South Africa Case Law

K.R.G v Minister of Home Affairs and Others (40023/21)

K.R.G v Minister of Home Affairs and Others (40023/21) [2022] ZAGPPHC 311; [2022] 3 All SA 58 (GP); 2022 (5) SA 478 (GP) (11 May 2022)

Court

North Gauteng High Court, Pretoria

Case number

40023/21

Judge

E van der Schyff

Section 7(3)(a) of the Divorce Act, which restricts the court's discretion to grant redistribution orders to marriages out of community of property entered into before 1 November 1984, constitutes unfair discrimination and violates section 9(3) of the Constitution. The time-bar arbitrarily excludes economically disadvantaged spouses married after that date from seeking just and equitable relief, despite similar circumstances to those married before the cut-off. The differentiation is not justified by any legitimate government purpose and perpetuates economic and gender-based inequality. The c…

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• Divorce Act Section 7 3
• Matrimonial Property Regimes
• Unfair Discrimination
• Judicial Discretion
• Equality Rights
• Retrospective Invalidity

Sithole and Another v Sithole and Another (CCT 23/20)

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)

Court

Constitutional Court

Case number

CCT 23/20

Judges

Mogoeng, Jafta, Khampepe, Madlanga, Majiedt, Mathopo, Mhlantla, Theron, Tshiqi, Victor

The Constitutional Court confirmed that section 21(2)(a) of the Matrimonial Property Act is unconstitutional to the extent it preserves apartheid-era discrimination against Black couples married out of community of property.

• Unfair Discrimination
• Matrimonial Property Regimes
• Intersectionality
• Community Of Property
• Gender Equality
• Unfair-discrimination

Holomisa v Holomisa and Another (CCT146/17)

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

Court

Constitutional Court

Case number

CCT146/17

Judges

Mogoeng, Basson, Cameron, Dlodlo, Froneman, Goliath, Khampepe, Mhlantla, Theron

The Constitutional Court held that section 7(3) of the Divorce Act unfairly excluded certain Transkei marriages from redistribution relief on divorce.

• Equality Before Law
• Matrimonial Property Regimes
• Constitutional Invalidity
• Reading In Remedy
• Direct Access
• Gender Discrimination

Ramuhovhi and Others v President of the Republic of South Africa and Others (CCT194/16)

Ramuhovhi and Others v President of the Republic of South Africa and Others (CCT194/16) [2017] ZACC 41; 2018 (2) BCLR 217 (CC); 2018 (2) SA 1 (CC) (30 November 2017)

Court

Constitutional Court

Case number

CCT 194/16

Judges

Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ, Zondo J

Section 7(1) of the Recognition of Customary Marriages Act 120 of 1998, as applied to pre-Act polygamous customary marriages, is unconstitutional because it perpetuates unfair discrimination against women on the grounds of gender and marital status, denying them ownership and control over marital property and violating their rights to equality and dignity. The Court confirmed the High Court's declaration of invalidity, suspended the order for 24 months to allow Parliament to remedy the defect, and provided interim relief granting wives and husbands joint and equal ownership and management rig…

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• Recognition Of Customary Marriages Act
• Gender Equality
• Retrospective Invalidity
• Matrimonial Property Regimes
• Discrimination On Marital Status
• Intervention Procedure

Ramuhovhi and Another v President of the Republic of South Africa and Others (412/2015)

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)

Court

Limpopo High Court, Thohoyandou

Case number

412/2015

Judge

Lamminga

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 childr…

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• Recognition Of Customary Marriages Act
• Gender Discrimination
• Matrimonial Property Regimes
• Retrospectivity Of Invalidity Orders
• Community Of Property
• Customary Law Development

S.B v R.B (13622/2011, 36/2009)

S.B v R.B (13622/2011, 36/2009) [2014] ZAWCHC 56; [2015] 2 All SA 232 (ECLD, George) (16 April 2014)

Court

Western Cape High Court, Cape Town

Case number

13622/2011

Judge

J Cloete

The court found that the plaintiff's claims for a division of a joint estate or 50% of the defendant's estate failed due to the immutability principle, as the parties did not jointly apply to court to change their matrimonial property regime under section 21(1) of the Matrimonial Property Act. The evidence did not support the existence of a separate partnership agreement for property transactions. However, the court accepted that the defendant donated the Toyota RAV vehicle to the plaintiff, entitling her to R135,000 from its sale. The court also found that, given the plaintiff's financial po…

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• Matrimonial Property Regimes
• Maintenance
• Donation Between Spouses
• Universal Partnership
• Division Of Assets