Customary marriages in the spotlight at ConCourt

2017-05-15 22:29
Constitutional court. (News24)

Constitutional court. (News24)

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Durban - Thokozani Maphumulo lived with her husband Musawenkosi in their home in KwaMashu, in Durban, for 25 years.

Theirs was a customary marriage. She was his second wife. In his will he left his entire estate to his eldest born son from his first wife.

In 2015, two years after he died, she was served with an eviction notice and she became another victim of an unregulated customary marriage system.

On Tuesday, through her lawyers from Durban’s Legal Resources Centre (LRC), she will represent other similar “vulnerable women” in a matter to be argued at the Constitutional Court aimed at righting the wrongs of the past.

Maphumulo has applied to intervene in an important matter decided by the Limpopo High Court which declared as invalid and unconstitutional a section of the Recognition of Customary Marriages Act which regulates the proprietary consequences of “old” customary marriages which were entered into before the Act came into being.

The section dictates that they would continue to be governed by customary law which means the husband owns everything acquired during the marriage.

The Constitutional Court has previously declared the provision unlawful, but only regarding monogamous customary marriages.

In 2016, the Limpopo court ruled that this too should apply to polygamous marriages because the provision “discriminates unfairly against women on the basis of gender, race and ethnic/social origin”.

LRC spokesperson Claire Martens said this still did not go far enough for their client.

“According to the High Court order, wives who are in polygamous customary marriages entered into before the commencement of the Act shall have joint and equal rights of management and control over the marital property until such time as Parliament enacts legislation which governs the matrimonial property regime of such marriages. 

“However, the order was limited retrospectively, as not being applicable to customary marriages which have been terminated by death or divorce before the date of the order,” she said.

“Mrs Maphumulo lived together with her husband at their home in KwaMashu from 1992 until his death in 2013.

“The property was registered in Mr Maphumulo’s name only and after his death, the home was transferred into his son’s name.

“Mrs Maphumulo supports the confirmation of the High Court’s order but seeks to ensure that the order of invalidity protects her and other women who are similarly situated, in that their customary marriages have been terminated by the death of their husband. 

“The question which arises is whether or not Mrs Maphumulo would be entitled to benefit if the Constitutional Court confirms the order of the High Court, or should she risk losing her home of 25 years on the basis that her husband died before the Court could address an unconstitutional law?”

Martens said the LRC was of the view that the court should come to their clients aid by extending the protection of the order to marriages which may have been terminated by death, in certain instances. 

“We submit that the order generally should not retrospectively affect completed transactions, but it should apply to three categories of completed transactions: those made to bad faith transferees; those made in estates that have not been finally wound up; and those that remove a woman’s access to housing.”

Martens said the LRC would also argue that the high court order should be clarified to ensure rights to ownership of property.

“The interim order affords wives joint rights of “management and control ” over the marital property. We submit that should be amended to expressly refer to joint ownership rights to the marital property. Without that addition, there could be confusion about whether the husband and wife are joint owners, or merely joint managers, with ownership still being determined according to customary law.  

“That would defeat the purpose of the section invalid.”


Read more on:    johannesburg  |  culture

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