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SECTION 7(1) OF THE RECOGNITION OF CUSTOMARY MARRIAGES ACT DECLARED UNCONSTITUTIONAL

 

Case: Ramuhovhi and Others v President of the Republic of South Africa and Others (CCT194/16) [2017] ZACC 41 (30 November 2017)

 

The Constitutional Court, in the Ramuhovhi and Others v President of the Republic of South Africa and Others, has confirmed the Limpopo High Court decision that section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 is unconstitutional.

 

Section 7(1) provides that “the proprietary consequences of customary marriages entered into before the commencement of this Act continue to be governed by customary law”. In other words, that wives who entered into customary marriages before the Act was passed have no marital property rights.

 

FACTS:

 

Netshituka, who died in 2008, had entered into polygamous marriages with three women and two civil marriages to two other women. One of the civil marriages was terminated by divorce in 1984 and the other civil marriage, to Munyadziwa, declared null and void by the Supreme Court of Appeal in 2011. Munyadziwa claimed that she later concluded a customary marriage with the deceased.

 

The deceased left a will and named Munyadziwa as the Executrix of the estate. The will referred to her as a wife married in community of property. In terms of the will all the wives and the Deceased’s children were to receive certain benefits from the deceased’s “half share”.

 

The major asset was immovable property called Why Not Shopping Centre. Munyadziwa was the registered owner of an undivided half share in the immovable property. The deceased’s children challenged the constitutional validity of section 7(1) on the basis that it unfairly excluded their mothers from ownership of the estate amassed by the deceased and also asked the court to declare Munyadziwa’s half share invalid.

 

The court found that section 7(1) of the Act was discriminatory on the basis of gender, race, and ethnic or social origin as it perpetuates inequality between husbands and wives in pre-Act polygamous marriages.  It held that there was no justification for this discrimination and therefore section 7(1) was inconsistent with the Constitution.

 

The court ordered Parliament to change the legislation within 24 months, however in the interim, the remedy of this legislative defect would be that husbands and wives in pre-Act polygamous marriages must share equally in the right of ownership, management and control of the matrimonial property.

 

THE EFFECT OF THE JUDGMENT:

 

Husbands and wives in pre-Act polygamous marriages have joint and equal ownership in respect of all house property and are to jointly act in the best interest of the family unit constituted by the house concerned. They also have joint and equal ownership of all family property and are to act jointly in the best interest of the whole family constituted by the various houses. Each spouse is however to retain exclusive rights to their own person property.

 

Compiled By:  PHINDILE MDLULI (Associate) (Litigation Department) (PMB Office)

E-mail:  phindilem@tmj.co.za

Tel:  033 341 9100