About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2008
>>
[2008] ZACC 23
|
|
Gumede (born Shange) v President of the Republic of South Africa and Others (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC) ; 2009 (3) SA 152 (CC) (8 December 2008)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 50/08
[2008] ZACC 23
ELIZABETH GUMEDE (BORN SHANGE) Applicant
versus
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent
MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT Second
Respondent
PREMIER OF KWAZULU-NATAL Third Respondent
KWAZULU-NATAL MEC FOR TRADITIONAL AND LOCAL GOVERNMENT AFFAIRS Fourth Respondent
AMOS GUMEDE Fifth Respondent
MINISTER OF HOME AFFAIRS Sixth Respondent
WOMEN’S LEGAL CENTRE TRUST Amicus Curiae
Heard
on : 11 September 2008
Decided
on : 8 December 2008
JUDGMENT
MOSENEKE
DCJ:
Introduction
This
case concerns a claim of unfair discrimination on the grounds of
gender and race in relation to women who are married under
customary law as codified in the province of KwaZulu-Natal. It
brings into sharp focus the issues of ownership, including
access
to and control of family property by the affected women during and
upon dissolution of their customary marriages. At
one level, the
case underlines the stubborn persistence of patriarchy and
conversely, the vulnerability of many women during
and upon
termination of a customary marriage. At another level, the case
poses intricate questions about the relative space
occupied by
pluralist legal systems under the umbrella of one supreme law,
which lays down a common normative platform.
These
issues arise in proceedings under section 167(5)
1
of the Constitution in which Mrs Elizabeth Gumede, a spouse in a
customary marriage, seeks confirmation from this Court of
an order
of constitutional invalidity made in her favour by the High Court.
2
The High Court found that the impugned provisions offend the
equality protection afforded by sections 9(3) and (5) of the
Constitution because they unfairly discriminate on the grounds of
gender and race.
3
The
High Court declared the following legislative provisions that
regulate the proprietary consequences of a customary marriage
as
being inconsistent with the Constitution and invalid:
Section
7(1) of the Recognition of Customary Marriages Act (Recognition
Act).
4
It provides that the proprietary consequences of a customary
marriage entered into before the commencement of the Recognition
Act continue to be governed by customary law.
The
inclusion of the words “entered into after the commencement
of this Act” in section 7(2) of the Recognition
Act. The
inclusion provides that a customary marriage entered into after
the commencement of the Recognition Act is a marriage
in community
of property subject to a number of exceptions which are not, for
present purposes, relevant.
Section
20 of the KwaZulu Act on the Code of Zulu Law (KwaZulu Act).
5
It provides that the family head is the owner of and has control
over all family property in the family home.
Section
20 of the Natal Code of Zulu Law (Natal Code).
6
It provides that the family head is the owner of and has control
over all family property in the family home.
Section
22 of the Natal Code. It provides that “inmates” of a
kraal are in respect of all family matters under
the control of
and owe obedience to the family head.
Mr
Gumede did not join issue with his wife’s equality claim in
the High Court, nor has he done so in this Court.
7
However, certain members of government at the national and
provincial levels do resist the relief Mrs Gumede seeks. They
oppose the confirmation of the order of constitutional invalidity
and have appealed, as of right, to this Court against the
order of
the High Court.
8
They are the Minister of Home Affairs (the Minister) who is
charged with the responsibility of administering the impugned
national legislation, being the Recognition Act, and the
KwaZulu-Natal Member of the Executive Council for Traditional and
Local Government Affairs (the MEC) who, administers the provincial
legislation, being the KwaZulu Act and the Natal Code.
As a matter
of expedience, I refer to these parties as the government. The
grounds of appeal advanced by the government are
in substance the
same as the grounds relied upon by it to resist the confirmation of
the order of constitutional invalidity.
The notice of appeal was
filed three days out of time. The government has furnished an
adequate explanation of the delay
and I am satisfied that the delay
should be condoned.
The
Women’s Legal Centre Trust has been admitted as amicus
curiae. The amicus supports the confirmation of the order
of
constitutional invalidity and urges us to extend the terms of the
order to include polygamous marriages under customary
law.
The
facts
Before
I identify the issues to be resolved, it may be helpful to narrate
the background facts. On 29 May 1968, Mrs Gumede
and her husband
entered into a customary marriage, the only marriage to which her
husband was a party. Both Mr and Mrs Gumede
reside permanently and
are domiciled in the province of KwaZulu-Natal. Their marriage was
of long duration. It has lasted
for over 40 years and out of it
four children were born, now all adults.
During
the marriage, Mrs Gumede was not in formal employment because her
husband did not permit her to work. However, by whatever
means she
could garner, she maintained the family household and was the
primary caregiver to the children. She had no means
to contribute
towards the purchase of the common home; her husband who was
working did. Mrs Gumede states that over time the
family acquired
two homes. She further explains, and the High Court accepted,
that she acquired the furniture and appliances
in the Umlazi
Township home valued at approximately R40 000. For some time
now, they have been living separately. Mrs
Gumede lives in the
residence in Umlazi, eThekwini and Mr Gumede lives in the house at
Adams Mission, Amanzimtoti. He also
receives a pension arising
from his employment with Rennies Cargo, where he was a foreman
until his retirement in April 2000.
Mrs Gumede has no other family
who can care for her, no other residence or family home. She is
now an old-aged pensioner
and lives off a government pension and
the occasional financial support which she receives from her
children. It should be
added that she receives no maintenance
contribution from Mr Gumede. I pause to record that in earlier
proceedings in the Equality
Court, Mr Gumede filed an affidavit in
which he denied that he owns the house at Adams Mission.
9
However, he has not repeated that denial in the High Court or in
this Court as he has not filed any papers in either court.
In any
event, nothing turns on this apparent dispute of fact.
On
all accounts it appears that the marriage has broken down
irretrievably. In January 2003, Mr Gumede instituted court
proceedings to end the marriage. The divorce proceedings are
pending before the divorce court. Mrs Gumede does not dispute that
their marriage has broken down irreparably and that it cannot be
salvaged. Before a divorce was granted, she approached the
High
Court with a view to procuring an order invalidating the statutory
provisions that regulate the proprietary consequences
of her
marriage. She sought to pre-empt the divorce court from relying on
legislation she considers unfairly discriminatory
to customary law
wives on grounds of gender and race.
It
is appropriate to add, with a view to settling the proprietary
aspect of the divorce, that Mr Gumede has offered to allow
the
residence at Umlazi to be sold and the proceeds to be divided
equally between him and Mrs Gumede. This, of course, means
that on
Mrs Gumede’s version, her husband will retain the rest of the
property whilst she will receive approximately
one quarter of the
total value of the matrimonial property.
I
give detailed attention to the impugned legislation later in this
judgment. However, this account will go somewhat limping
if I do
not, at this early stage, briefly describe the legislation which
aroused Mrs Gumede’s protest. The Recognition
Act provides
that a customary marriage concluded after its commencement on 15
November 2000 is ordinarily a marriage in community
of property.
