On 17 April 2021, the Constitutional Court, in a unanimous judgment in the case of Sithole and Another v Sithole and Another (CCT 23/20)  ZACC 7 (“Sithole”) , upheld the decision of the High Court and made an Order declaring the provisions of section 21(2)(a) of the Matrimonial Property Act 88 of 1984 (‘the MPA’) unconstitutional and invalid to the extent that they maintain and perpetuate the discrimination created by section 22(6) of the Black Administration Act 38 of 1927 (‘the BAA’) , and thereby maintain the default position of marriages of black couples, entered into under the BAA before the 1988 amendment, that such marriages are automatically out of community of property.
The Order further declared that all marriages of black persons that are out of community of property and were concluded under section 22(6) of the Black Administration Act before the 1988 amendment are, save for those couples who opt for a marriage out of community of property, marriages in community of property.
In order to understand the significance of this judgment, we need to look back at the history and discriminatory effect the BAA had in the lives of black people in South Africa.
Historically marriages of Black people had a separate dispensation from other marriages. They were governed by the BAA. In terms of section 22(6) of the BAA these marriages were automatically out of community of property, except where certain conditions were met. Section 22(6) of the BAA provided:
“A marriage between Natives, contracted after the commencement of this Act, shall not produce the legal consequences of marriage in community of property between the spouses: Provided that in the case of a marriage contracted otherwise than during the subsistence of a customary union between the husband and any woman other than the wife it shall be competent for the intending spouses at any time within one month previous to the celebration of such marriage to declare jointly before any magistrate, native Commissioner or marriage officer (who is hereby authorized to attest such declaration) that it is their intention and desire that community of property and of profit and loss shall result from their marriage, and thereupon such community shall result from their marriage except as regards any land in a location held under quitrent tenure such land shall be excluded from such community.”
Section 22(6) of the BAA created the default position that Black couples were married out of community of property. They were permitted to marry in community of property if, in the month prior to their marriage, they jointly declared to a Magistrate, commissioner or marriage officer that they intended their marriage to be in community of property and of profit and loss. That could only occur if the marriage was not contracted during the subsistence of a customary union between the husband and any woman other than his wife. As the text indicates, section 22(6) of the BAA only governed marriages of Black people and not marriages of other races.
Section 22(6) was repealed by the Amendment Act . The Amendment Act deleted section 22(6) and inserted sections 21(2)(a) and 25(3) into the MPA, thereby giving persons married out of community of property in terms of section 22(6) of the BAA the opportunity to change their matrimonial property regime within two years from 2 December 1988. Couples were required to do so by executing and registering a notarial contract to that effect.
Section 21(2)(a) of the MPA permitted couples to make the out of community accrual system provided for in Chapter I of the MPA applicable to their marriages. Those parties who did not know that they could change their matrimonial property regime and those who were simply not aware that their marriages were automatically out of community of property, or did not appreciate the legal consequences of this, are still married out of community of property.
The discriminatory effects of the provisions of the BAA and MPA were that black women who entered into a marriage before the 1988 amendment of the BAA did not receive the same protection of the law that would automatically have been conferred to women of other ethnicities married in community of property. The default position in terms of South African matrimonial legislation is that marriages entered into by parties are automatically marriages in community of property, unless the parties enter into a Notarial Contract stipulating otherwise. The 1988 amendment of the BAA and MPA shifted the onus of the default position of marriages in South Africa to the parties married in terms of the BAA.
In the Sithole matter, the parties, the First Applicant (“Mrs Sithole”) and First Respondent (“Mr Sithole”) were married to each other in 1972. Unbeknown to Mrs Sithole, their marriage was, as a result of the default position created by the MPA out of community of property. Between 1972 and 1985, Mrs Sithole stayed at home and raised their children; she conducted a home-based business, selling clothing. In 1985, she commenced employment as a project manager at an engineering firm but continued operating her clothing business. Her income was used to pay for the education of their children, family and household expenses.
In 2000, they purchased their family home and this was registered in Mr Sithole’s name. During the past few years, their relationship deteriorated allegedly because Mr Sithole was engaged in extra-marital affairs. At some point Mr Sithole threatened to sell the family home. She disagreed with this, but Mr Sithole persisted with his threat to sell the family home. Mrs Sithole then launched an application for an order interdicting and restraining Mr Sithole from selling their home at the Pinetown Magistrates Court. She learned, during these proceedings that she was married out of community of property and that her husband did not need her consent to sell the property. Mrs Sithole is a devout member of the Roman Catholic Church and divorce in her church is discouraged and frowned upon.
