Sithole and Another v Sithole and Another 2021 (6) BCLR 597CC

Case Name: Sithole and Another v Sithole and Another 2021 (6) BCLR 597 CC

Court name: The Constitutional Court of South Africa

Bench: Tshiqi J concurred in by (Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ)

Date of judgment: 14 April 2021

Description of the parties

• The first applicant is Mrs Agnes Sithole, a seventy-two-year-old housewife residing in KwaZulu-Natal.[1]
• The Second Applicant is the Commission for Gender Equality, established under section 187 of the Constitution of the Republic of South Africa to promote respect for and the protection, development and attainment of gender equality[2]
• The first respondent is Mr Gideon Sithole, a then seventy-four-year-old male electrical contractor who sadly passed away in 2021 after the application was argued[3]
• The second respondent is the Minister of Justice and Correctional Services, cited herein as the executive member responsible for the administration of the MPA, and as the representative of the government.[4]

Facts of the case

Mrs Agnes Sithole, the applicant in this matter, was married to Mr Gideon Sithole, the respondent, in 1972 in terms of section 22(6) of the Black Administration Act.[5] Unbeknown to Mrs. Sithole, their matrimonial property regime was out of community of property. This was the default position created by section 22(6) of the Black Administration Act. In 2000, they purchased their family home, and this was registered in Mr. Sithole’s name. During the past few years, their relationship deteriorated, and Mr. Sithole threatened to sell the house from time to time. Mrs Sithole then launched an application in court for an order interdicting and restricting Mr Sithole from selling the house. It was during this process that she and her husband were not married in community of property, and that her husband did not need her consent to sell the house.

Mrs Sithole and the Commission of Gender Equality jointly brought an application before the High Court to declare section 21(2)(a) of the Matrimonial Property Act[6] unconstitutional and invalid. The section is attacked on the basis that it is inconsistent with the Constitution and should be declared invalid to the extent that it maintains the default position of marriages of black people entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act.[7] Mrs Sithole challenged section 21(1) and 21(2)(a)5 of the MPA on the basis that it unfairly discriminates against women in her position on the grounds of gender and race.

By bringing this application to court, the applicants seek to address the legacy of section 22(6) of the BAA in terms of which Black couples who concluded civil marriages were married out of community of property by default. The High Court agreed that section 21(2)(a) of the MPA does not pass the constitutional muster, in that it unfairly discriminates on the grounds of gender and race.[8] The High Court thus declared that all marriages concluded out of community of property under section 22(6) of the Black Administration Act are deemed to be marriages in community of property from the date of its order. An application to confirm this order was then brought before the Constitution Court.

Legal issues

• The issue brought before the Constitutional Court is whether the order of constitutional invalidity made by the High Court should be confirmed in terms of section 167(5) of the Constitution.[9] The outcome of that inquiry is predicted on whether the challenged provisions discriminate unfairly against black couples whose marriages were concluded in terms of the BAA, including the first applicant together with the other women with whom she was similarly placed.
• If they do, is there a justification that saves the challenged provisions from constitutional inconsistency?
• Lastly, if unfair discrimination is found and cannot be justified, this court must confirm the order of constitutional invalidity and make an order that is just and equitable.[10]

Arguments of the parties

Mr Sithole also confirmed the fact that the relationship between them had deteriorated. He also admitted that he had intentions of selling the house, but he then denied ever threatening to do so. Regarding the matrimonial regime, Mr Sithole submitted that he had an agreement together with Mrs Sithole to conclude a marriage out of community of property while they were both fully aware of its consequences and that neither did Mr Sithole or his wife intended to conclude a marriage in community of property. In support of this averment, he also attached an affidavit from a priest, Father Mdabe of the Catholic Church, stationed at Marianhill Monastery Church, who was only ordained in 1989, 17 years after their marriage was concluded. It sets out the procedure generally followed before marriages are concluded in that church.

Mrs Sithole sought and obtained an order interdicting and restraining Mr Sithole from selling the house or in any manner alienating it until the present application was finalised. She stated that she is a devout member of the Roman Catholic Church, and divorce in her church is discouraged and frowned upon. She still entertained hope of reconciling with her husband. According to her testimony, she was therefore not willing to divorce her husband to secure an equitable distribution of the parties’ assets by utilising the remedy which section 7(3) to (5) of the Divorce Act provides for, in the event parties who are married out of community of property, get divorced.[11]

The Divorce Act was also amended by section 36(b) of the MPA and then by section 2 of the Amendment Act to address part of the legacy of the BAA. Section 7(3) to (5) of the Divorce Act now provides that a divorce court may order the equitable distribution of assets between spouses married out of community of property under section 22(6) of the BAA as the court may deem just.

The applicants contend that although these amendments have ameliorated the discriminatory legacy of section 22(6), they do not remedy or reverse the negative impact of section 22(6) on Black spouses. The default position of these marriages continues to be out of community of property, unless the couples have taken steps to alter their matrimonial regime. For the reasons that will be explored later during the analysis, this submission has merit. Before embarking on the analysis, it is helpful to contextualise this submission and briefly set out a conspectus of the relevant equality and discrimination jurisprudence.

