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This article is a response to the article by the legal practitioner and Associate Professor Clement Marumoagae (the author) titled ‘Is the divorce court’s discretion to transfer assets as per the Divorce Act unconstitutional?’ published in 2022 (Nov) DR 18.

In G v Minister of Home Affairs and Others (Pretoria Attorneys Association as Amicus Curiae) [2022] 3 All SA 58 (GP), the High Court declared the cut-off date of 1 November 1984 in s 7(3)(a) of the Divorce Act 70 of 1979 inconsistent with the Constitution, invalid and severed the invalid wording from the section. The Constitutional Court (CC) has not yet considered the orders made. The article discusses whether the CC should confirm the High Court’s order of unconstitutionality.

I authored an article, inter alia, on the above case published in De Rebus in which I lauded the sound and well-reasoned judgment as ‘an enlightened renaissance reform in the amelioration of the plight of married women’ (Alick Costa ‘The antenuptial contract – incorporating or excluding accrual resulting in s 7(3) of the Divorce Act being applicable’ 2023 (March) DR 12).

The gravamen of the article is that the author criticised the joint report of the two experts that was prepared in support of the wife’s application and critical of the court in accepting the report. The author also argued that there is also a need for further adequate and empirical research to be done on several issues and for various interest groups to be allowed to participate as amicus. I respectfully disagree.

Mr and Mrs G were married out of community of property excluding the accrual system in March 1988. In support of the relief which she as the applicant sought and was granted, she filed a joint report by two experts Professor Bonthuys and Dr Coetzee. The report ‘sketches the context of gender inequality in South Africa’ and demonstrated how typically women are unfairly disadvantaged (para 13).

The court defines the ‘economically disadvantaged party’ as the economic inactive or less active party. ‘Women are, however, still predominantly found in the position of the economically disadvantaged party’ (para 42). ‘Thus, the inequality which is caused because the economically disadvantaged spouse nevertheless made a direct or indirect contribution towards the other spouse’s estate, persists’ (para 54). ‘Only those who go blindfolded through life can deny that gender equality has not yet been achieved in South Africa’ (para 55).

The criticism of the joint report of the experts and acceptance thereof by the court is unjustified and the reasons advanced are unconvincing. The report was not challenged by any of the three respondents (who likely obtained legal advice), which included the applicant’s husband, nor did they oppose the application. Furthermore, the Pretoria Attorneys Association as amicus ‘recognises the invaluable contribution of the academic input provided by the applicant’s expert witnesses’ (para 22). Therefore, the amicus agrees that women are predominantly the economically disadvantaged spouses in marriages excluding accrual but incongruously, inter alia, requests ‘or other empirical research’ to be done.

The Minister of Justice and Constitutional Development filed ‘an answering affidavit … to supplement the arguments raised by Mrs G in her founding affidavit and assist the court in establishing the views of the Department on the relief sought by Mrs G and the proposed remedy’ (para 17).

‘The Minister points out that parties in favour of extending the judicial discretion to marriages out of community of property with the exclusion of the accrual system post the commencement date of the [Matrimonial Property Act 88 of 1984 (MPA)], advanced the following arguments:

i           Women cannot be allowed to contract themselves and their children into poverty;

ii          Women entering into an antenuptial contract with an express exclusion of the accrual system are seldom making an “informed choice”;

iii          There is a power imbalance between the parties;

iv         Our law recognises the imbalance between other contracting parties, such as employer and employee and has legislated to protect the weaker party’.

The aforesaid arguments are convincing. A marriage contract excluding accrual is a commercial bargain for the economically more active spouse (usually the husband) resulting in the financial and social impoverishment of the economically disadvantaged spouse usually the wife. Hence the justification for the court’s orders.

The Minister recorded nine grounds by parties opposing the extension of the time-bar beyond 1 November 1984 (para 19). Significantly, there is no ground that women are not predominantly the economically disadvantaged spouses. A ground raised was: ‘it has never been the object of the law to protect the foolish’. This ground is arguably invalid, but it does demonstrate that it is usually the women who foolishly conclude the contract excluding accrual.

The amicus raised numerous objections to declaring the cut-off date in s 7(3)(a), unconstitutional. The court dealt with and rightly disagreed with the objections. There is ample evidence that generally speaking women are in a ‘weaker bargaining position than men’. ‘The wide manifestation of women as economically disadvantaged as indicated in the experts’ report, belies the amicus’ submission that recent changes in women’s circumstances render the relief provided in s 7(3)(a) of little consequence’ (para 42). The amicus submitted that a ‘maintenance claim negates the necessity of a remedy akin to what is currently afforded by section 7(3)(a) of the MPA’. The court rightly disagreed and commented: The difference between the nature of the two claims ‘renders this submission nugatory.’

‘The amicus … endeavours to provide a “practical perspective and approach from practitioners who deal with the pre- and post-divorce financial consequences as part of their practices on a grassroots level”’ (para 22).