10
For ease of reference, I refer to these customary marriages as
‘new’ marriages. The Recognition Act also provides
that customary marriages concluded before the cut-off date of 15
November 2000 (‘old’ marriages) are governed by
customary law.
11
The Gumedes concluded their marriage in 1968. It follows that it
is governed by customary law. None of the parties has contended
otherwise.
In
KwaZulu-Natal, where the Gumedes are domiciled, customary law has
been codified in the KwaZulu Act and the Natal Code. These
pieces
of provincial legislation provide that in a customary marriage, the
husband is the family head and owner of all family
property, which
he may use in his exclusive discretion. This plainly means that in
terms of codified customary law in KwaZulu-Natal
a wife to an ‘old’
customary marriage will not have any claim to the family property
during or upon dissolution
of the marriage. I make this
observation mindful of the distinction that should properly be made
between a particular version
of ‘official’ or codified
customary law, which should not be equated with living
indigenous/customary law –
a matter to which I revert later.
In
this Court the applicant seeks confirmation of the order of
constitutional invalidity in terms of the Constitution. The
government resists confirmation. It contends that the legislative
measures in issue are constitutionally defensible because,
first,
the Constitution obliges courts to apply customary law when it is
applicable.
12
And second, the differentiation the legislation makes between
‘old’ and ‘new’ customary marriages
is
justifiable under the Constitution.
In
another argument, government states that the relief Mrs Gumede is
asking for is premature and unnecessary because a decision
on the
proprietary consequences of her marriage is well within the power
of the divorce court. The nub of this argument is
that the
Recognition Act
13
provides that a court granting a decree for the dissolution of a
customary marriage has the powers of a court granting a divorce
under the Divorce Act.
14
In turn, the Divorce Act permits a divorce court to order the
transfer of property to another spouse if it is just and equitable
to do so.
15
Her remedy, they urge, lies in persuading the divorce court that
it is just and equitable for her to be awarded part of the
matrimonial property. On this argument, this is something the
divorce court may only do after hearing evidence and taking
into
consideration all relevant circumstances. They make the point that
Mrs Gumede’s remedy is not to seek an order
invalidating the
laws concerned, but to approach the divorce court for appropriate
relief.
In
this Court, the amicus curiae aligns itself with the applicant’s
submissions and adds that the proprietary regime of
‘old’
marriages is in conflict not only with the Constitution but also
with international and regional African
human rights instruments by
which South Africa is bound. The amicus makes the further point
that the unintended result of
the order of the constitutional
invalidity of sections 7(1) and (2) of the Recognition Act will be
that the proprietary consequences
of polygamous marriages will not
be provided for in the legislation. For that reason, the amicus
urged us to make an order
requiring parliament to remedy the
legislative gap in relation to polygamous marriages.
The issues
The
issues presented are neither obscure nor vast. The core issue is
whether the order of constitutional invalidity made by
the High
Court should be confirmed. The outcome of that inquiry is
predicated on whether the impugned provisions discriminate
unfairly
against the applicant and other women similarly situated. If they
do, the next question would be whether there is
justification that
saves the provisions from constitutional inconsistency. Lastly, if
unfair discrimination is found and cannot
be justified, this Court
must make an order of constitutional invalidity including any order
that may be just and equitable.
16
The statutory scheme
Before
I confront the equality claim, it may be helpful to discuss
up-front the operative statutory arrangements. The Recognition
Act
was assented to and took effect well within our new constitutional
dispensation.
17
It represents a belated but welcome and ambitious legislative
effort to remedy the historical humiliation and exclusion meted
out
to spouses in marriages which were entered into in accordance with
the law and culture of the indigenous African people
of this
country. Past courts and legislation accorded marriages under
indigenous law no more than a scant recognition under
the lowly
rubric of customary ‘unions’.
18
This
grudging recognition of customary marriages prejudiced immeasurably
the evolution of the rules governing these marriages.
For
instance, a prominent feature of the law of customary marriage, as
codified, is male domination of the family household
and its
property arrangements. Whilst patriarchy has always been a feature
of indigenous society, the written or codified
rules of customary
unions fostered a particularly crude and gendered form of
inequality, which left women and children singularly
marginalised
and vulnerable. It is so that patriarchy has worldwide prevalence,
yet in our case it was nurtured by fossilised
rules and codes that
displayed little or no understanding of the value system that
animated the customary law of marriage.
As Professor Nhlapo
poignantly points out:
“
[L]egislating these
misconstructions of African life had the affect of placing women
‘outside the law’. The identification
of the male head
of the household as the only person with property-holding capacity,
without acknowledging the strong rights
of wives to security of
tenure and use of land, for example, was a major distortion.
Similarly, enacting the so-called perpetual
minority of women as
positive law when, in the pre-colonial context, everybody under the
household head was a minor (including
unmarried sons and even
married sons who had not yet established a separate residence), had
a profound and deleterious effect
on the lives of African women.
They were deprived of the opportunity to manipulate the rules to
their advantage through the
subtle interplay of social norms, and,
at the same time, denied the protections of the formal legal order.
Women became ‘outlaws’.”
19
In
our pre-colonial past, marriage was always a bond between families
and not between individual spouses. Whilst the two parties
to the
marriage were not unimportant, their marriage relationship had a
collective or communal substance. Procreation and
survival were
important goals of this type of marriage and indispensable for the
well-being of the larger group. This imposed
peer pressure and a
culture of consultation in resolving marital disputes. Women, who
had a great influence in the family,
held a place of pride and
respect within the family. Their influence was subtle although not
lightly overridden. Their consent
was indispensable to all crucial
family decisions. Ownership of family property was never exclusive
but resided in the collective
and was meant to serve the familial
good.
20
After collecting authorities and reviewing ample ethnographic
material, Aninka Claassens records the following about property
rights, women and gender equity:
“
There is a range of
historical and ethnographic accounts that indicate that women, as
producers, previously had primary rights
to arable land, strong
rights to the property of their married houses within the extended
family, and that women, including single
women, could be and were
allocated land in their own right. Furthermore there are accounts
of women inheriting land in their
own right. However, Native
Commissioners applying racially based laws such as the Black Land
Areas Regulations and betterment
regulations issued in terms of the
South African Development Trust and Land Act repeatedly intervened
in land allocation processes
to prohibit land being allocated to
women.”
21
It
must, however, be acknowledged that even in idyllic pre-colonial
communities, group interests were framed in favour of men
and often
to the grave disadvantage of women and children.
22
However,
during colonial times, the great difficulty resided in the fact
that customary law was entirely prevented from evolving
and
adapting as the changing circumstances of the communities required.
It was recorded and enforced by those who neither
practised it nor
were bound by it. Those who were bound by customary law had no
power to adapt it. Even when notions of spousal
equality and
equity and the abolition of the marital power of husbands over
wives were introduced in this country to reform
the common law,
23
‘official’ customary law was left unreformed and
stone-walled by static rules and judicial precedent, which had
little or nothing to do with the lived experience of spouses and
children within customary marriages.
24
With the advent of democratic rule much had to give way.
