Op-Ed by Sharita Samual and Kathleen Wootton
It is said that well-behaved women seldom make history. The women that change the course of history are those who speak up and oppose the discriminatory laws and practices that seek to oppress and silence them. Elizabeth Gumede, Thokozani Maphumulo, and Agnes Sithole are three women who have cemented their place in South Africa’s legal history and ensured that black women across the country’s rights to land and property are secured. They challenged the tightly woven legislated discrimination perpetuated by apartheid-era legislation such as the Black Administration Act (“BAA”) and eradicated some of the hardships that these laws carried over into democratic South Africa.
The legal trilogy was completed on 24 January 2020 when Justice Masondo of the Durban High Court delivered a judgment in favour of Ms. Agnes Sithole and the Commission for Gender Equality. The court found that the marriage regimes of black women married before 1988 will now be regarded as being marriages in community of property as opposed to out of community of property. The judgment is the third test case filed by the Legal Resources Centre (“LRC”) to advance elderly black married women’s right to marital property. All three applications challenged laws that silently, but legally, obstructed black married women’s access to and control of property accumulated during their marriages – a right that all other South African women could generally enjoy in law. Through three applications over ten years, the LRC, working in tandem with affected women, identified the laws responsible for discriminating against this specific class of women. For the majority of the women, their claims centered on the land and family homes they helped to acquire, build and maintain, alongside their husbands.
These applications sought recognition for black women who had made financial or non-financial contributions through decades of unpaid labour to benefit their husbands, children and extended family households to now legally claim and control their half – share of the assets acquired during their marriages. The intention was to ensure security of tenure, the potential for economic stability and dignity in old age. The judgments also sought to protect women against eviction by their husband’s families, to provide the means to sustain them and their families by growing food on the land they could now own, as well as serving as leverage to pursue further economic well-being for their families.
Land and property in South Africa represent a means to right the wrongs and iniquities of the past. Section 25(6) of the Bill of Rights determines that the State must take reasonable steps to “foster conditions which enable citizens to gain access to land on an equitable basis” and where security of tenure is tenuous due to racially discriminatory laws security of tenure or comparable redress must be ensured. The Constitutional Court has stated that access to land is key to the realization of all other constitutional rights.
Prior to the colonial project, rights to communal land and property resided in nested layers in a complementary and overlapping fashion. Individuals in a household held rights and responsibilities in relation to each other and their place within the family unit, while the household held rights and responsibilities over the land in relation to its place in the broader community. Within this nested structure, women did hold rights to land and property, especially arable land due to their role as food producers. Women enjoyed influence within their households and “their consent was indispensable to all crucial family decisions.”
The colonial and apartheid efforts to determine the content of ‘customary’ laws in African communities gradually erased women’s traditional entitlements to land.” The influence of the English common law doctrine of coverture may also be detected in the way the colonial lawmakers prioritized the voices of male elders when determining the content of customary laws. This resulted in a form of ‘customary’ law that emphasized the figure of the male head of the household, to whom other members owed obedience and who held the sole capacity to own and control property to the exclusion of “the strong rights of wives to the security of tenure and use of land.” This new customary law erased women’s traditional roles and rights to land. This version of customary law was then enforced by colonial and apartheid “[native commissioners] who, applying racially based laws, repeatedly intervened in land allocation processes to prohibit land being allocated to women.” Women were relegated to the status of perpetual minors, owing obedience first to their fathers, brothers and then their husbands and sons.
The set of laws challenged in each of the LRC applications discriminated against a specific class of elderly black married women on the grounds of race, gender, but also significantly, age. The affected women belong to a generation of Black women who were born, raised, (some) formally educated, and married under apartheid – during a time when a plethora of laws actively prevented their access to freedom of movement, education, the right to contract and to land and property.
The subsequent democratic laws intending to rectify this legacy of inequality did not go far enough to protect the women. For example, the default marital regime of marriages out of community of property without accrual persisted for many black women who still bore the onus to apply to the court for an equitable redistribution of property on divorce or defend property rights in succession. The majority of this class of women reside in rural areas with limited financial resources and were forced to endure the indignity of poverty and eviction in old age – while other women in South Africa exercised the right to choose a matrimonial property regime or enjoy the benefit of amendments to the law of marriage intended to achieve equity in marriage.
Ms. Gumede’s husband forbade her from working outside the home but required her to rear their children, grow the food for the family, cook and clean. Ms. Maphumulo was the second wife in a polygamous customary marriage, ran her own tuckshop and contributed to the growth of the marital estate. Ms. Sithole ran a successful business whilst solely carrying the burden of childcare and housework. The responsibilities of home, childcare, lack of formal education and the ‘hut tax’ which forced men to seek work outside the homelands in mines and factories are some of the reasons why Black women have not had adequate opportunity to secure their personal financial security for their old age. The option of a matrimonial regime of community of property is a means to ensure equity on termination of their marriage as opposed to being left homeless and impecunious.