Yes, the coal face is indeed important, and I provide three relevant grounds:

• In the years till my retirement in February 2014 in which I acted either for the husband or wife in s 7(3) divorce cases, in every case, the wife was the economically disadvantaged spouse seeking a redistribution order. I am sure my practice was the norm and that during the past nine years there has been little change as gender imbalance still persists.
• A research of reported divorce cases involving s 7(3) claims will likely reveal that in each case (save for Kirkland v Kirkland [2005] 3 All SA 353 (C)) the wife was the economically disadvantaged party who sought a redistribution order. In the Kirkland case the husband sought a redistribution order because he had donated to his wife assets resulting in her net asset value being far greater than his at the termination of the marriage.
• For about 28 years that I executed antenuptial contracts I found that discussions became unpleasant when the male always insisted on excluding the accrual system. Invariably she would agree because she loved him, she wanted to marry him and have a family, she was disadvantaged because of the unbalanced economic, social, and sexual power dynamics and she found commercial bargaining unpalatable. ‘In my experience, women shy away from confrontation about money’ (Magda Wierzycka Magda: My Journey (Cape Town: Penguin Books 2022)). Ms Wierzycka has been described as ‘South Africa’s most successful businesswoman’ (Penguin Random House South Africa ‘Magda’ (www.penguinrandomhouse.co.za, accessed 31-3-2021)).

I authored an article titled ‘Polygamy, other personal relationships and the Constitution’ 1994 (Dec) DR 914 in which I contended: ‘Women are less equal than men.’ Sadly, the inequality and its negative financial consequences particularly for women who are married excluding the accrual system still exists.

Notwithstanding that there has been progress in the emancipation of women (albeit too slow) exploitive patriarchy and chauvinism is still dominant and will not change until there is a change in social attitudes, which includes an unlikely change in unconstitutional, unequal and unfair discriminatory religious teachings and cultural practices that contribute to the subjugation of women to an inferior sub-ordinate status and continues to add to the disparity and unbalanced economic, social and sexual power dynamics. Consequently, generally speaking, wives are still the victims of domestic enshacklement ,  disempowerment and financial bondage.

In many societies, including our own, women continue to be socially and financially impoverished based purely on their sex. The insidious effect of unequal treatment and unfair gender discrimination is still suffered by women and they are still marginalised in every walk of life, most notably:

• The workplace: ‘For women to succeed, cultural stereotypes and systemic biases needs to be challenged … In that they continue to prevent women from living up to their career potential’. (Silke Colquhoun ‘Earth 2022’ Business Day).

In Mashilo and Another v Commissioner of South African Revenue Services (LC) (unreported case no JS 108/18, 22-8-2022) (Sethene AJ) the court ordered the dismissal of the applicants (two single mothers) unfair and ordered that the applicants are retrospectively reinstated as SARS employees. Sethene AJ in his judgment commences his judgment by saying: ‘The burden of womanhood is a daily struggle encountered by women in all walks of life. Courts should not be meek and gentle when confronted with instances that have all the traits of any attempt to keep women subjugated in any form at workplaces’. This could also be said of land reform and in marriage.

• In land reform: ‘Many days and nights were dedicated to hearing stories from elderly women residing in rural KwaZulu-Natal who told of their exclusion and arbitrary eviction from land in the absence of a son, husband, or brother. I came to learn of the pervasive patriarchal practices that keep women as second-class citizens on decisions about land’ (Bulelwa Mabasa My Land Obsession: A Memoir (Johannesburg: Picador Africa 2022)).
• In marriage: The report and the judgment and hopefully my article is testimony to the classic comment: ‘The feminisation of poverty is seen in its starkest form in marriage’ (Professor June Sinclair, former Dean of the Law Faculty and former Vice-Principal and Deputy Vice-Chancellor at the University of the Witwatersrand). The choice of excluding accrual is a retrogressive Middle Ages enactment and flies in the face of the enlightened rationale for the introduction of s 7(3) dealt with by the court (paras 44 to 48). It is unjust, against public policy and unconstitutional that a party be allowed to enter into the intimate partnership of marriage, which will not give rise to a patrimonial claim on its termination. Hence the justification as envisaged in s 172(1)(b) of the Constitution for just and equitable legislative intervention for financial relief in terms of s 7(3)(a) to the economically disadvantaged party still being predominantly the wife in a marriage excluding accrual.

The belief of the ‘Smart Alec’ (note the different spelling) that he has concluded a commercial bargain with his ‘foolish fiancé’ by excluding accrual will evaporate when the CC hopefully confirms the court’s order set down for hearing on 10 May 2023.

The author, in dealing with universal partnerships cites cases from co-habitation relationships (de facto marriages) states, ‘there is no reason why universal partnerships should not be applicable to marriages out of community of property where the accrual system is not applicable’ and that perhaps it should be codified. This argument is interesting. However, no reasons are advanced why a universal partnership in which financial relief is granted to the economically disadvantaged party, usually the de facto wife, should be the remedy as opposed to the remedy of the severance of the cut-off date in s 7(3)(a). In both cases the grounds for financial relief are effectively the same. The universal partnership argument is not an issue before the CC and it is not a reason for the CC not to confirm the court’s order. Significantly the author recognises the need for legislative intervention to grant financial relief on the termination of a marriage excluding accrual, to the economically disadvantaged party, irrespective of the gender of the party and without the need for any further research or ‘various interest groups should be allowed to participate as amicus’.

Conclusion

The divorce courts discretion to transfer assets as per the Divorce Act is constitutional (paras 49 to 62). With respect, the issues are not complex, there is no need for any further research of any nature whatsoever to be done or for various interest groups to participate as amicus. The judgment of the court is enlightened, sound, and well-reasoned. In the interests of justice, equality, and finality the CC should confirm the court’s orders of unconstitutionality in conformity with our constitutional jurisprudence.

Alick Costa BCom LLB (Wits) is a retired legal practitioner in Johannesburg.

This article was first published in De Rebus in 2023 (May) DR 26.