The
Recognition Act is inspired by the dignity and equality rights that
the Constitution entrenches and the normative value
systems it
establishes. It is also necessitated by our country’s
international treaty obligations, which require member
states to do
away with all laws and practices that discriminate against women.
25
On the other hand, the Recognition Act gives effect to the
explicit injunction of the Constitution that courts must apply
customary law subject to the Constitution and legislation that
deals with customary law.
26
Courts are required not only to apply customary law but also to
develop it. Section 39(2) of the Constitution makes plain
that
when a court embarks on the adaptation of customary law it must
promote the spirit, purport and objects of the Bill of
Rights.
27
The
adaptation of customary law serves a number of important
constitutional purposes. Firstly, this process would ensure that
customary law, like statutory law or the common law, is brought
into harmony with our supreme law and its values, and brought
in
line with international human rights standards. Secondly, the
adaptation would salvage and free customary law from its
stunted
and deprived past. And lastly, it would fulfil and reaffirm the
historically plural character of our legal system,
which now sits
under the umbrella of one controlling law – the Constitution.
In this regard we must remain mindful that
an important objective
of our constitutional enterprise is to be “united in our
diversity.”
28
In its desire to find social cohesion, our Constitution protects
and celebrates difference. It goes far in guaranteeing cultural,
religious and language practices in generous terms provided that
they are not inconsistent with any right in the Bill of Rights.
29
Therefore, it bears repetition that it is a legitimate object to
have a flourishing and constitutionally compliant customary
law
that lives side by side with the common law and legislation.
30
The
Constitution does not define customary law. The Recognition Act
does. It defines customary law as “customs and usages
traditionally observed among the indigenous African peoples of
South Africa and which form part of the culture of those peoples”.
31
Difficult questions may surface about the reach of customary law,
whom it binds and, in particular, whether people other than
indigenous African people may be bound by customary law.
32
Happily, that matter will have to stand over for decision on
another day. Given the conclusion I reach on the equality claim
of
the applicant, it is not necessary to resolve whether the
discrimination is also on the ground of race or whether any of
the
parties is not bound by customary law. Both consider themselves
spouses in a customary marriage and bound by the codified
customary
law of KwaZulu-Natal.
I
revert to consider the main and other purposes of the Recognition
Act. Without a doubt, the chief purpose of the legislation
is to
reform customary law in several important ways. The facial extent
of the reform is apparent from the extended title
of the
Recognition Act. The legislation makes provision for recognition
of customary marriages. Most importantly, it seeks
to jettison
gendered inequality within marriage and the marital power of the
husband by providing for the equal status and
capacity of spouses.
It specifies the essential requirements for a valid customary
marriage and regulates the registration
of marriages. In this way,
it introduces certainty and uniformity to the legal validity of
customary marriages throughout
the country. The Recognition Act
regulates proprietary consequences and the capacity of spouses and
governs the dissolution
of the marriages, which now must occur
under judicial supervision. An additional and significant benefit
of this legislative
reform is that it seeks to salvage the
indigenous law of marriage from the stagnation of official codes
and the inscrutable
jurisprudence of colonial ‘native’
divorce and appeal courts.
For
purposes of the equality analysis in this case, a useful starting
point is section 6 of the Recognition Act. It provides:
“
A wife in a customary
marriage has, on the basis of equality with her husband and
subject
to the matrimonial property system governing the marriage
, full
status and capacity, including the capacity to acquire assets and to
dispose of them, to enter into contracts and to litigate,
in
addition to any rights and powers that she might have at customary
law.” (Emphasis added.)
On its terms it appears to usher in a remedial regime of equal worth
and capacity of spouses in customary marriages.
However,
section 7(1) of the Recognition Act swiftly qualifies the equal
dignity, status and capacity of the spouses by providing
that the
proprietary consequences of a customary marriage entered into
before its commencement continue to be governed by customary
law.
This means that ‘old’ marriages are subject to the
matrimonial system dictated by customary law. On the
other hand,
section 7(2) provides that, subject to certain exclusions that are
not here relevant,
33
a marriage concluded after the commencement of the Recognition Act
is a marriage in community of property and of profit and
loss
between the spouses unless these consequences are excluded by the
spouses in an antenuptial contract. In order to complete
the
picture, it is necessary to note that section 20 of the KwaZulu Act
and section 20 of the Natal Code provide that a family
head is the
owner and has control of all family property in the family home.
34
In turn, section 22 of the Natal Code places all “inmates”
of a kraal in respect of all family matters “under
the
control” of the family head to whom they all “owe
obedience”.
35
There
appears to be no interpretive dispute between the parties over the
meaning of these provisions and in particular that
the codified
customary law, which is applicable in the province where Mrs Gumede
is domiciled, has the outcome that her husband
is the exclusive
owner of all the property that was acquired during the subsistence
of the marriage. The first and trite observation
is that all these
provisions fall to be tested for constitutional compliance against
the dignity and equality guarantees of
our Bill of Rights.
Should
the offending customary law be developed?
However,
before I consider the equality argument, I digress to dispose of a
debate that ensued during the course of the hearing
of this matter.
The debate was prompted by a written submission that was made on
behalf of Mrs Gumede, to the effect that
her primary complaint
arises from customary law and therefore it is that matrimonial
property regime to which she is subjected
and which discriminates
against her because she is a woman. One associated question that
arose was why it would then be necessary
to declare invalid the
provisions of sections 7(1) and (2) of the Recognition Act, if the
mischief targeted resides in customary
law. Another associated
question was whether it would be appropriate to develop the
offending customary law that is applicable
to ‘old’
marriages in order to make that law consistent with the equality
and dignity prescriptions of the Constitution.
I
intimated earlier that, when appropriate, courts have a
constitutional obligation to develop customary law in order to
align it with constitutional dictates.
However,
the question of developing customary law in this particular
instance does not arise. Firstly, the version of customary
law we
are faced with is codified by legislation and applies only to the
province of KwaZulu-Natal. A competent court may
develop customary
law but its power in relation to legislation is not to develop the
legislation but to interpret it in a manner
that promotes the
objects of the Constitution or to hold, where appropriate, that it
is inconsistent with the Constitution
and for that reason invalid.
In confirmatory proceedings such as the present, the enquiry the
Court ordinarily makes is narrow.
This enquiry is whether the
order of constitutional invalidity made by the High Court should be
confirmed by this Court.
Our enquiry cannot possibly include the
question of whether this Court should develop the customary law,
not as codified, but
in its living form. This is so because no
rule of living customary law has been relied upon or impugned in
these proceedings.
Therefore there can be no merit in the
contention that this Court should develop the official customary
law as codified or
the living indigenous law.
36
Secondly,
even if there were a good reason for developing living customary
law, it would be ill-advised to do so because parliament
appears to
have made a conscious election that all ‘new’ customary
marriages should be marriages in community of
property and of
profit and loss, and that by implication, they are in harmony with
the communal ethos that underpins customary
law. It has not been
shown, nor can I find, that the legislative choice is
constitutionally flawed. This view is fortified
by the provisions
of section 211(3) of the Constitution, which require courts to
apply customary law “subject to . .
