Legal victory for Zulu women

2008-12-08 00:00

Women in African customary marriages who divorce will no longer automatically join the “homeless statistics and maintenance court queues begging for what was rightfully earned during their marriages”.

In terms of a judgment handed down by the Constitutional Court yesterday they will be protected and given the legal authority to assert their claims for community of property like women and men of all other races in South Africa.

This was said yesterday by Sharita Samuels of the Durban Legal Resources Centre.

She welcomed the ConCourt’s decision upholding the recent findings of Judge Leona Theron in the Durban High Court that women are unfairly discriminated against in terms of legislation and codes governing Zulu law in KwaZulu-Natal that deem the man (or head of the family) to be the owner of all family property.

Under scrutiny was the case of pensioner Elizabeth Gumede, who, after a divorce from her husband Amos — to whom she was married under customary law for 40 years — stood to lose everything.

The couple have four children and acquired two properties during their marriage, one in Umlazi (where she lives) and another at Adams Mission, where he stays.

In court papers, Gumede said she has nowhere else to live and survives on a pension and contributions from her children.

She complained that the matrimonial property laws to which she was subject because of her customary marriage discriminated against her on grounds of gender and race because she is an African woman.

In June, Theron declared the relevant provisions of the Recognition of Customary Marriages Act, the Natal Code of Zulu Law Proclamation R151 of 1987 and the KwaZulu Natal Act on the Code of Zulu Law 16 of 1995 to be inconsistent with the Constitution and therefore invalid, but referred the judgment to the ConCourt for confirmation.

Samuels said the ConCourt yesterday held that the provisions in question are indeed discriminatory on the grounds of gender as only women in customary marriages are subject to these unequal consequences.

“I am very pleased with the judgment and for my client as well. She has now been provided with the support of the law that will assist her to claim her share of the community of property and assert her right to her home and maintenance in her old age,” Samuels said.

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