The First Applicant, Mrs Sithole and the Second Applicant, the Commission for Gender Equality, jointly brought an application before the High Court to declare section 21(1) and 21(2)(a) of the MPA unconstitutional and invalid. They claimed that women who are unable to divorce their husbands or to change the proprietary regime of their marriage will continue to suffer the discriminatory impact of section 22(6) of the BAA. The applicants contended that section 22(6) of the BAA disadvantaged Black women by providing that except in limited circumstances, their marriage would be out of community of property, it subsequently denied hundreds of thousands of Black women the protection that is afforded by a marriage in community of property. The Marriage and Matrimonial Property Law Amendment Act (the Amendment Act) repealed section 22(6) of the BAA; but did not end the disadvantage suffered by Black women who had married before 1988 as the default position in such marriages is that they are out of community of property.
The High Court found in favour of the applicants. It held that the provision of section 21(2)(a) differentiates between Black spouses who entered into marriage before 1988 and black spouses who entered into marriage after 1988. The High Court held that section 22(6) of the BAA only precluded black couples from having their marriage in community of property and black couples did not enjoy the legal protection afforded by a marriage in community of property that all other South Africans enjoyed. The High Court further held that section 21(2)(a) discriminated against black persons married before 1988. The discrimination, the court stated, hinders the enjoyment of constitutional rights of Black women in South Africa as it denies women the protection which is afforded by a marriage in community of property, this the court stated amounted to indirect unfair discrimination against women on the ground of sex. Such situation renders them dependent on their husbands who generally control the majority of the family’s wealth and assets. The High Court then stated that section 21(2)(a) preserves and perpetuates the discrimination created by section 22(6) of the BAA. The High Court accordingly declared section 21(2)(a) of the MPA unconstitutional and declared that all marriages of Black persons concluded out of community of property under section 22(6) of the BAA before 1988 are declared to be marriages in community of property.
In the Constitutional Court, the applicants contended that section 21(2)(a) of the MPA is unconstitutional as it maintains and perpetuates the racial and gender discrimination against Black women which was created by the repealed section 22(6) of the BAA. They contended further that the impugned provisions subsequently infringe on the rights to equality, dignity, right to access to housing and health care services. They submitted that marriage in community of property is advantageous to women. They further contended that the High Court order should be confirmed, and that the declaration of invalidity should have a retrospective effect. Additionally, the applicants submitted that it should be declared that all marriages concluded out of community of property under section 22(6) of the BAA are converted to marriages in community of property.
The first respondent, Mr Sithole, opposed the application for confirmation of the High Court order and submitted that he and the first applicant had elected to enter into a marriage out of community of property. The first respondent submitted that the Constitutional Court should not confirm the order of constitutional invalidity in respect of his marriage with the first applicant.
The Constitutional Court held that the dire consequences suffered by Black people as a result of such discriminatory laws make it compelling that such laws should be urgently obliterated from our statutes. It found section 21(2)(a) of the Matrimonial Property Act 88 of 1984 to be unfairly discriminatory and such discrimination was not justifiable under section 36 of the Constitution. The Constitutional Court accordingly confirmed the High Court’s order that section 21(2)(a) of the Matrimonial Property Act is unconstitutional and invalid to the extent that it maintains and perpetuates the discrimination created by section 22(6) of the Black Administration Act 38 of 1927 (BAA), in that marriages of Black couples, entered into under the BAA before 1988, are automatically out of community of property.
In a unanimous judgment penned by Tshiqi J concurred in by (Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ), the Constitutional Court pointed out that the only possible explanation for the retention of these remnants of past discriminatory laws in our statutes is that they have been overlooked.
The Constitutional Court further voiced its displeasure with the Second Respondent, the Minister of Justice and Correctional Services by stating that as a member of the Executive responsible for the administration of the legislation in question, he bears the responsibility to detect areas of concern in legislation and take responsibility to rectify them. Had he amended the legislation, this application would not have been brought. The Constitutional Court held that in the circumstances a costs order against the Minister in this Court was appropriate.
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Written by: Msizi Mhlongo
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