. any legislation that
specifically deals with customary law.” In my judgement a
development of customary law for the
limited purpose of
ameliorating the proprietary consequences of pre-recognition
marriages would not be appropriate in the face
of a deliberate
election by parliament to render all post-recognition marriages in
community of property.
An
additional important consideration is that if we were to declare
sections 7(1) and (2) of the Recognition Act inconsistent
with the
Constitution and invalid we would be rendering customary law
consistent with the guarantees and ethos of the Constitution.
In
other words, customary law would become consistent with the
Constitution and it follows, therefore, that it would be
unnecessary to develop it.
Equality and discrimination
Beyond
the Constitution, the Recognition Act is the starting point of this
equality analysis. It must be understood within
the context of its
legislative design. Its avowed purpose, as I have earlier
remarked, is to transform spousal relations in
customary marriages.
The legislation not only confers formal recognition on the
marriages but also entrenches the equal status
and capacity of
spouses and sets itself the task of regulating the proprietary
consequences of these marriages. In doing so,
the Recognition Act
abolishes the marital power of the husband over the wife and
pronounces them to have equal dignity and
capacity in the marriage
enterprise.
It
is helpful to keep in mind that the impugned provisions fall into
two categories. The first is an attack on the provisions
of the
Recognition Act and the second is an attack on the codified
customary law in KwaZulu-Natal. As I have already stated,
sections
7(1) and (2) of the Recognition Act differentiate between the
proprietary consequences of marriages entered into before
and after
the commencement of the Recognition Act, by providing that ‘old’
marriages will continue to be governed
by customary law, whilst
‘new’ marriages are to be marriages in community of
property and of profit and loss, except
where the parties agree
otherwise. On the other hand, the codified customary law in
KwaZulu-Natal subjects a woman married
under customary law to the
marital power of her husband, who is the exclusive owner and has
control of all family property.
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.
37
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.
The
consequence of the discrimination created by the Recognition Act is
to subject Mrs Gumede, and other women in KwaZulu-Natal
similarly
situated, to the proprietary system governed by customary law as
codified in the KwaZulu Act and the Natal Code.
The impact of this
legal arrangement is that the affected wives in customary marriages
are considered incapable or unfit to
hold or manage property. They
are expressly excluded from meaningful economic activity in the
face of an active redefinition
of gender roles in relation to
income and property. In this regard, in
Bhe
,
Langa
DCJ had the following to say, albeit it in the context of the male
primogeniture rule of customary law:
“
At a time when the
patriarchal features of Roman-Dutch law were progressively being
removed by legislation, customary law was
robbed of its inherent
capacity to evolve in keeping with the changing life of the people
it served, particularly of women.
Thus customary law as
administered failed to respond creatively to new kinds of economic
activity by women, different forms of
property and household
arrangements for women and men, and changing values concerning
gender roles in society. The outcome
has been formalisation and
fossilisation of a system which by its nature should function in an
active and dynamic manner.”
38
(Footnotes omitted.)
Langa
DCJ proceeded to hold that a rule of customary law that implies that
women are not fit or competent to own and administer
property
violated their right to dignity and equality.
39
There
can be no doubt that the marital property system contemplated by
the KwaZulu Act and the Natal Code strikes at the very
heart of the
protection of equality and dignity our Constitution affords to all,
and to women in particular. That marital
property system renders
women extremely vulnerable by not only denuding them of their
dignity but also rendering them poor
and dependent. This is
unfair. The Constitution itself places a particular premium on
gender equality by providing that that
if discrimination is based
on gender as one of the listed grounds, it is presumed to be
unfair. What remains is to consider
whether any justification has
been advanced to save the unfair discrimination spawned by the
impugned provisions.
Justification
It is trite that where there is unfair discrimination, a respondent
who contends that the discrimination is fair must place
before the
court material that will save the challenged provision from
unconstitutionality. This process of justification
is prescribed
by section 36 of the Constitution.
40
It follows that the government, in this case, bears the burden of
justifying the limitation that has been found to exist on
the right
to equality afforded to Mrs Gumede by the Bill of Rights. The
justificatory burden that the government bears was
described in the
following terms in
Moise v Greater Germiston Transitional Local
Council
:
“
If the government wishes
to defend the particular enactment, it then has the opportunity –
indeed an obligation –
to do so. The obligation includes not
only the submission of legal argument but placing before court the
requisite factual material
and policy considerations. Therefore,
although the burden of justification under section 36 is no ordinary
onus, failure by
government to submit such data and argument may in
appropriate cases tip the scales against it and result in the
invalidation
of the challenged enactment.”
41
The
government contends that the discrimination is justifiable under
our Constitution. For that contention it advances one
principal
reason and two ancillary reasons relating to the ripeness of the
equality claim. They argue that in terms of section
8(4)(a) of the
Recognition Act, a court dissolving a customary marriage has the
powers contemplated in sections 7, 8, 9 and
10 of the Divorce Act.
42
Section 7(3) of the Divorce Act provides:
“
A court granting a
decree of divorce in respect of a marriage out of community of
property—
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; or
entered into before the
commencement of the Marriage and Matrimonial Property Law
Amendment Act, 1988, in terms of section
22(6) of the Black
Administration Act, 1927 (Act No. 38 of 1927), as it existed
immediately prior to its repeal by the said
Marriage and
Matrimonial Property Law Amendment Act, 1988,
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 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.”
The
dissolution of a customary marriage, the government says, is now
dealt with on the same basis as that of a civil marriage.
Where
parties are married out of community of property, in the absence of
an agreement between them and on application of
a party, a court
may, if it is just and equitable, order that the assets of the
other party be transferred to the applicant
party.
The
subtext of this argument is that on divorce, Mrs Gumede may very
well persuade the court that assets of her husband should
be
transferred to her. On its very terms, this argument does not
pretend to deal with the spousal relationship during marriage.
It
is limited to the proposition that on divorce, a court may rely on
its just and equitable jurisdiction to transfer property
of a
husband to a wife of a pre-recognition customary marriage.
The
foundation stone of this contention is that the proprietary
consequences of a pre-recognition customary marriage are equivalent
to those of a civil marriage out of community of property. This
contention appears to be premised on the fact that section
8(4)(a)
of the Recognition Act confers on a divorce court the powers in
sections 7, 8, 9 and 10 of the Divorce Act. However,
sections
7(3), (4), (5) and (6) of the Divorce Act which give the court the
power to transfer property of the husband to the
wife apply only to
marriages out of community of property.
43
There
is considerable debate over the proper meaning to be ascribed to
the provisions of section 8(4)(a) of the Recognition
Act.
44
Professors Cronjé and Heaton contend that a divorce court
does have the power to exercise the equitable jurisdiction
given to
a divorce court by section 7(3) of the Divorce Act to customary
marriages even if they are not out of community of
property by
reason of the provisions of section 8(4)(a) of the Recognition
Act.
45
On the other hand, Professor Bennett argues that to reach that
conclusion requires an “adventurous interpretation”
of
section 8(4)(a).
