Ramuhovhi and Another v President of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Citation: 2016 (6) SA 210 (LT)

Ramuhovhi and Another v President of the Republic of South Africa and Others
2016 (6) SA 210 (LT)

2016 (6) SA p210

Citation	2016 (6) SA 210 (LT)
Case No	412/2015
Court	Limpopo Local Division, Thohoyandou
Judge	Lamminga AJ
Heard	August 1, 2016
Judgment	August 1, 2016
Counsel	S Cowen (with N Ntuli) for the amicus curiae (J Williams assisted in preparing heads of argument)

Flynote : Sleutelwoorde D

Constitutional law — Legislation — Validity — Recognition of Customary E Marriages Act 120 of 1998, s 7(1) — Having effect that polygamous customary marriages entered into prior to commencement of Act, as well as their proprietary consequences, still regulated by customary law — Venda customary law providing that wives in polygamous customary marriages having no rights in or control over marital property — Provision unjustifiably discriminating against women in polygamous customary marriages on basis of gender, race and ethnic or social origin — Provision unconstitutional F — Interim relief to be granted pending enactment of legislation by Parliament governing matrimonial property regimes in respect of old polygamous customary marriages — In interim, wives in such marriages to have joint and equal rights of management of and control over marital property.

Headnote : Kopnota

G Section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 (the Act) provides that '(t)he proprietary consequences of a customary marriage entered into before the commencement of this Act [ie 15 November 2000] continue to be governed by customary law'. The provision was declared unconstitutional by the Constitutional Court in the case of H Gumede v President of the Republic of South Africa and Others 2009 (3) SA 152 (CC) (2009 (3) BCLR 243; [2008] ZACC 23) for the reason that it unfairly discriminated against women. However, such order of unconstitutionality was limited to monogamous marriages, such that polygamous marriages entered into before the commencement of the Act [old polygamous customary marriages], as well as their proprietary consequences, were still regulated by customary law. The court in this matter revisited the I section and addressed this disparity.

In addition to a civil marriage with the fourth respondent, the deceased had entered into, before the commencement date of the Act, various polygamous customary marriages. The applicants were the biological children born of such polygamous unions. Such unions, as well as the proprietary J consequences thereof, were, by virtue of the provisions of s 7(1) of the Act,

2016 (6) SA p211

regulated by Venda customary law. The applicants submitted that such law A excluded their mothers from ownership of the estate amassed by the deceased — it was common cause that Venda customary law did not vest in the hands of the wives in polygamous customary marriages any rights in or control over marital property. They argued that the subsection was discriminatory, and caused prejudice to the deceased's wives and children. They sought an order declaring s 7(1) of the Act to be inconsistent with the B Constitution, invalid and that an old polygamous customary marriage produced the legal consequences of a marriage in community of property.

Held

The provisions of s 7(1) of the Act unjustifiably discriminated against women in old polygamous customary marriages on the basis of gender, race and ethnic or social origin, and were thus inconsistent with the Constitution and had C to be declared invalid. (Paragraphs [46] and [75] at 224G – 225A and 233H.)

In order to ensure effective protection of the rights of women in polygamous customary marriages, a direct approach was preferable to the piecemeal, slow development of customary law, which direct approach would retain any positive developments in the living customary law. D (Paragraphs [52] and [75] at 226F – G and 233I.)

The persons in need of protection could not suffer the burden of unfairness and discrimination any longer and an interim remedy was necessary in order to extend protection to them pending the required legislative processes. (Paragraphs [53] and [75] at E 227B – D and 234A.) The principles underpinning such interim relief were as follows (paragraphs [63] and [75] at 230D – F and 234C – E):

•

The parties to old polygamous customary marriages had to enjoy equal rights in the matrimonial property.

•

It had to be ensured that the rights already provided for in terms of the Bill of Rights, the Act, the Matrimonial Property Act 88 of 1984 and any other legislation could find application and be exercised. Furthermore, F any rights and protection of women in old polygamous customary marriages provided for in terms of living customary law should not be removed, but applied.

•

The core nature of polygamy had to be retained, in that the rights of the parties to old polygamous customary marriages had to be qualified to ensure that the rights were exercised for the benefit of the family unit. G Furthermore, the differentiation between family property, house property and personal property had to be retained to promote the sustainability of the family unit.

