Sithole and Another v Sithole and Another (CCT 23/20) [2021] ZACC 7; 2021 (6) BCLR 597 (CC); 2021 (5) SA 34 (CC) (14 April 2021)

Sithole and Another v Sithole and Another (CCT 23/20) [2021] ZACC 7; 2021 (6) BCLR 597 (CC); 2021 (5) SA 34 (CC) (14 April 2021)

Section 21(2)(a) of the Matrimonial Property Act 88 of 1984 is unconstitutional and invalid to the extent that it perpetuates the discrimination created by section 22(6) of the Black Administration Act 38 of 1927. The impugned provisions maintain a default position that Black couples married under the BAA before 1988 are automatically married out of community of property, which constitutes unfair discrimination on the grounds of race and gender. This discrimination is not justified under the limitations clause and fails to deliver substantive equality as required by the Constitution. The Court confirmed the High Court's order, declaring all affected marriages to be in community of...

Citation
[2021] ZACC 7
Parties
Applicant: Agnes Sithole; Applicant: Commission for Gender Equality; Respondent: Gideon Sithole; Respondent: Minister of Justice and Correctional Services
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
14 April 2021
Case Number
CCT 23/20
Procedural Posture
Constitutional Confirmation / Application for Confirmation of High Court Order of Constitutional Invalidity
Outcome
Order of constitutional invalidity confirmed. Section 21(2)(a) of the Matrimonial Property Act declared unconstitutional and invalid to the extent indicated.
Judges
Mogoeng, Jafta, Khampepe, Madlanga, Majiedt, Mathopo, Mhlantla, Theron, Tshiqi, Victor
Legal Topics
Unfair Discrimination, Matrimonial Property Regimes, Intersectionality, Community of Property, Gender Equality
Constitutional Law Family and Children Unfair Discrimination Matrimonial Property Regimes Intersectionality Community of Property Gender Equality

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Parties

Agnes Sithole

Applicant

Commission for Gender Equality

Applicant

Gideon Sithole

Respondent

Minister of Justice and Correctional Services

Respondent

Procedural Posture

Constitutional Confirmation / Application for Confirmation of High Court Order of Constitutional Invalidity

Legal Issues

  1. 1 Does section 21(2)(a) of the Matrimonial Property Act 88 of 1984 unfairly discriminate against Black couples married under section 22(6) of the Black Administration Act before 1988?.
  2. 2 Should the High Court's declaration of constitutional invalidity be confirmed?.
  3. 3 Is there any justification for the continued differential treatment of Black couples under the impugned provisions?.

Ratio Decidendi

Section 21(2)(a) of the Matrimonial Property Act 88 of 1984 is unconstitutional and invalid to the extent that it perpetuates the discrimination created by section 22(6) of the Black Administration Act 38 of 1927. The impugned provisions maintain a default position that Black couples married under the BAA before 1988 are automatically married out of community of property, which constitutes unfair discrimination on the grounds of race and gender. This discrimination is not justified under the limitations clause and fails to deliver substantive equality as required by the Constitution. The Court confirmed the High Court's order, declaring all affected marriages to be in community of...

Court Disposition

Order of constitutional invalidity confirmed. Section 21(2)(a) of the Matrimonial Property Act declared unconstitutional and invalid to the extent indicated.

Orders

  • Section 21(2)(a) of the Matrimonial Property Act 88 of 1984 is declared unconstitutional and invalid to the extent that it perpetuates discrimination created by section 22(6) of the Black Administration Act 38 of 1927.
  • All marriages of Black persons that are out of community of property and were concluded under section 22(6) of the Black Administration Act before the 1988 amendment are declared to be marriages in community of property, unless couples opt out.