46
However, in argument on Mrs Gumede’s behalf we were urged
not to decide the proper meaning of the section because the
equality claim can be adjudicated upon without deciding the
interpretive question. My view is that the meaning of section
8(4)(a) is germane to the justification enquiry and must be
decided. And what is more, this is a question of importance in
the
adjudication of divorces relating to customary marriages. We have
heard full argument on the interpretation of the provision
and
there is no reason why we should not decide the issue. Another
important consideration is that it is not always feasible
or
affordable for litigants in divorce proceedings, particularly those
relating to customary marriages, to approach this Court
for the
determination of a proper interpretation of a legal provision that
affects them so closely.
In
doing so we are obliged to give a purposive meaning to the
provisions of section 8(4)(a) of the Recognition Act. The
provisions must be understood within the context of the dominant
purpose of the Recognition Act to recognise and reform the law
on
customary marriages and, in particular, to equalise the status and
capacity of spouses. The purpose of the Recognition
Act includes
regulating the proprietary consequences of the marriages and their
dissolution under judicial supervision. Section
8(4) is couched in
broad terms. On its terms it does not refer to customary marriages
in or out of community of property.
I must instantly add that this
inclusive stance of the section is correct because in its original
setting, customary law did
not recognise the divide between
marriages in community of property and marriages out of community
of property. The section
directs a court granting a decree of
divorce of a customary marriage to exercise certain powers which
are more fully described
in section 7 of the Divorce Act. It is
however so that section 7(3) of the Divorce Act appears to relate
to the powers a court
has in granting a divorce in a marriage out
of community of property. That, however, does not mean that the
limitation found
in section 7(3) of the Divorce Act to civil
marriages out of community of property also restricts the powers
section 8(4)(a)
of the Recognition Act confers on courts in
relation to customary marriages.
This
conclusion is fortified by three important considerations. The
first is that the Recognition Act must be given a meaning
that
extends optimal protection to a category of vulnerable people who,
in this case, are women married under customary law,
in order to
give effect to the equality and dignity guarantees of the
Constitution. That, after all, is the primary purpose
of the
Recognition Act. The second is that, properly understood,
customary marriages should not be seen through the prism
of the
marital proprietary regimes under the common law or divorce
legislation that regulates civil marriages. They must be
understood within their own setting which does not place a premium
on the dichotomy between marriages in and out of community
of
property. In this regard, this Court had the following to say in
Alexkor v The Richtersveld Community
:
“
While in the past
indigenous law was seen through the common law lens, it must now be
seen as an integral part of our law. Like
all law it depends for
its ultimate force and validity on the Constitution. Its validity
must now be determined by reference
not to common law, but to the
Constitution.”
47
(Footnote omitted.)
Lastly,
section 8(4)(a) of the Recognition Act rightly confers equitable
jurisdiction to a divorce court seized with the dissolution
of a
customary marriage. This power that the court exercises is, in my
view, more consonant with the underlying ethos of customary
law
which strives for equity in resolving conflict.
In
my view, there is no cogent reason for limiting the scope of the
equitable jurisdiction conferred on a divorce court by section
8(4)(a) of the Recognition Act in relation to matrimonial property
of a customary marriage which is out of community of property.
It
is clear that at both a textual and purposive level, section
8(4)(a) does not restrict the equitable jurisdiction of a
court to
a marriage out of community of property. This means that every
divorce court granting a divorce decree relating to
a customary
marriage has the power to order how the assets of the customary
marriage should be divided between the parties,
regard being had to
what is just and equitable in relation to the facts of each
particular case. This would require that a
court should carefully
examine all the circumstances relevant to the customary marriage
and in particular the manner in which
the property of the marriage
has been acquired, controlled and used by the parties concerned, in
order to determine, in the
final instance, what would be a just and
equitable order on the proprietary consequences of the divorce.
Given
the meaning I have ascribed to section 8(4)(a) of the Recognition
Act, it is so that Mrs Gumede could have approached
the divorce
court requiring it to make an order that is just and equitable in
relation to the marriage property. That, however,
is no answer to
or justification for the unfair discrimination based on the listed
ground of gender. The persisting difficulty
confronting government
is that the provisions of section 8(4)(a) of the Recognition Act
read together with sections 7(3), (4),
(5), (6) and (7) of the
Divorce Act, apply only upon dissolution of the customary marriage.
In other words a divorce court
may make the equitable order in
relation to family property only when the marriage is dissolved.
This does not cure the discrimination
which a spouse in a customary
marriage has to endure during the course of the marriage. Another
difficulty the government
must confront is the following. Even if
Mrs Gumede approached the divorce court relying on section 8(4)(a)
of the Recognition
Act, she might be severely prejudiced because
under the codified customary law all the family property belongs to
her husband.
However, if sections 7(1) and (2) of the Recognition
Act are declared inconsistent with the Constitution, the starting
point
of the just and equitable enquiry a divorce court has to make
would be that she and her husband both own the matrimonial property
in equal shares. This means that when the court takes into
consideration all relevant circumstances, one important
consideration
will be that the parties own the family property in
equal shares. It is clear to me that the government has not
advanced any
justification for this unfair discrimination.
The
matrimonial proprietary system of customary law during the
subsistence of a marriage, as codified in the Natal Code and
the
KwaZulu Act, patently limits the equality dictates of our
Constitution and of the Recognition Act. The former statutes
provide that the family head is owner of all the family property
over which he has “charge, custody and control”
and may
“in his discretion use the same for his personal wants and
necessities, or for general family purposes or for
the
entertainment of visitors.”
48
This patriarchal domination over, and the complete exclusion of,
the wife in the owning or dealing with family property unashamedly
demeans and makes vulnerable the wife concerned and is thus
discriminatory and unfair. It has not been shown to be otherwise,
nor is there any justification for it.
On
behalf of the applicant it has been submitted that even if the
provisions of section 7(4) of the Divorce Act do apply, there
is a
further hurdle in the way of the case of the government. That
hurdle is that section 7(3) empowers a court to direct
that assets
of one party may not be transferred to the other unless the court
is satisfied that it is
equitable and just to do so
. On
that argument, unless the wife succeeds in persuading the court
that it is just and equitable that she be awarded some
of the
property, the husband will retain ownership of all the property
acquired during the course of the marriage. To the
extent, the
argument runs, that section 7(3) of the Divorce Act applies, it is
unfairly discriminatory against a wife to a
customary marriage who
must fight her way to sharing in the family property as against her
husband who is entitled to all of
the family property acquired
during the marriage.
It
is unnecessary to decide the constitutional validity of section
7(3) of the Divorce Act, the validity of which was not challenged
before the High Court and has not been referred to us for purposes
of confirmation. Suffice it to point out that in my view,
I do not
think that the just and equitable jurisdiction of a court granting
a divorce in a customary marriage should approach
the matter on a
footing that the wife bears the onus to establish that she is
entitled to have certain assets transferred to
her. As I have
intimated earlier, the court must investigate all the facts
relevant to the marriage property in order to be
in a position to
decide properly how the marriage property should be shared by the
husband and wife.
