FANTASTIC START TO WOMEN’S MONTH!

High Court victory for women in polygamous marriages.

At the beginning of August a section of the law dealing with the recognition of customary marriages has been ruled by the Limpopo High Court as being unconstitutional.

Joseph Netshituka was in a civil law marriage with Joyce Netshituka and in customary marriages with three other women. All of the three customary marriages were entered into before 1998, which means that according to the Recognition of Customary Marriages Act 120 of 1998 (“the Act”), polygamous customary marriages entered into prior to 1998 are not considered to be that of in community of property.  Therefore, land that Joseph acquired in Limpopo in 1991 was only in his and Joyce’s names as they were married in community of property according to civil law. This particular piece of land was sold in 1999, but Joseph re-acquired it in 2002.

The children of three of Joseph’s customary wives, who passed away, argued in the Limpopo High Court that it was unconstitutional to not recognise the customary marriages as being in community of property because they were entered into prior to 1998. Their parents were married before the legislation where their mothers had no right to their husband’s property. This therefore left the children in the cold, as only their siblings whose mother was married in terms of civil law, were allowed to inherit.

Acting Judge A Lamminga referred to these as “old” polygamous customary marriages and further said that wives who entered into these “old” marriages had no claim to their husband’s assets, including property, which were acquired during the marriage. It was argued in Court that women who are affected by the now invalid provisions are mostly poor, older and live in the rural areas of our country. Neither these women, nor their children may inherit anything after the death of their husbands. Acting Judge Lamminga further remarked that women who entered into the “old” marriages were still being excluded from benefiting from their husband’s property – this left the women and their children particularly vulnerable. The Judge said that this discriminating provision should not be allowed to remain on South Africa’s statute books.

The High Court heard the argument of the children and agreed with them that Section 7(1) of the Act “discriminates unjustifiably against women in polygamous customary marriages on the basis of gender, race and ethnic or social origin and is thus inconsistent with the constitution and must be declared invalid”.  The Judge furthermore held that “until such time that legislation is passed to govern the proprietary consequences of customary polygamous marriages that occurred before the Act was passed, the wives who are parties to such marriages shall have joint and equal rights of management and control over and in the marital property of their husbands.” In conclusion Judge Lamminga added: “The recognition of the equal worth and capacity of all partners in customary marriages is well overdue and it should not be delayed any further.”

This ruling is a massive legal victory for women who are in polygamous customary marriages and is definitely an exciting start to Women’s Month!

Compiled by: Annerine du Plessis

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)