I do, I do, I also do: Equal right to matrimonial property

March 1st, 2017

By Ndalama Maliseha and Keneilwe Radebe

A rather overdue advancement of women’s right to property ownership took place during women’s month at the Limpopo Local Division of the High Court in Thohoyandou in the case of Ramuhovhi and Another v President of the Republic of South Africa and Others 2016 (6) SA 210 (LT). The High Court had an application before it challenging the constitutionality of the proprietary consequences in ‘old polygamous customary marriages’. The term ‘old polygamous customary marriages’ in this article is used to describe polygamous customary marriages concluded before the Recognition of Customary Marriages Act 120 of 1998 (RCMA) came into operation.

Applicants in this case challenged s 7(1) of the RCMA in that it provided that customary law shall continue to govern proprietary consequences of polygamous marriages entered into prior to the enactment of the RCMA. In the Ramuhovhi matter by virtue of s 7(1) and the applicable Venda custom, wives in old polygamous customary marriages acquired no rights in or control over marital property. The High Court in the Ramuhovhi matter held that s 7(1) was unconstitutional in that it was discriminatory on the grounds of race, ethnicity and social origin.

This section was also under fire in the case of Gumede v President of Republic of South Africa and Others 2009 (3) SA 152 (CC). The Constitutional Court (CC) in Gumede held that s 7(1) was unconstitutional and discriminatory on the grounds of gender in as far as it related to monogamous customary marriages entered into prior to the RCMA. Unfortunately, the situation remained unchanged for old polygamous customary marriages until quite recently.

This article commends the judgment in Ramuhovhi for its attempt to cure the injustice ‘long suffered’ by women in old customary marriages, in particular, polygamous marriages.  The next section briefly summarises the facts and findings of the judgment, which highlights the perpetual struggle of wives in old customary marriages.  It further exposes a significant loophole found in the RMCA with regard to its failure to protect the ‘particularly vulnerable’.

Facts in the Ramuhovhi matter

The deceased (husband) had during his lifetime concluded three polygamous customary marriages and two civil marriages (at para 6). The first civil law marriage was terminated by divorce in 1984 (at para 6). The deceased’s second civil law marriage was declared null and void by the Supreme Court (SCA)  in Netshituka v Netshituka and Others 2011 (5) SA 453 (SCA). The said marriage was concluded while the deceased was still a party to subsisting customary law marriages (at para 7).

The applicants are the deceased’s surviving children from his two polygamous customary marriages concluded before the enactment of the RCMA (at para 10). The applicants sought old polygamous customary marriages to have the legal consequences of a marriage in community of property (at para 2). The position prior to this judgment was that, in accordance with s 7(1) of the RCMA and applicable Venda custom, such wives of old polygamous customary marriages did not have any rights or control of the matrimonial property (at para 14).  Due to this position, the deceased, had managed to unilaterally alienate certain marital fixed property and further co-own the property with his ‘second civil law wife’ to the exclusion of his customary law wives (at para 12). This fixed property was the bone of contention in this case. The deceased further in his will bequeathed his ‘half share’ of  the joint estate  to his wives  and  further appointed his ‘second civil law wife’ as the executrix of his estate (at paras 8 – 9). The deceased’s will was held to be legally valid and binding by the SCA in the Netshituka matter. The ‘second civil law wife’ was also referred by the deceased as ‘his wife to whom he is married in community of property’ (at para 8). Thus the consequence of s 7(1) was that the deceased managed to bequeath a larger portion of the estate in his will: This effectively made it possible for the deceased to bequeath a greater share of the estate to his ‘second civil law wife’ to the disadvantage of his customary law wives.

The amicus curiae made an important submission in that wives in old polygamous customary marriages are ‘particularly vulnerable’ (at para 15). This submission was further supported by Lamminga AJ wherein she mentioned that, denying such wives equal protection perpetuates their vulnerability as they have for a long time been in need of protection (at para 33). The court further added that: ‘Old polygamous customary marriages are a reality and many women and children still live in these types of family relationship’ (at para 33). Thus the women and their children were in need of protection. The court also referred to the fact that South Africa is bound by certain international treaties that require party states to protect the fundamental rights of vulnerable women (at para 34). The court ultimately held that s 7(1) was discriminatory on the basis of race, ethnic or social origin and that there was no justification for such discrimination (at para 46). This section was also found to create an unjust differentiation between wives in monogamous and polygamous marriages (at para 46). This particular section defeated the purpose of the RCMA.