In
my view the government has advanced no justification for the
discrimination to be found in the impugned legislation. I conclude
that the order of invalidity made by the High Court should be
confirmed. In other words, I hold that the following provisions
are inconsistent with the Constitution and invalid because each of
them unfairly discriminates against the applicant on the
ground of
gender:
Section
7(1) of the Recognition Act insofar as it provides that the
proprietary consequences of a marriage entered into before
the
commencement of the Recognition Act continue to be governed by
customary law.
Section
7(2) of the Recognition Act, insofar as it distinguishes between a
customary marriage entered into after and before
the commencement
of the Recognition Act, by virtue of the inclusion of the words
“entered into after the commencement
of this Act”.
Section
20 of the KwaZulu Act because it provides that during the course of
a customary union the family head is the owner of
and has control
over all family property in the family home.
Section
20 of the Natal Code because it provides that the family head is
the owner of and has control over all family property
in the family
home.
Section
22 of the Natal Code because it provides that the inmates of a
kraal are in respect of all family matters under the
control of and
owe obedience to the family head.
Order and retrospectivity
Having
found that the impugned legislation is inconsistent with the
Constitution and thus invalid, this Court must make an order
that
is just and equitable, which may include an order limiting the
retrospective effect of the declaration of invalidity and
an order
suspending the declaration of invalidity to allow the legislature
to correct the defect. It is noteworthy that the
government has
not asked the Court to limit the retrospective effect of the order
of invalidity, as contemplated in section
172(1)(b)(i) of the
Constitution.
49
And they have not tendered any evidence or other cogent material
in support of such an order.
For
several good reasons, it would not be just and equitable to limit
the retrospective effect of the declaration of invalidity.
Suffice
it to point to three reasons only. First, the Recognition Act has
provided for customary marriages since 15 November
2000 to be
in community of property. It would not be just and equitable to
order that the declaration of invalidity should
have a prospective
effect only, when the equality challenge relates to pre-recognition
marriages. In other words, a prospective
order would not grant
any, or effective, relief to wives in marriages concluded before
the startt of the Recognition Act.
Second, whilst the Recognition
Act is remedial in purpose, the provisions of sections 7(1) and (2)
of the Recognition Act are
improperly under-inclusive. The
discrimination they spawn is so egregious that it should not be
permitted to remain on our
statute books by limiting the
retrospective operation of the order we are to make, or even by
suspending the order of invalidity
to allow parliament to rectify
the error. Third, the retrospective regime which the order would
permit is properly aligned
to the prospective regime created by
parliament in the Recognition Act in relation to post-recognition
marriages. The effect
of the order we are to make is that all
customary marriages would become marriages in community of
property. The recognition
of the equal worth and capacity of all
partners in customary marriages is well overdue and no case has
been made out as to
why it should be delayed any further.
It
is important to add that nothing in the order we intend making will
affect customary marriages that have been terminated
either by
death or by divorce before the date of this order. Also any
exercise of marital power before the date of the order
we will
make, will not be undone only as a result of this order.
What
remains is to consider the interests of third parties who may be
affected by a change in the proprietary regime of customary
marriages entered into before the Recognition Act. In this regard,
the provisions of
section 11(4)
of the
Matrimonial Property Act are
instructive.
Section 11(4)
reads as follows:
“
The abolition of the
marital power by subsection (2) shall not affect the legal
consequences of any act done or omission or fact
existing before
such abolition.”
Although
this provision does not find direct application in this case, it
serves as an example of how a concern over the possible
interests
of third parties may be legislatively managed during the transition
period. That provision protected legal consequences
from acts done
or omissions or facts existing before the abolition of marital
power. To the extent necessary, the order of
invalidity we are to
make may incorporate a provision which in substance is an
equivalent of
section 11(4)
of the
Matrimonial Property Act. I
am
of the view that the interests of third parties, who may be
affected by the altered matrimonial regime in relation to
pre-recognition customary marriages, may also be preserved by
incorporating a provision that allows a party to approach a
competent court should there be any adverse consequences arising
from the order we have made.
Amicus curiae
Lastly,
the amicus curiae made very useful submissions by pointing us to
international law and regional African human rights
law and
standards, to the vulnerability and position of the class of women
affected and to polygamous relationships.
50
The submissions on the first two issues have been adopted in
varying measures during the course of this judgment. Whilst
some
of the submissions made in relation to polygamous marriages are
instructive, I do not think that they should form the
subject-matter of the order of invalidity. The amicus argued that
by striking down section 7(1) of the Recognition Act there
will be
no statutory provision that regulates pre-recognition polygamous
marriages which are not covered by section 7(6) of
the Act. The
amicus submitted that this legislative lacuna should be remedied by
this Court by directing that upon the dissolution
of a
pre-recognition polygamous customary marriage, the family and house
properties should devolve in a manner specified in
an order of this
Court.
In
my view, it is sufficient to do no more than draw the legislature’s
attention to this possible lacuna, if any. I think
that once
section 7(1) of the Recognition Act has been declared inconsistent
with the Constitution and invalid, the proprietary
consequences of
polygamous relationships will be regulated by customary law until
parliament intervenes.
Costs
Mr
Gumede has not participated in these proceedings. There should be
no order of costs against him. However, in relation to
the two
government respondents, I can find no reason why they should not be
ordered to pay costs including costs consequent
upon the use of two
counsel. Costs should include costs as ordered by the High Court.
Conclusion
For
the sake of completeness I restate the principal findings I have
made:
The order of constitutional invalidity made by the High Court in
relation to certain legislation (sections 7(1) and (2) of
the
Recognition Act; section 20 of the KwaZulu Act; and sections 20
and 22 of the Natal Code) should be confirmed.
The impugned legislative provisions unfairly discriminate against
the applicant and other women similarly situated.
The government has failed to furnish justification for the
legislative discrimination on a listed ground, the discrimination
is therefore unfair, and the provisions concerned are inconsistent
with the Constitution and invalid.
The order should—
not limit its retrospective effect on parties to existing
marriages;
not suspend the declaration of invalidity; and
if necessary, have a saving provision in favour of third
parties or a generic order permitting a party claiming
specific prejudice arising from the retrospective change of
the matrimonial regime to approach a court for appropriate
relief.
The order of constitutional invalidity in relation to section 7(1)
of the Recognition Act is limited to monogamous marriages
and
should not concern polygamous relationships or their proprietary
consequences.
The order we are to make should not affect customary marriages
that have been terminated by death or divorce before this
order is
made.
Any exercise of marital power that is made before the date of the
order should not be undone only as a result of this order.
The Minister (sixth respondent) and the MEC (fourth respondent)
should be ordered to pay costs of the applicant in the High
Court
and in this Court.
Order
The
following order is made:
The application for the condonation of the late filing of the
appeal of the fourth and sixth respondents against the order
of
constitutional invalidity made by the High Court is granted.
The appeal is dismissed.
The order of constitutional invalidity made by the High Court is
confirmed.
Section 7(1)
of the
Recognition of Customary Marriages Act 120 of
1998
is declared inconsistent with the Constitution and invalid to
the extent that its provisions relate to monogamous customary
marriages.
