Major win for black women

2020-01-27 09:18

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Black women married before 1988 now have a stake in their husbands’ assets.

This follows a precedent-setting ruling in the Durban high court on Friday.

KZN Deputy Judge President Isaac Madondo has declared all marriages concluded out of community of property — under a section of the Black Administration Act (BAA) — to be in community of property.

The judgement affects about 400 000 women married under the Act.

Professor Sihawu Ngubane said the judgement is a victory to women because there was lots of conflict with regards to the estate when a partner dies.

The matter was brought by The Legal Resources Centre (LRC) on behalf of Agnes Sithole (72), and the Commission for Gender Equality.

Only Sithole’s husband, Gideon Sithole, opposed it and not the minister of Justice and Correctional Services, who was also cited in the proceedings.

Attorney Sharita Samuel, of the centre, said they were pleased that the court has assisted Sithole and other elderly African women in the same position.

She said this judgement now forms a trilogy with two other judgements which ensure equal financial protection for black women in marriage.

Sithole, of Durban, got married nearly 50 years ago under the Act. She runs a home-based business selling clothes and her earnings were used on the family and household expenses.

Twenty years ago she and her husband bought a property but registered it in his name.

Over the past two years, the couple’s relationship deteriorated, allegedly because he had an affair. He then threatened to sell the property.

When Sithole sought legal advice, she found out that her marriage was concluded under the Act, which means that all the family assets amassed to the husband’s estate exclusively.

Judge Madondo said: “The discrimination against black persons married before 1988 constitutes an inequality which inhibits the enjoyment and exercise of the constitutional rights of a large number of black women in SA.”

He said that the section of the Act relevant to this matter denied thousands of black women protection that is afforded by a marriage in community of property. That exacerbated their vulnerability and rendered them entirely dependent on the goodwill of their husbands, who generally control the bulk of the family’s wealth and assets.

Spouses married under the Act, said the judge, are black and they had been disadvantaged by the racial policies and practices of the past.

“No members of a racial group should be made to feel that they are not deserving of equal concern, respect and consideration and that the law is likely to be used against them more harshly than others who belong to other racial groups,” said Judge Madondo.

He said the law grants protection and benefit to black spouses married after 1988, but not spouses married before 1988.

“The law must be general in its application in that it must apply equally to all and not be arbitrary. In other words, the law must apply impersonally and not to particular people or groups. In essence, the law must apply uniformly in the whole of SA,” he said.

The judge explained the effect of his order, saying that it should not affect marriages that have been terminated by death or divorce before the making of the order.

Read more on:    pietermaritzburg  |  divorce case

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