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Court case: Section of the Matrimonial Property Act, 1984 declared unconstitutional – A S and Another v G S and Another [2020] ZAKZDHC 1

A S and Another v G S and Another [2020] ZAKZDHC 1

A and G were married in 1972 under the provisions of the Black Administration Act, 38 of 1927 (the BAA).  Under section 22(6) of this act all marriages between black people under this act were out of community of property, except in certain limited circumstances.  With the repeal of section 22 by the Marriage and Matrimonial Property Law Amendment Act, 3 of 1988, all existing marriages between black people under the BAA remained out of community of property.  This the opposite from the default position of community of property for marriages under the Marriage Act, 25 of 1961, reflecting the common law position.

A and G’s marriage came under strain in the last few years with A accusing G of extra-marital affairs, while G accused A of not showing him respect as her husband.  A is a devout Catholic and does not even consider divorce as an option.  G expressed an intention to sell their family home.

A brought an application to declare section 21(2)(a) of the Matrimonial Property Act, 88 of 1984 (the MPA), unconstitutional to the extent that it perpetuates the provisions of the BAA in that about 400 000 black women are not protected by community of property in their marriages.  This is the exact opposite of the default position in all other marriages.  A was supported by the Commission for Gender Equality as second applicant.  G is the first respondent and the Minister of Justice and Correctional Services the second respondent.

The court (Madondo DJP) applied the test for unfair discrimination accepted in our courts and held that the perpetuating effect of section 21(2)(a) of the MPA on such marriages to be out of community of property results in unfair discrimination on the basis of race and is therefore unconstitutional. From the date of this order, Chapter 3 of the MPA will apply in respect of all marriages that have not been converted to marriages ‘in community of property’, unless the affected couple has opted out in accordance with the prescribed procedure.  This means that G will need A’s consent to sell the family home.

The judgement will be referred to the Constitutional Court for confirmation.
The court ordered the Minister to pay the costs of the application on the basis that the Minister had since 1996 to trawl through existing legislation and remove unfair discrimination from legislation, but failed to remove this discriminatory provision.

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