The inclusion of the words “entered into after the
commencement of this Act” in
section 7(2)
of the
Recognition
of Customary Marriages Act 120 of 1998
is declared inconsistent
with the Constitution and invalid. These words are severed from
section 7(2)
of the
Recognition of Customary Marriages Act 120 of
1998
.
Section 20 of the KwaZulu Act on the Code of Zulu Law 16 of 1985 is
declared inconsistent with the Constitution and invalid.
Section 20 of the Natal Code of Zulu Law published in Proclamation
R151 of 1987 is declared inconsistent with the Constitution
and
invalid.
Section 22 of the Natal Code of Zulu Law published in Proclamation
R151 of 1987 is declared inconsistent with the Constitution
and
invalid.
In terms of section 172(1)(b) of the Constitution the orders in
paragraphs (c), (d), (e), (f), (g) and (h) of this order shall
not
affect the legal consequences of any act done or omission or fact
existing in relation to a customary marriage before this
order was
made.
Any interested person may approach this Court for a variation of
this order in the event of serious administrative or practical
problems being experienced as a result of this order.
The fourth and sixth respondents are to pay the costs of this
application, including the costs in the High Court, jointly and
severally, the one paying the other to be absolved, which shall
include costs of two counsel.
Langa CJ, Madala J, Mokgoro J, Ngcobo J, O’Regan J, Sachs J,
Skweyiya J, Van der Westhuizen J and Yacoob J concur in the
judgment
of Moseneke DCJ.
Counsel for the Applicant: Advocate G Budlender, Adv E van Huyssteen
instructed by the Legal Resources Centre
Counsel
for the Fourth and
Sixth Respondents: Advocate V Soni SC instructed by the State
Attorney.
Counsel for the Amicus Curiae: Advocate S Cowen, Adv N
Mangcu-Lockwood instructed by the Women’s Legal Centre
1
Section 167(5) provides:
“
The
Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President is
constitutional, and must confirm any order of invalidity made by the
Supreme Court of Appeal, a High Court, or a court of similar
status,
before that order has any force.”
See also section
172(2)(d) of the Constitution.
2
Gumede v President of the Republic of South
Africa and Others
Case No 4225/2006
Durban and Coast Local Division, 13 June 2008, unreported.
3
Section 9(3) provides:
“
The
state may not unfairly 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.”
Section 9(5) provides:
“Discrimination on one or more of the grounds listed in
subsection (3) is unfair unless it is established
that the
discrimination is fair.”
4
Act 120 of 1998.
5
KwaZulu Act on the Code of Zulu Law 16 of 1985.
6
Natal Code of Zulu Law published in Proclamation R151 of 1987, GG
No. 10966.
7
Initially Mrs Gumede instituted proceedings in the Equality Court.
The proceedings were aborted. In those proceedings, Mr Gumede
did
depose to an affidavit, which is attached to the High Court record
as an annexure to the affidavit filed on behalf of the
MEC. Mr
Gumede’s affidavit does not deal with the unfair
discrimination claim. He only disputes the extent of the
matrimonial
property.
8
Section 172(2)(d) of the Constitution confers on
a party with sufficient interest in an order of constitutional
invalidity made
by a court, a right of appeal to this Court. It
states:
“
Any person or organ of state with a sufficient
interest may appeal, or apply, directly to the Constitutional Court
to confirm
or vary an order of constitutional invalidity by a court
in terms of this subsection.”
9
Gumede v Minister of Justice and
Constitutional Development and Others
Case No. 2/2005 in the Equality Court held at the Durban and Coast
Local Division, unreported 2/2005.
10
Section 7(2) provides:
“
A
customary marriage entered into after the commencement of this Act
in which a spouse is not a partner in any other existing
customary
marriage, is a marriage in community of property and of profit and
loss between the spouses, unless such consequences
are specifically
excluded by the spouse in an antenuptial contract which regulates
the matrimonial property system of their marriage.”
11
Section 7(1) provides: “The proprietary consequences of a
customary marriage entered into before the commencement of this
Act
continue to be governed by customary law.”
12
For this proposition the government relies on section 211(3) of the
Constitution which states:
“
The
courts must apply customary law when that law is applicable, subject
to the Constitution and any legislation that specifically
deals with
customary law.”
13
Section 8(4)(a) of the Recognition Act provides:
“
A court granting a decree for the dissolution of
a customary marriage—
(a) has the powers contemplated in
sections 7
,
8
,
9
and
10
of the
Divorce Act, 1979
, and section 24(1) of the Matrimonial
Property Act, 1984 (Act 88 of 1984).”
14
Divorce Act 70 of 1979
, and in particular the powers contemplated in
sections 7, 8 and 9 of the Act. Section 7 of the Act provides for
the division
of assets and maintenance of the parties. Section 8 of
the Act provides for the rescission, suspension and variation of
orders.
Section 9 of the Act deals with the forfeiture of
patrimonial benefits.
15
Sections 7(3)
and (4) of the
Divorce Act.
16
Sections
172(1)(a) and (b) read as follows:
“
(1) When deciding a constitutional matter within
its power, a court—
(a) must declare that any law or conduct that is
inconsistent with the
Constitution is invalid to the extent of its
inconsistency; and
(b) may
make an order that is just and equitable, including—
(i) an
order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of
invalidity for any period and
on
any conditions, to allow the competent authority to correct the
defect.”
17
The Recognition Act was assented to on 20 November 1998 and its date
of commencement was 15 November 2000.
18
See Mbatha, Moosa and Bonthuys “Culture and
Religion”
in
Bonthuys and Albertyn (eds)
Gender, Law
and Justice
(Juta, Cape Town 2007) at
159-64; see also Mamashela “New families, new property, new
laws: The practical effects of the
Recognition of
Customary Marriages Act”
(2004)
20
SAJHR
616
at 628; Pieterse “It’s a ‘Black Thing’:
Upholding culture and customary law in a society founded on
non-racialism”
(2001)
17
SAJHR
364
at 373 and 381.
19
Nhlapo “African customary law in the
interim Constitution”
in
Liebenberg (ed)
The Constitution of
South Africa from a Gender Perspective
(Community
Law Centre: University of the Western Cape, Cape Town 1995) at 162.
20
See
Claassens “Women, Customary law and
discrimination: The impact of the Communal Land Rights Act”
(2005)
Acta
Juridica
42.
21
Id at 50.
22
Above n 19 at 160-61. See also
Bhe
and Others v Magistrate, Khayelitsha and Others
[2004] ZACC 17
;
2005 (1) BCLR 1
(CC);
2005 (1) SA 580
(CC) at para
78.
23
Section 11
of the
Matrimonial Property Act 88 of 1984
abolished a
husband’s marital power over the person and property of his
wife under the common law. For a discussion of
gender equality
reforms to previously discriminatory common law rules see
Van Der
Merwe v Road Accident Fund and Another
[2006] ZACC 4
;
2006 (6)
BCLR 682
(CC);
2006 (4) SA 230
(CC) at paras 29-32.
