
Instructed by Adams & Adams, Pretoria