2020 came with a victory for black couples, especially black women who got married before 1988 under the Black Administration Act 38 of 1927 (BAA).
How so? Well, black couples who married before 1988, had their marriages concluded under section 22(6) of the BAA, which meant that the marriage was automatically out of community of property.
History changed its course, however, when a 72-year-old lady, Agnes Sithole, who got married on 16 December 1972 under section 22(6) of the BAA, approached the Durban High Court. She approached the Court on the premises that even though section 22(6) of the BAA was repealed and section 21(1) and 21(2)(a) of the Matrimonial Property Act 88 of 1984 (MPA) does permit couples in her position to change their marital regime, the default marital property regime of out of community of property, which only applied to black couples married before 1988, still remained.
Unsurprisingly, the latter was seen as black women being discriminated upon on the grounds of both gender and race. Another issue that arose from the discrimination was that black women then did not have the right to access property and financial security seeing that their husbands would be the sole and exclusive owners of properties acquired during such marriages, and could use and dispose such properties as they pleased without the wife’s consent.
It was further argued to be discriminating in that the above was not the position for other couples in South Africa who entered into a marriage before 1988. The default position for other couples was that the marriages were automatically in community of property, while the same protection of a marriage in community of property was not provided to black women.
On 24 January 2020 Judge Madondo delivered his judgement in the Sithole matter and ruled that section 21(1) and 21(2)(a) of the MPA is unconstitutional and invalid to the extent that it still maintains and carries out the discrimination created by a section 22(6) of the BAA.
He further ruled that all marriages concluded out of community of property under section 22(6) of the BAA were now declared to be marriages in community of property, and that a spouse in a marriage declared to be in community of property could apply to court for an order that the marriage be out of community of property.
Lastly, Judge Madondo rightly stated that that “…the recognition of the equal worth and dignity of all black couples of a civil marriage is long overdue and no case has been made out as to why it should be delayed any further”.
Victory thus, but with a bittersweet taste.