•

The parties to old polygamous customary marriages had to be provided with an opportunity to approach the court in the event of disputes arising from this order for an order to regulate the matrimonial property regime on a just and equitable basis. H

There was no justification to limit retrospectivity of the order of invalidity, except to the extent that the order was not to affect old polygamous customary marriages which had been terminated by death or divorce. (Paragraphs [69] – [74] and [75] at 231H – 233G and 234F.)

Application granted, and order as set out below made. I

Cases Considered

Annotations

Case law

AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) (2006 (11) BCLR 1255; [2006] ZACC 9): referred to J

2016 (6) SA p212

Alexkor Ltd and Another v The Richtersveld Community and Others 2004 (5) SA 460 (CC) (2003 (12) BCLR 1301; [2003] ZACC 18): referred to A

Bhe and Others v Magistrate, Khayelitsha and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) SA 580 (CC) (2005 (1) BCLR 1; [2004] ZACC 17): applied

Campus Law Clinic, University of KwaZulu-Natal v Standard Bank of South Africa Ltd and Another 2006 (6) SA 103 (CC) (2006 (6) BCLR 669): referred to B

Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) (2004 (7) BCLR 735; [2004] ZACC 14): referred to

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, and Others 2009 (4) SA 222 (CC) (2009 (2) SACR 130; 2009 (7) BCLR 637; [2009] ZACC 8): dictum in para [43] applied C

Ferreira v Levin NO & Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1; [1995] ZACC 13): considered and applied

Gumede v President of Republic of South Africa and Others 2009 (3) SA 152 (CC) (2009 (3) BCLR 243; [2008] ZACC 23): considered and applied D

Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC) (2009 (11) BCLR 1148): referred to

Islamic Unity Convention v Independent Broadcasting Authority and Others E 2002 (4) SA 294 (CC) (2002 (5) BCLR 433; [2002] ZACC 3): dictum in para [12] applied

JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514 (CC) (1996 (12) BCLR 1599; [1996] ZACC 23): dictum in para [15] applied

Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC) (2004 (7) BCLR 775; [2004] ZACC 12): applied F

Mazibuko NO v Sisulu and Others NNO 2013 (6) SA 249 (CC) (2013 (11) BCLR 1297; [2013] ZACC 28): referred to

Minister of Finance and Another v Van Heerden 2004 (6) SA 121 (CC) (2004 (11) BCLR 1125; [2004] 12 BLLR 1181; [2004] ZACC 3): referred to

MM v MN and Another 2013 (4) SA 415 (CC) (2013 (8) BCLR 918; [2013] ZACC 14): considered and dictum in para [43] applied G

Mvumvu and Others v Minister for Transport and Another 2011 (2) SA 473 (CC) (2011 (5) BCLR 488; [2011] ZACC 1): dicta in paras [46] and [49] applied

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39; [1999] ZACC 17): dicta in paras [21] and [29] applied H

Netshituka v Netshituka and Others 2011 (5) SA 453 (SCA): referred to

Nzimande v Nzimande and Another 2005 (1) SA 83 (W): referred to

S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) (1995 (2) SACR 748; 1995 (12) BCLR 1597; [1996] 1 All SA 11; [1995] ZACC 11): dictum I in para [32] applied.

Statutes Considered

Statues

The Recognition of Customary Marriages Act 120 of 1998, s 7(1): see Juta's Statutes of South Africa 2015/16 vol 7 at 4-222.

Case Information

S Cowen (with N Ntuli) for the amicus curiae (J Williams assisted in J preparing heads of argument).

2016 (6) SA p213

An application for an order declaring s 7(1) of the Recognition of A Customary Marriages Act 120 of 1998 to be unconstitutional, as well as certain related relief.

Order

1.

Section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 B is declared inconsistent with the Constitution and invalid.

2.

Until such time as Parliament enacts legislation to govern the matrimonial property regimes of persons who are parties to polygamous customary marriages concluded before the Recognition of Customary Marriages Act 120 of 1998 came into operation, the following regime shall apply to such marriages: C

(a)

The wives who are parties to such marriages shall have joint and equal rights of management and control over and in the marital property as their husbands, and these...