Holomisa v Holomisa and Another (CCT146/17) [2018] ZACC 40; 2019 (2) BCLR 247 (CC) (23 October 2018)

Holomisa v Holomisa and Another (CCT146/17) [2018] ZACC 40; 2019 (2) BCLR 247 (CC) (23 October 2018)

Section 7(3) of the Divorce Act 70 of 1979 is unconstitutional to the extent that it excludes spouses married out of community of property under the Transkei Marriage Act 21 of 1978 who did not enter into an ante-nuptial contract or express declaration. This exclusion is irrational and discriminatory, failing to serve any legitimate governmental purpose and perpetuating inequality based on gender, race, marital status, and geographic location. The discrimination is a relic of apartheid-era legislation and Parliament's failure to rationalise the law. The Court granted direct access due to the simplicity and urgency of the issue, suspended the declaration of invalidity for 24 months to...

Citation
[2018] ZACC 40
Parties
Applicant: Bukelwa Nolizwe Holomisa; Respondent: Sango Patekile Holomisa; Respondent: Minister of Justice and Correctional Services
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
23 October 2018
Case Number
CCT146/17
Procedural Posture
Civil Appeal / Constitutional Court Appeal Following Supreme Court of Appeal Judgment
Outcome
Appeal upheld; section 7(3) of the Divorce Act declared constitutionally invalid to the extent of the exclusion; declaration suspended for 24 months; interim reading-in ordered; matter referred back to Regional Court; no costs order in Constitutional Court.
Judges
Mogoeng, Basson, Cameron, Dlodlo, Froneman, Goliath, Khampepe, Mhlantla, Theron
Legal Topics
Equality Before Law, Matrimonial Property Regimes, Constitutional Invalidity, Reading in Remedy, Direct Access, Gender Discrimination
Constitutional Law Family and Children Equality Before Law Matrimonial Property Regimes Constitutional Invalidity Reading in Remedy Direct Access Gender Discrimination

Case Brief

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Parties

Bukelwa Nolizwe Holomisa

Applicant

Sango Patekile Holomisa

Respondent

Minister of Justice and Correctional Services

Respondent

Procedural Posture

Civil Appeal / Constitutional Court Appeal Following Supreme Court of Appeal Judgment

Legal Issues

  1. 1 Whether section 7(3) of the Divorce Act 70 of 1979 is unconstitutional to the extent that it excludes spouses married out of community of property under the Transkei Marriage Act 21 of 1978 without an ante-nuptial contract or express declaration.
  2. 2 Whether direct access to the Constitutional Court should be granted to challenge the constitutionality of section 7(3) of the Divorce Act.
  3. 3 What remedy is appropriate for the applicant and similarly situated persons.

Ratio Decidendi

Section 7(3) of the Divorce Act 70 of 1979 is unconstitutional to the extent that it excludes spouses married out of community of property under the Transkei Marriage Act 21 of 1978 who did not enter into an ante-nuptial contract or express declaration. This exclusion is irrational and discriminatory, failing to serve any legitimate governmental purpose and perpetuating inequality based on gender, race, marital status, and geographic location. The discrimination is a relic of apartheid-era legislation and Parliament's failure to rationalise the law. The Court granted direct access due to the simplicity and urgency of the issue, suspended the declaration of invalidity for 24 months to...

Court Disposition

Appeal upheld; section 7(3) of the Divorce Act declared constitutionally invalid to the extent of the exclusion; declaration suspended for 24 months; interim reading-in ordered; matter referred back to Regional Court; no costs order in Constitutional Court.

Orders

  • The Minister of Justice and Correctional Services is joined as second respondent.
  • Direct access is granted.