On 30 November 2017 at 10h00, the Constitutional Court handed down judgment in an application for confirmation in terms of section 172(2)(a) of the Constitution of the order made by the High Court of South Africa, Limpopo Local Division, Thohoyandou (High Court) declaring section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 (RCMA) inconsistent with the Constitution and invalid in that it discriminates unfairly against women in polygamous customary marriages entered into before the commencement of the RCMA (pre-Act marriages) on the bases of (a) gender and (b) race, ethnic or social origin.

Section 7(1) of the RCMA provides that the proprietary consequences of customary marriages entered into before the commencement of the RCMA continue to be governed by customary law.  In Gumede (born Shange) v President of the Republic of South Africa, the Constitutional Court declared the section invalid insofar as it relates to de facto monogamous customary marriages, but left open whether section 7(1) was constitutionally valid insofar as it applies to polygamous customary marriages.  The effect of this was pre-Act marriages continued to be governed by customary law; whilst post-Act polygamous marriages would automatically be out of community of property.  The High Court held that section 7(1)’s differential treatment of the proprietary consequences of pre- and post-Act marriages was unconstitutional.

The applicants are the biological children of Masewa Joseph Netshituka (the Deceased), who passed away on 4 January 2008.  During his lifetime, the Deceased entered into polygamous customary marriages with Tshinakaho Netshituka (Tshinakaho), Masindi Netshituka (Masindi) and Diana Netshituka (Diana).  He also entered into civil marriages with Martha Mosele Netshituka (Martha) and Munyadziwa Joyce Netshituka, the Fourth Respondent.

The First Applicant is the child of Tshinakaho and the Second Applicant is the child of Masindi.  Tshinakaho passed away on 9 November 2011 and Masindi passed away on 16 April 1995.  It was submitted to the High Court that Diana was deceased by the time this matter was heard in the High Court.  The Deceased’s marriage to Martha was terminated by divorce on 5 July 1984.  The civil marriage between the Fourth Respondent and the Deceased, which took place on 17 January 1997, was declared null and void by the Supreme Court of Appeal in 2011 due to the fact that the Deceased was a party to extant customary marriages to Tshinakaho and Diana at the time of the civil marriages.  However, the Fourth Respondent submits that she later married the Deceased in a customary marriage.

The Deceased left a will in which the Fourth Respondent was named as one of the beneficiaries and the executrix of the estate.  This estate is the Third Respondent.  In the will, the Deceased referred to Tshinakaho as his first wife, Diana as his second wife and to the Fourth Respondent as his third wife.  He also said that the Fourth Respondent is his wife to whom he is married in community of property.

The Supreme Court of Appeal declared the last will and testament executed by the Deceased to be valid.  In the will, the Deceased bequeathed his “half share of the joint estate” to his respective wives, including the Fourth Respondent, and all his children.  By the time the case at hand was heard in the High Court, all of the previous wives of the Deceased except the Fourth Respondent and most of his children had passed away.

The Fourth Respondent is the registered owner of an undivided share in a fixed property upon which a shopping centre called the Why Not Shopping Centre is located.  There is a dispute between the Fourth Respondent and the Applicants about the rightful ownership of this property.

In the Constitutional Court, the Applicants argued that, due to the application of section 7(1) of the RCMA (as it currently applies to customary polygamous marriages) and applicable Venda customary law, their mothers were excluded from ownership of the estate amassed by the Deceased.  They argued that the order made by the High Court should apply retrospectively to estates where a polygamous marriage has been terminated by death if the estate has not yet been finalised.

The amicus curiae, Women’s Legal Centre Trust, argued that customary law leaves women in pre-Act polygamous customary marriages poor and dependent.  Regarding the remedy, they argue for the widest protection that can be afforded in the interests of justice.

There was also an application for leave to intervene by Ms Thokozani Thembekile Maphumulo.  She became aware of this case following the High Court judgment.  In the alternative, Ms Maphumulo sought to be admitted as an amicus curiae.  She is the second wife in a polygamous customary marriage with Mr Musawenkosi Maphumulo, who died on 28 October 2013.  She lives with her daughter by a previous relationship and two grandsons in the home she occupied with her late husband.  Only her late husband’s name appears on the property’s title deed.  Ms Maphumulo submitted that the only reason her name was not also on the deed was because of discriminatory laws at the time of registration which prevented black women from owning property.  In terms of his last will and testament, Ms Maphumulo’s late husband bequeathed his entire estate to Mr Simiso Maphumulo, his eldest son by his first wife.  The estate includes Ms Maphumulo’s home.  Mr Simiso Maphumulo has commenced a legal process to evict Ms Maphumulo from her home.  Ms Maphumulo seeks an order that would protect (1) estates that have not been wound up, (2) estates that have been wound up, but where the heirs were aware that section 7(1) of the Recognition Act was being challenged, and (3) the home of a wife by permitting a wife to approach a court to reclaim her home even if the right to the home had already been transferred.  Mr Simiso Maphumulo is opposing the intervention application and the relief sought by Ms Maphumulo.

The Third and Fourth Respondents do not oppose the declaration of invalidity and ask this Court to confirm the entire order of the High Court.  They object to the requests of the Applicants, amicus curiae and Ms Maphumulo to change the order.

The Court, in a judgment written by Madlanga J (Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J concurring) found that section 7(1) of the RCMA  discriminates against women in pre-Act marriages on the listed grounds of gender and marital status.  Section 7(1) was found to limit the right to human dignity and the right not to be discriminated against unfairly.  The infringement of these rights was found not be justifiable in terms of section 36 of the Constitution.

On remedy, the Court considered the appropriate relief to be a suspension of the declaration of invalidity accompanied by interim relief.  It found that this twin relief has the effect of granting immediate succour to the vulnerable group of wives in pre-Act customary marriages whilst also giving due deference to Parliament.  The interim relief given is that a husband and his wives in pre-Act polygamous customary marriages must share equally in the right of ownership of, and other rights attaching to, family property, including the right of management and control of family property; and a husband and each of his wives in each of the marriages constituting the pre-Act polygamous customary marriages must have similar rights in respect of house property.

Regarding the retrospective effect of the declaration of invalidity, the Court held that its order must be as extensive as possible but not affect estates that have been wound up or transfers that have taken effect.  Its order therefore does not invalidate a winding up of a deceased estate that has been finalised or the transfer of marital property that has been effected.  However, this does not apply to any transfer of marital property where, at the time of transfer, the transferee was on notice that the property concerned was subject to a legal challenge on the grounds upon which the applicants brought the challenge in this case.