IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA HELD IN BRAAMFONTEIN
Case No: CCT 23/20 KZN High Court case D12515/2018 In the matter between:
AGNES SITHOLE First Applicant
COMMISSION FOR GENDER EQUALITY Second Applicant and
GIDEON SITHOLE First Respondent
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES Second Respondent
APPLICANTS’ PRACTICE NOTE
A. NAMES OF THE PARTIES AND CASE NUMBER:
1. This information appears above.
B. THE NATURE OF THE PROCEEDINGS
2. Application for confirmation of a declaration of invalidity in terms of section 172(2)(a) of the Constitution, read with rule 16 (2) of the Rules of this Court.
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C. THE ISSUES THAT WILL ARGUED
3. Sections 21(2) and 22(1)(a) of the Matrimonial Property Act 88 of 1984 preserve and perpetuate the racial and gender discrimination against black women which was created by the now repealed sec 22(6) of the Black Administration Act 38 of 1927 (BAA).
4. The impugned provisions breach the right to equality and dignity, and the right of access to housing and health care services.
5. The order of the High Court should be confirmed, and the impugned provisions should be declared inconsistent with the Constitution and invalid.
6. The declaration of invalidity should be retrospective in effect.
7. It should be declared that all marriages concluded out of community of property under section 22(6) of the BAA are converted to marriages in community of property
8. It would be just and equitable for orders to be made that:
8.1 couples who wish to opt out of this position and alter the matrimonial property system applicable to their marriage may do so by executing and registering a notarial contract to this effect;
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8.2 existing burdens on the property now falling into the joint estate will remain in place.
D. PORTIONS OF THE RECORD NECESSARY FOR THE DETERMINATION OF THE MATTER
9. The whole of the Record, save for Annexures DJB1 to DJB 6 to the first applicant’s founding affidavit (Vol 1 p 52 to Vol 4 p 293)
E. ESTIMATE OF THE DURATION OF THE ORAL ARGUMENT
10. Not more than two hours.
F. SUMMARY OF THE ARGUMENT
11. Marriage out of community is disadvantageous to women.
12. Section 22(6) of the 1927 Black Administration Act discriminated against Black women by prescribing that their marriages would be out of community of property.
13. Section 22(6) of the BAA disadvantaged black women relative to their husbands, and it disadvantaged them relative to women in other racial groups. The default position in respect of all other marriages in South Africa was and is a marriage in community of property.
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14. Section 22(6) of the BAA was repealed by an amendment to the Matrimonial Property Act brought about by the Marriage and Matrimonial Property Law Amendment Act 3 of 1988. However, the repeal did not apply to existing marriages: The effect of the 1988 Amendment Act was that existing marriages entered into under section 22(6) of the BAA would continue to be out of community of property.
15. This perpetuated and preserved the discrimination against Ms Sithole and other Black women who married before the commencement of the 1988 Amendment Act. It is estimated that there are approximately 400 000 women such women.
16. The impugned provisions of the MPA are inconsistent with the Constitution and invalid on the grounds that they breach the right to equality, the right to dignity, and the right of access to housing and health care services.
17. The unconstitutionality should be remedied by a declaration of invalidity, and by declaring that the default position will be that the marriages affected by this unconstitutional law are deemed to have been in community property. This would bring them in line with all other marriages in South Africa.
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18. An affected couple should be given the right to apply to change its matrimonial regime to one out of community of property.
19. Third parties who entered into transactions on the assumption that the estate was out of community of property should be protected by providing that existing burdens on property falling into the joint estate will remain.
20. This would remedy the constitutional invalidity of the Act, while balancing and protecting the rights and interests of all affected parties.
21. The declaration and order of the High Court should be confirmed.
AUTHORITIES TO BE RELIED UPON DURING ORAL ARGUMENT
Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC)
Gumede v President of Republic of South Africa and others 2009 (3) SA 152 (CC)
Ramuhovhi and others v President of the Republic of South Africa and others 2018 (2) SA 1 (CC)
Rahube v Rahube and others 2019 (2) SA 54 (CC)
G M BUDLENDER SC S A SEPHTON
Applicants’ counsel 23 March 2020