In Gumede, the LRC first obtained Constitutional Court confirmation that monogamous customary marriages entered into before the enactment of the Recognition of Customary Marriages Act (“RCMA”) would be automatically in community of property. This Gumede judgment reversed the default out of community of property regime created by the codified customary law. This application also challenged section 7 (1) of the RCMA – a democratic law intended to recognize the validity of customary marriages and ensure equality between the parties by defining the proprietary consequences. Unfortunately, it did not go far enough and actively excluded Ms. Gumede who married prior to the commencement of the RCMA. This judgment enabled Mrs. Gumede to successfully defend the divorce summons and the eviction proceedings and secure her share of the marital property.
In Ramuhovhi, the LRC bought a claim on behalf of Ms. Maphumulo and the class of women she represented, by applying to the Constitutional Court for a progression from the Gumede judgment to successfully extend the benefit of community of property in favour of widows who were party to customary polygamous marriages. This meant that women who were party to polygamous marriages could now enjoy the same benefits that women in monogamous marriages were granted in the Gumede case. This enabled Ms. Maphumulo to successfully challenge her eviction by her husband’s children.
Should the Constitutional Court confirm Justice Madondo’s order in the Sithole application, women in civil marriages concluded under section 22(6) of the BAA will also enjoy the protection of community of property. This last of the trilogy of LRC cases affects an estimated 400,000 women like Ms. Sithole. It was only upon the breakdown of her marriage and facing her husband’s threat to sell the family home that Ms. Sithole learned that despite our Constitution and the legislative democratic amendments aimed at expanding black women’s access to marital property, that she had no recourse in law, except to divorce and seek an order for equitable redistribution of marital property to protect herself in her old age.
This is because although the Matrimonial Property Act (“MPA”) abolished marital power and allowed parties married either before or after its enactment to change their marital property regimes – it expressly provided that these amendments did not apply to black couples married under section 22 of the BAA. Even in 1988, when the Marriage and Matrimonial Property Amendment Act (“MMPAA”) repealed section 22(6) of the BAA and amended the MPA to permit couples in Ms. Sithole’s position to change their marital regime, it required both parties’ consent and imposed a limited two year window period within which to apply for this change.
Thus, in 2020, apartheid-era laws continued to prevent Ms. Sithole and others like her, from defending their right to land and property. In his judgment, Justice Madondo highlighted that the State had since 1994 “to check the legislation for the pitfalls and to attend to them by amending or repealing the legislation in question.” However, the legislature has time and time again failed to do just that: comprehensively review the legislation governing marital property to identify and address pitfalls. As a result, nearly 32 years after its repeal, section 22(6) of the BAA still blocked Ms. Sithole’s access to land and security of tenure because the MPA maintained the automatic default matrimonial property system of marriage out of community of property for couples married in civil ceremonies under section 22(6) of the BAA.
Under the BAA, community of property was available only to Black women in monogamous civil marriages provided the couple made a joint declaration of their intent to be married in community of property. The option to make this joint declaration is unlikely to have provided much assistance to women as it was not in the husband’s interest to consent to water down his rights. It is also unclear how many Black couples were aware of this provision in the law as there is no evidence suggesting that it was a priority of the apartheid government to inform people of their rights. At the time of their marriage, the Sithole’s priest notified them that as a Black couple marrying in a civil ceremony, marriage out of community of property was their only option. They trusted their priest and did not question this statement.
This trilogy of cases has secured a community of property regime for Black women of this generation, regardless of the date of their marriage and whether it was a customary monogamous or polygamous or civil marriage. This potential to own and control land is intrinsically linked to the power to self-determination and access to decision making structures and dialogues. This assists our path towards a more equal society. The three women bravely challenged the legal reasons why the dignity, security, and peace for this class of women remained a mirage in the face of laws purporting to protect them.Justice Madondo speaks truth to the history of the LRC’s trilogy of cases and declares that “[the] recognition of the equal worth and dignity of all black couples of a civil marriage is well overdue” and that “the judiciary bears the burden of vindicating [Constitutional] rights” to equality and without vindication “harm to constitutional rights…will diminish the public’s faith in the Constitution.” As the learned Justice points out, had the state done its due diligence in the years since democracy, maybe Ms. Gumede, Ms. Maphumulo and Ms. Sithole would not have had to continue to fight against apartheid themselves.