The court thus ordered that wives in old polygamous customary marriages should enjoy equal rights in the matrimonial property between each of them and their husband (at para 63). Therefore, these wives will have the right to equally manage and control matrimonial property. The court in its effort to retain the customary concept of polygamous marriage ensured that a distinction is maintained with regard to house property, family property and personal property (at para 63). Since in polygamous marriages separate property comes into being, the court in its judgment ensured that only the husband and the wife of the property concerned, jointly enjoy equal rights to the benefit of the house (at para 63).

Ending women’s perpetual discrimination emanating from customary law

This case brings into focus customary succession laws that discriminate against vulnerable women in customary marriages. Lamminga AJ in Ramuhovhi acknowledged the continuing plight and long struggle of such wives in old polygamous customary marriages. The judgment also exposes the irregularity of the RMCA in its failure to protect the most vulnerable women and children in such marriages.

Wives in old polygamous customary marriages are particularly more vulnerable and this comes as a result of them being subjected to discriminatory and codified customary laws. Thus the failure of the RCMA to protect such wives comes as a contradiction of the Act’s purpose. The Ramuhovhi case followed the footsteps of noteworthy cases such as Gumede and Bhe v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) SA 580 (CC) wherein the CC declared discriminatory customary law rules of succession as invalid and unconstitutional.

These cases also expose how such women were subject to discriminatory codified customary laws preventing them from inheriting and also leaving them susceptible to eviction. In the Gumede matter s 20 of the KwaZulu Act on the Code of Zulu Law 16 of 1985 excluded wives from the managing and controlling matrimonial property (at para 3). While in the Bhe matter, s 23 of the Black Administration Act 38 of 1927 provided for the rule of male primogeniture, which prevented women within customary law relations from inheriting property (at para 1). These cases sadly exposed the vulnerability of such women to eviction and in most cases both the women and children suffer. Thus the judgment in Ramuhovhi comes a long way in ensuring women’s rights to property ownership which in turn protects women’s right to dignity and equality.

The contradictory nature of s 7(1) of the RCMA and its failure to protect ‘the particularly vulnerable’

In Gumede, Moseneke DCJ mentioned the following in regard to the RCMA: ‘It represents a belated but welcome and ambitious legislative effect 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’ (at para 16).

From the above quote it appears that the RCMA had a noble intention of the protection of the rights of all spouses, women in particular, involved in customary marriages. However, unfortunately s 7(1) of the RCMA hampers the objective. Section 7(1) further rendered empowering sections such as s 6(1) useless when it comes to protecting the rights of spouses in old polygamous customary marriages.  Section 6(1) sought to abolish marital power by granting all spouses equal power in terms of the controlling and management of marital property. Section 7(1), however, defeats this purpose as the applicable customary law in most cases sees the husband as the head of the house who has full control over marital property.

Conclusion: Caution in the application of the RCMA

This judgment clearly highlights that the RCMA unfairly discriminates against women in old customary marriages. It appears that legislators were more concerned with the protection of customary marriages concluded after the enactment of the RCMA. Unfortunately, spouses of new customary marriages are not ‘particularly vulnerable’. Sometimes, spouses convert their customary marriages into civil marriages. Therefore, until this judgment the RCMA had its main purpose defeated in that ‘particularly vulnerable’ spouses were not protected in matters of succession.

Seeing that there appear to be loopholes in the application of the RCMA, one would advocate for a more purposeful interpretation of the RCMA, which –

  • is in line with the constitutional right to equality and international instruments, which we are party to; and
  • protect and promote the advancement of women and children’s rights.

The said purposeful interpretation will alleviate the marginalisation of the most vulnerable spouses involved in customary marriages, which is in fact the purpose of the Act.

Therefore, in the absence of legislative evaluation of the main purpose of the RCMA, this Act could be a mere continuation of the prior codified official customary laws including the Black Administration Act, which fostered the discrimination towards wives in customary marriages or relationships. Although the RCMA has made significant strides with regard to the recognition of customary marriages, its failure to protect those in old customary marriages could cast a dark cloud on the Act’s achievements.

Ndalama Maliseha LLB (UP) is an attorney at Maliseha Attorneys in Pretoria and Keneilwe Radebe LLM (UP) is a lecturer at the University of Pretoria.

This article was first published in De Rebus in 2017 (March) DR 16.

De Rebus