Court comes to rescue of women in polygamous marriages before 1998 Act

30 November 2017 - 12:45
By Ernest Mabuza
Gavel on the auction block. File photo.
Image: Gallo Images/Thinkstock Gavel on the auction block. File photo.

The Constitutional Court has confirmed that a law which governs matrimonial property in customary marriages‚ which discriminates against certain categories of women‚ is unconstitutional.

Section 7(1) of the Recognition of Customary Marriages Act (RCMA) of 1998 provides that wives who entered into customary marriages before the Act was passed do not have marital property rights.

In this case Musenwa Netshituka‚ who died in 2008‚ had entered into polygamous customary marriages with three women and two civil marriages with two other women.

One of the civil marriages‚ to Martha Netshituka‚ was terminated by divorce in 1984 while another civil marriage to Munyadziwa Netshituka in 1997 was declared null and void by the Supreme Court of Appeal in 2011. Munyadziwa claims she later concluded a customary marriage with Musenwa.

The deceased left a will in terms of which Munyadziwa Netshituka‚ whom the will referred to as a wife married in community of property‚ was named as executor of the estate.

Munyadziwa‚ the other wives and all of the deceased’s children were to receive certain benefits from Musenwa’s half share of the joint estate. The Constitutional Court said the reference to a joint estate stemmed from an apparent belief that the deceased's marriage to Munyadziwa was in community of property.

The major asset in the deceased’s estate was immovable property upon which a business called the Why Not Shopping Centre is located. Munyadziwa is the registered owner of an undivided half share of this property.

Two biological children‚ whose mothers had entered into the polygamous marriage‚ launched the constitutional challenge to the court.

They argued that due to the application of Section 7(1) of the RCMA‚ their mothers were excluded from ownership of the estate amassed by Musenwa.

The high court in Thohoyandou agreed with them last year‚ and so did the Constitutional Court on Thursday.

In a unanimous judgment written by Justice Mbuyiseli Madlanga‚ the court said the effect of section 7(1) was that it perpetuated inequality between husbands and wives in the case of marriages entered before the 1998 Act.

“The situation of wives in pre-Act polygamous customary marriages is one of lack of ownership and control of property within the marriage.

“In new polygamous customary marriages‚ the proprietary regime is either: governed by a court-sanctioned contract in the conclusion of which wives participate as equal partners with the husband; or out of community of property and of profit and loss‚” Madlanga said.

He said this discrimination limited the right to human dignity of wives in pre-Act polygamous customary marriages. Madlanga gave Parliament 24 months to remedy the defect in the legislation.

He said pending the change in the legislation‚ husbands and wives whose polygamous customary marriages were concluded before the Act must share equally in the right of ownership to family property.

The court said its order did not invalidate a winding up of a deceased estate which had been finalised or the transfer of marital property that had been effected.