24
Shilubana and Others v Nwamitwa
[2008] ZACC 9
, 4 June 2008, as yet unreported, at para 45;
Bhe
,
above n 22 at para 90, and with respect to the rules of succession
in particular, at para 82. See also Himonga and Bosch “The
Application of African Customary Law Under the Constitution of South
Africa: Problems Solved or Just Beginning?”
(2000) 117
SALJ
306
at 328-9; and Van der Meide “Gender Equality v Right to
Culture”
(1999) 116
SALJ
100
at 101 and 105-6.
25
See articles 2 and 16 of the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW),
which South Africa
acceded to on 15 December 1995; article 18(3) of
the African Charter on Human and Peoples’ Rights, which South
Africa acceded
to on 9 July 1996; articles 2, 6 and 7 of the
Protocol to the African Charter on Human and Peoples’ Rights
on the Rights
of Women in Africa, which South Africa ratified on 17
December 2004; and articles 3 and 23(4) of the International
Covenant on
Civil and Political Rights, which South Africa ratified
on 10 December 1998.
26
See section 211(3), above n 12. See also
Alexkor
Ltd
and Another v The Richtersveld Community and Others
[2003] ZACC
18
;
2003 (12) BCLR 1301
(CC);
2004 (5) SA 460
(CC) at para 51.
27
Section 39(2) provides:
“
When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or
forum must promote
the spirit, purport and objects of the Bill of
Rights.”
28
Preamble, Constitution of the Republic of South Africa, 1996.
29
See in this regard section 6 of the Constitution, which mandates
measures for the protection of South Africa’s official
languages. With respect to language and culture section 30 states:
“
Everyone
has the right to use the language and to participate in the cultural
life of their choice, but no one exercising these
rights may do so
in a manner inconsistent with any provision of the Bill of Rights.”
Finally, section 31
provides:
“
(1) Persons belonging to a cultural, religious
or linguistic community may not be denied that right, with other
members of that
community—
(a) to enjoy their culture, practise their religion and
use their language; and
(b) to form, join and maintain cultural, religious and
linguistic associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised
in a manner inconsistent with any provision of the Bill of Rights.”
30
For a critical appraisal of legal pluralism in
relation to customary law see Cornell
uBuntu,
Pluralism and the Responsibility of Legal Academics to the New South
Africa
(Inaugural lecture delivered at
the University of Cape Town on 10 September 2008), available at
http://www.news.uct.ac.za/usr/lectures/Drucilla_Cornell.pdf,
accessed on 2 December 2008.
31
Section 1 of the Recognition Act.
32
For the academic debate on the reach and implications of the
definition of customary law see Pieterse, above n 18, who argues
that customary law applies in a racially exclusive manner; and
Himonga and Bosch, above n 24 at 314-5, who argue that customary
law after the final Constitution applies on the basis of culture and
not race. On whether customary law has in-built racial
or cultural
determinants see also Bennett
Customary Law in South Africa
(Juta, Cape Town 2004) at 42.
33
For convenience, I repeat the text of section 7(2):
“
A
customary marriage entered into after the commencement of this Act
in which a spouse is not a partner in any other existing
customary
marriage, is a marriage in community of property and of profit and
loss between the spouses, unless such consequences
are specifically
excluded by the spouses in an antenuptial contract which regulates
the matrimonial property system of their
marriage.”
34
Section 20 of the KwaZulu Act states:
“
The
family head is the owner of all family property in his family home.
He has charge, custody and control of the property attaching
to the
houses of his several wives and may in his discretion use the same
for his personal wants and necessities, or for general
family
purposes or for the entertainment of visitors. He may use,
exchange, loan or otherwise alienate or deal with such property
for
the benefit of or in the interests of the house to which it
attaches, but should he use property attaching to one house for
the
benefit or on behalf of any other house in the family home an
obligation rests upon such other house to return the same or
its
equivalent in value.”
Section 20
of the Natal Code provides:
“
The
family head shall be the owner of all family property in his family
home. He shall have charge, custody and control of the
property
attaching to the houses of his several wives and may in his
discretion use the same for his personal wants and necessities,
or
for general family purposes or for the entertainment of visitors.
He may use, exchange, loan or otherwise alienate or deal
with such
property for the benefit of or in the interests of the house to
which it attaches, but should he use property attaching
to one house
for the benefit or on behalf of any other house in the family home
an obligation shall rest upon such other house
to return the same or
its equivalent in value.”
35
Section 22 of the Natal Code reads: “The
inmates of a family home irrespective of sex or age shall in respect
of all family
matters be under the control of and owe obedience to
the family head.”
36
On living customary law see
Alexkor Ltd and Another v The
Richtersveld Community
, above n 26 at paras 52-3; and
Shilubana
v Nwamitwa
, above n 24 at para 81. In
Bhe
, above n 22 at
para 87, this Court also contrasted official rules of customary law
with “‘living customary law’,
which is an
acknowledgment of the rules that are adapted to fit in with changed
circumstances.” For further discussion
on living customary
law, see Himonga and Bosch, above n 24 at 319-323.
37
Sections 9(3) and (5) of the Constitution, above n 3.
38
Above n 22 at para 90.
39
Id at paras 90-2.
40
Section 36(1) of the Constitution reads:
“
The rights in the Bill of Rights may be limited
only in terms of law of general application to
the extent that the limitation is reasonable and
justifiable in an open and democratic society
based on human dignity, equality and freedom, taking
into account all relevant factors,
including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.”
41
Moise v Greater Germiston Transitional Local Council: Minister of
Justice and Constitutional Development intervening (Women’s
Legal Centre as amicus curiae)
[2001] ZACC 21
;
2001 (8) BCLR 765
(CC);
2001 (4) SA 491
(CC) at para 19.
42
Subsection 7(4) requires that an order granted in terms of
subsection (3) must be just and equitable and may be ordered only
after taking into consideration any contribution to maintenance or
an increase in the estate of the other party during the subsistence
of the marriage; subsection 7(5) lists the factors which a court
needs to take into account in considering whether and which
assets
are to be transferred in accordance with subsection (3); a court may
order, in terms of subsection 7(6), that satisfaction
of an order
made in terms of subsection (3) may be deferred on certain
conditions, upon application being made by the party against
whom
the order is granted; and subsection 7(7) renders a party’s
pension interests part of his or her assets for purposes
of
determination of patrimonial benefits. Section 8 deals with
rescission, suspension or variation of orders. Section 9 makes
provision for the forfeiture of patrimonial benefits. And section
10 provides a court with a discretion as to whom to award
costs
against.
43
Above n 42.
44
See for instance Bennett, above n 32 at 182.
45
Cronjé and Heaton
South African Family Law
2ed
(LexisNexis Butterworths, Durban 2004) at 195-6.
46
Bennett, above n 32 at 282.
47
Above n 26 at para 51.
48
Above n 34.
49
See above n 16 for the full text of section 172(1)(b)(i).
50
The amicus referred to several international as
well as regional African human rights instruments, to wit: the
International Covenant
on Civil and Political Rights; CEDAW; the
SADC Protocol on Gender and Development; the African Charter on
Human and Peoples’
Rights; the Protocol to the African Charter
on Human and Peoples’ Rights on the Rights of Women in Africa.