The name Agnes Sithole is now imprinted in South Africa’s law books after the 72-year-old housewife from Pinetown in Durban scored a significant legal victory that gives financial security to about 400 000 black women in South Africa. Under apartheid laws, these women were automatically deemed married out of community of property.
So egregious is the offending law that KwaZulu-Natal Deputy Judge President Isaac Madondo said in his judgment that it should not be permitted to remain on the statute books any longer.
“All marriages of black persons concluded out of community of property under sections of the Black Administration Act (of 1927) before 1988 are hereby declared to be in community of property. The recognition of the equal worth and dignity of all black couples of a civil marriage is well overdue and no case has been made out why it should be delayed any further,” he said.
Madondo said he would not “limit the order” by suspending the invalidity to allow Parliament to rectify the legal situation by amending the existing law, because the relevant minister “has since 1994 had an opportunity to check the legislation for pitfalls” and has failed to do so.
The case presented by the Legal Resources Centre (LRC) on behalf of Sithole – and thousands of others in a similar predicament – and the Commission for Gender Equality focused on the Matrimonial Property Act of 1984 that, it was argued, perpetuated repealed sections of the Black Administration Act.
Contributions to the marriage
The LRC’s Sharita Samuel explained that Agnes and Gideon Sithole married 50 years ago. “At the time, all African couples were married under Section 22(6) of the Black Administration Act and were automatically out of community of property.
“During the course of their marriage, Ms Sithole worked hard to support and elevate her family, and her four children are fiercely loving and protective of their mother.
“In addition to bearing all the responsibility for housework and child rearing, Ms Sithole supported her husband’s business as a project manager. She also ran her own clothing business, which paid for her children’s education, putting all four through private school and university (including terms of study abroad).
“Her children have grown into successful adults with their own careers and families, and Ms Sithole continues to provide the same love and support as a grandmother as she did as a mother.
“All of Ms Sithole’s income was used for the benefit of her family and the household, and her contributions not only saved Mr Sithole large sums of money but also increased the value of his estate.”
Samuel said the relationship soured about two years ago. Sithole sought legal advice because she was facing impoverishment in her old age, with her husband laying claim to all of the family assets, including their home, which he was intent on selling.
It was then she discovered that she was married out of community of property, and her husband did not need her consent to sell the family property. Her confusion over her marital regime was understandable, Samuel said.
She explained that while, in 1988, legislative amendments permitted black couples to change their marital regime, it was only possible within a two-year period and with the consent of both spouses.
“Having heard of the legislative changes from their community, Ms Sithole and her husband incorrectly believed this automatically changed their marital property regime to in community of property. In fact, their bank also acted on this information and required Ms Sithole’s signature on Mr Sithole’s financial contracts.
“In reality, all these laws maintained the default marital property regime of out of community. This has left Ms Sithole, and the estimated 400 000 women like her, vulnerable to this day. In fact, the Commission for Gender Equality states that there is no evidence that any of those affected used the 1988 amendment laws to change their marital property regimes.”
Gender and race discrimination
Advocate Geoff Budlender said this was discrimination on the grounds of gender and race, and that the consequences still haunt older black women. The default position for all other married couples is in community of property, except for black couples married before 1988, he said.
Samuel said, “Evidence demonstrates that women traditionally bear greater responsibility for housework, childbearing and rearing, are less likely to be employed and, even if they are employed, usually earn less than men.
“Black women earn even less than their white counterparts because historically, black women in South Africa had far fewer opportunities to obtain financial security through paid work.
“For women who render unpaid contributions to their marriage and families, financial equality is somewhat easier to attain if they are married in community of property because the assets acquired during the marriage fall into the joint estate and the woman automatically becomes co-owner of those assets. This, to some extent, reciprocates the unpaid labour rendered by women during the course of their marriages.”
She said that when the default position is out of community of property, the assets only accrue to the husband’s estate and “many women have been forced out of their homes” because of this.
Imbalance of power
While the offending 1927 legislation gave couples the option to marry in community of property, the LRC could not find any evidence that the apartheid government had notified people of this right. “During apartheid, black couples had even less access to the information. There was also a requirement of consent, which posed an obstacle. Men would not want to water down their rights.
“With limited access to money, formal education and employment opportunities, there is little evidence of women having the power or standing to obtain the consent of their husbands to change their marital property regimes.
“Even if couples were properly advised of the amendments to the law, the gendered nuances of unequal access to resources prevented the equity of arms essential to negotiate the desired change.”
The legislative amendments over the years have been “woefully inadequate” to rectify the situation. The Divorce Act, which allows for a court to order an “equitable distribution of assets” between spouses married out of community of property, is not useful in this instance.
“This remedy is only available on divorce and does not address the discrimination women like Ms Sithole face during the course of their marriages. Forcing a woman to obtain a divorce in order to acquire ownership or control of the matrimonial property and essentially to achieve her right to equality, would be intolerable.”
Samuel said the LRC was committed to protecting and advancing the rights of black African women to acquire, control and own land – or any other asset – like any other South African citizen.
The Constitutional Court still has to ratify Madondo’s order.
“Our client is relieved and overjoyed. She has celebrated with her children. She is now praying that the Constitutional Court application will go well.”