Women in polygamous customary marriages to get some relief on property rights

Source: News24, by Nation Nyoka

ohannesburg – A section of the Recognition of Customary Marriages Act has been found to be inconsistent with the Constitution and was declared invalid by the Constitutional Court in Johannesburg on Thursday.

This follows legal action instituted by parties who had argued that they had been unjustifiably discriminated against because they were in Venda customary marriages.

Section 7 (1) of the Customary Marriages Act – which states that customary marriages entered into, are governed by customary law – goes hand in hand with the Venda custom which states that the ownership and control of marital property are reserved solely for husbands.

The court found that the section clashes with the Constitution as it unfairly discriminates against women in polygamous marriages on the basis of gender, race, and ethnic and social origin as it only applies to African women.

Legal Resources Centre (LRC) spokesperson Claire Martens said that the ruling was a huge victory for women who were married within historically patriarchal systems and who were often subjected to the control of male heirs of their spouses.

“Many elderly women who were married in polygamous customary marriages were left without any recourse and were specifically left vulnerable after their husbands passed away or if they were divorced. This was brought to the legislature’s attention in 2008 in [a separate] case but the position was never altered, until now,” explained Martens.

24-month deadline for Parliament

In a statement, the LRC said that the judgment brought some clarity to a previous constitutional case (Gumede v President of RSA) which only factored in the rights of those in monogamous customary marriages.

“The section was declared invalid in an earlier case but only insofar as it related to monogamous customary marriages (those were the facts before the court then). Now this case declares the section invalid as it relates to polygamous customary marriages,” said Martens.

Women married in terms of African customary law will now have joint and equal ownership, as well as management and control over their marital property following Thursday’s judgment.

The section is not applicable to religious marriages.

Parliament has been given 24 months to correct the legislation.