Holomisa v Holomisa and Another (CC) (unreported case no CCT146/17, 23-10-2018) (Froneman J (Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Goliath AJ, Khampepe J, Mhlantla J and Theron J concurring))

By Ropafadzo Maphosa

The Constitutional Court (CC) has often expressed its abhorrence for discriminatory legislation, most of which reared its ugly head during South Africa’s (SA’s) Apartheid history. It is unfortunate that such legislation still exists in our legislative framework, many years after the dawn of the constitutional dispensation. As a result the promise of the new era has not been fulfilled for all. The recent case of Holomisa v Holomisa and Another (CC) (unreported case no CCT146/17, 23-10-2018) (Froneman J (Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Goliath AJ, Khampepe J, Mhlantla J and Theron J concurring)) highlights the effects of the ‘tangled net of post-Apartheid legislation.’

In this case, the CC tackled the discriminatory oddity stemming from s 7(3) of the Divorce Act 70 of 1979, which precludes women married out of community of property under the Transkei Marriage Act 21 of 1978 from the protection of this provision.

Facts and findings

The applicant and the first respondent concluded a civil marriage, which was duly solemnised under the Transkei Marriage Act on 16 December 1995. The marriage took place in Mqanduli, Transkei. The first respondent instituted an action for divorce in the Mthatha Regional Court, averring that the marriage was out of community of property. The applicant denied this in her plea and maintained that her marriage to the first respondent was in community of property.

Both the Mthatha Regional Court and the Eastern Cape Local Division of the High Court, held that the marriage between the parties was in community of property. However, on further appeal, the Supreme Court of Appeal overturned these decisions. It held that the marriage was out of community of property and substituted the order of the Regional Court to the limited extent that the order of division of the joint estate be deleted and that the applicant’s counterclaim was dismissed.

The applicant applied for direct access to the CC for relief, which included, inter alia, the constitutional invalidation of s 7(3) of the Divorce Act to the extent that it does not allow a spouse married out of community of property without having entered into an antenuptial contract (as contemplated in the now repealed s 39 of the Transkei Marriage Act), the right to claim a redistribution of property when the parties divorce.

Section 7(3) read together with s 7(4) and 7(5) empowers a court granting a decree of divorce between persons married out of community of property:

‘(a) … before the commencement of the Matrimonial Property Act [85 of] 1984, in terms of an antenuptial contract by which community of property, … profit and loss and accrual … are excluded; or

(b) … before the commencement of the Marriage and Matrimonial Property Law Amendment Act [3 of] 1988, in terms of section 22(6) of the Black Administration Act [38 of] 1927,’ to order a redistribution of assets where it considers it just and equitable to do so, taking into consideration the contribution, monetary and otherwise, of the parties to the marriage. These provisions were enacted to protect women – married out of community of property – from the potential harsh consequences flowing from such a proprietary regime. However, marriages concluded under the Transkei Marriage Act were precluded from the ambit of s 7(3); thus the court found this differentiation to be irrational and discriminatory as there is no legitimate governmental purpose for the distinction drawn between women in this position in the Transkei and those in the rest of SA.

Several legislative provisions and amendments were passed to ensure that the default proprietary regime for all marriages in ‘South Africa’, regardless of race, would be in community of property, unless an antenuptial contract was entered into. However, due to Transkei’s independence under South African and Transkeian law, such changes were not mirrored in Transkei. The Recognition of Customary Marriages Act 120 of 1998 expressly repealed s 39 of the Transkei Marriage Act, however, the Recognition of Customary Marriages Act only came into operation on 15 November 2000 and moreover, it did not purport to invalidate s 39 of the Transkei Marriage Act retrospectively.

As a result, it is common cause that the marriage in question was indeed out of community of property. Section 39(1) of the Transkei Marriage Act provided that the default proprietary regime for civil marriages solemnised in terms of the Act was out of community of property unless excluded by an antenuptial contract or there was an express declaration in terms of s 39(2) of the Transkei Marriage Act. At the time that the matter was argued, all the parties accepted, that there was no exclusion of the default regime and that the marriage between the applicant and the first respondent was out of community of property.

In the CC judgment, Froneman J observed that the discrimination in this case is a historical remnant from the Apartheid-era, which sought to disadvantage women on the basis of gender, race, ethnicity, marital status, geographic location and socio-economic status. The court held at para 29 that: ‘The intersectional nature of this discrimination compounds the gravity of Parliament’s failure to rationalise the Transkei Marriage Act. Although Parliament did not seek intentionally to continue to discriminate against women in the former Transkei, the effect of its failure to remedy the situation is that the discrimination continues.’ Therefore, direct access was granted to declare s 7(3) constitutionally invalid to the extent that it excludes women in the applicant’s position.

The court ordered that s 7(3) of the Divorce Act be declared constitutionally invalid to the extent that it excludes a spouse married out of community of property who has not entered into an antenuptial contract or an express declaration in terms of s 39(2) of the now repealed s 39 of the Transkei Marriage Act, from its ambit. Furthermore, the declaration of constitutional invalidity was suspended for a period of 24 months to allow Parliament to remedy this defect. During the period of suspension, s 7(3) of the Divorce Act must be read to include marriages entered into under the Transkei Marriage Act without antenuptial contracts as s 7(3)(c).

Ropafadzo Maphosa LLB (UJ) is a Senior Tutor at the University of Johannesburg.

This article was first published in De Rebus in 2019 (March) DR 27.