Ramuhovhi and Another v President of the Republic of South Africa and Others (412/2015) [2016] ZALMPTHC 18; 2016 (6) SA 210 (LT) (1 August 2016)

Ramuhovhi and Another v President of the Republic of South Africa and Others (412/2015) [2016] ZALMPTHC 18; 2016 (6) SA 210 (LT) (1 August 2016)

Section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 is inconsistent with the Constitution as it unjustifiably discriminates against women in polygamous customary marriages entered into before 15 November 2000, on the grounds of gender, race, and ethnic or social origin. The discriminatory effect is compounded by the exclusion of these women from proprietary rights and control over marital property, perpetuating vulnerability and inequality. The court found no justification for this discrimination and held that a direct remedy is required to protect affected women and children. The interim regime grants joint and equal rights of management and control over marital...

Citation
[2016] ZALMPTHC 18
Parties
Applicant: Matodozi Ramuhovhi; Applicant: Thinamaano Edson Netshituka; Respondent: President of the Republic of South Africa; Respondent: Minister of Justice and Correctional Services; Respondent: Estate of Masewe Joseph Netshituka; Respondent: Munyadziwa Joyce Netshituka; Respondent: Master of the High Court Thohoyandou; Respondent: Minister of Home Affairs; Amicus Curiae: Women's Legal Trust
Court
Limpopo High Court, Thohoyandou
Jurisdiction
South Africa
Judgment Date
1 August 2016
Case Number
412/2015
Procedural Posture
Constitutional Application / High Court Judgment; Referral for Confirmation
Outcome
Section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 is declared inconsistent with the Constitution and invalid. An interim matrimonial property regime is imposed for polygamous customary marriages entered into before the Act's commencement, granting joint and equal rights to wives and husbands....
Judges
Lamminga
Legal Topics
Recognition of Customary Marriages Act, Gender Discrimination, Matrimonial Property Regimes, Retrospectivity of Invalidity Orders, Community of Property, Customary Law Development
Constitutional Law Family and Children Recognition of Customary Marriages Act Gender Discrimination Matrimonial Property Regimes Retrospectivity of Invalidity Orders Community of Property Customary Law Development

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Parties

Matodozi Ramuhovhi

Applicant

Thinamaano Edson Netshituka

Applicant

President of the Republic of South Africa

Respondent

Minister of Justice and Correctional Services

Respondent

Estate of Masewe Joseph Netshituka

Respondent

Munyadziwa Joyce Netshituka

Respondent

Master of the High Court Thohoyandou

Respondent

Minister of Home Affairs

Respondent

Women's Legal Trust

Amicus Curiae

Procedural Posture

Constitutional Application / High Court Judgment; Referral for Confirmation

Legal Issues

  1. 1 Whether section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 is inconsistent with the Constitution in its application to polygamous customary marriages entered into before 15 November 2000.
  2. 2 Whether women in 'old' polygamous customary marriages are unfairly discriminated against on the basis of gender, race, and ethnic or social origin.
  3. 3 What is the appropriate remedy and interim matrimonial property regime pending legislative intervention.

Ratio Decidendi

Section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 is inconsistent with the Constitution as it unjustifiably discriminates against women in polygamous customary marriages entered into before 15 November 2000, on the grounds of gender, race, and ethnic or social origin. The discriminatory effect is compounded by the exclusion of these women from proprietary rights and control over marital property, perpetuating vulnerability and inequality. The court found no justification for this discrimination and held that a direct remedy is required to protect affected women and children. The interim regime grants joint and equal rights of management and control over marital...

Court Disposition

Section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 is declared inconsistent with the Constitution and invalid. An interim matrimonial property regime is imposed for polygamous customary marriages entered into before the Act's commencement, granting joint and equal rights to wives and husbands....

Orders

  • Section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 is declared inconsistent with the Constitution and invalid.
  • Until Parliament enacts legislation, wives in polygamous customary marriages entered into before the Act's commencement shall have joint and equal rights of management and control over marital property with their husbands, exercised in the best interest of the family unit.