The Durban High Court declared section 7(1) of the Recognition of Customary Marriages Act inconsistent with the Constitution
Victory for equality in customary marriage judgment
Section 7(1) of the Recognition of Customary Marriages Act, 1998 provides that the proprietary consequences of a customary marriage entered into before the commencement of this Act (15 November 2000) continue to be governed by customary law whereas in terms of Section 7(2) a customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage.
In Gumede v President of SA and others, Elizabeth Gumede, represented by the Legal Resources Centre, succeeded in having section 7(1) of the Recognition of Customary Marriages Act declared inconsistent with the Constitution in the Durban High Court (in that it perpetuated discrimination in respect of customary marriages entered into before November 2000). Gumede was a party to a divorce action in respect of her marriage under customary law in 1968 and which failed to place before the court the proprietary consequences of the dissolution of the customary marriage. Under the Recognition Act, only marriages after November 2000 grant women proprietary consequences on dissolution. Thus women such as Gumede, who married prior to the date of commencement of the Recognition Act, had their affairs governed by Codes of Zulu Law, and could not acquire the benefit of sections 7(2) and (3) of the Recognition Act, which regards a customary marriage entered into after November 2000 as a marriage in community of property and of profit and loss between spouses.
‘It is a significant judgment for the majority of the women that we represent as it enables them to claim security of tenure and the attendant patrimonial benefits,’ says Sharita Samuel, of the Legal Resources Centre, adding the judgment ‘gives substance to the equality provision in a most meaningful way’.