Judgment

The Constitutional Court held that the consequences suffered by Black people created by such discriminatory laws make it compelling that such laws should be urgently obliterated from our statutes. It found section 21(2) (a) of the MPA to be unfairly discriminatory and such discrimination was not justifiable under section 36 of the Constitution. The Constitutional Court confirmed the order that section 21(2)(a) of the Matrimonial Property Act is unconstitutional and invalid to the extent that it perpetuates the discrimination created by section 22(6) of the Black Administration Act, in that marriages of Black couples, entered into under the BAA before 1988, are automatically out of community of property.[12]

Ratio decidendi

Section 22(6) of the BAA created a default position that black couples were married out of community of property.[13] The provisions of section 21(2)(a) of the MPA are also hereby declared unconstitutional and invalid to the extent that they maintain and perpetuate the discrimination created by section 22(6) of the BAA and therefore maintain the default position of marriages of black couples, entered into under the BAA before the 1988 amendment, that such marriages are automatically out of community of property.

The Constitutional Court in Van Heerden held as follows:

This substantive notion of equality recognises that besides uneven race, class and gender attributes of our society, there are other levels and forms of social differentiation and systematic under-privilege, which persist. The Constitution encourages us to dismantle them and to prevent the creation of new patterns of disadvantage. It is therefore incumbent on courts to scrutinise in each equality claim the situation of the complainants in society; their history and vulnerability; the history, nature and purpose of the discriminatory practice and whether it ameliorates or adds to group disadvantage in real life context, in order to determine its fairness or otherwise in the light of the values of our Constitution. In the assessment of fairness or otherwise a flexible but ‘situation sensitive’ approach is indispensable because of shifting patterns of hurtful discrimination and stereotypical response in our evolving democratic society.[14]

Orders made by the court

• Marriages of black persons that are out of community of property and were concluded in terms of section 22(6) of the BAA before the 1988 amendment are, except for those couples who chose a marriage out of community of property, declared to be marriages in community of property.
• Spouses who chose to conclude for marriages out of community of property shall, in writing, notify the Director-General of the Department of Home Affairs accordingly.
• The provisions of section 21(2)(a) of the Matrimonial Property Act 88 of 1984 (‘the MPA’) are hereby declared unconstitutional and invalid to the extent that they maintain and perpetuate the discrimination created by section 22(6) of the Black Administration Act 38 of 1927, and thereby maintain the default position of marriages of black couples, entered into under the Black Administration Act before the 1988 amendment, that such marriages are automatically out of community of property.
• 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, save for those couples who opt for a marriage out of community of property, hereby declared to be marriages in community of property.
• Spouses who have opted for marriage out of community of property shall, in writing, notify the Director-General of the Department of Home Affairs accordingly.
• Where spouses disagree, either spouse in a marriage which becomes a marriage in community of property in terms of the declaration in paragraph 2, may apply to the High Court for an order that the marriage shall be out of community of property, notwithstanding that declaration.
• In terms of section 172(1) (b) of the Constitution, the orders in paragraphs 1 and 2 shall not affect the legal consequences of any act done or omission in relation to a marriage before this order was made.
• From the date of this order, Chapter 3 of the Matrimonial Property Act will apply in respect of all marriages that have been converted to marriages in 2 community of property, unless the affected couple has opted out in accordance with the procedure set out in paragraph 3 above.
• Any person with a material interest who is adversely affected by this order, may approach the High Court for appropriate relief.
• The second respondent is ordered to pay the costs of this application and such costs to include the costs of two counsel, where so employed.

 It is ordered that the first respondent’s attorney, Mr Dlamini, should forfeit his legal fees in respect of this application.

Conclusion

This case addresses significant issues regarding matrimonial property rights and the discrimination of black couples in South Africa. The court also protects black women against possible disadvantages that emanate from concluding a marriage in community of property, such as insolvency, tax implications, temporary loss of control of the joint estate on the death of the first dying and more.

BIBLIOGRAPHY

Caselaw

• Sithole and Another v Sithole and Another 2021 (6) BCLR 597 CC
• Minister of Finance v Van Heerden [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC)

Legislation

• The Black Administration Act 38 of 1927
• The Matrimonial Property Act 88 of 1984
• The Marriage and Matrimonial Property Law Amendment Act 3 of 1988

[1] Sithole Sithole and Another v Sithole and Another 2021 (6) BCLR 597 CC para 4 (Sithole)

[2] Section 187 of the Constitution of the Republic of South Africa, 1996 (The Constitution)

[3] Sithole para 5

[4] Sithole para 5

[5] 28 of 1927 (The BAA)

[6] The Matrimonial Property Act 88 of 1984 (The MPA)

[7] The Marriage and Matrimonial Property Law Amendment Act 3 of 1988

[8] Sithole para 3

[9] The Constitution, 1996

[10] Sithole, para 11

[11] Sithole para 8

[12] Sithole, para 45

[13] Sithole, para 13

[14] Minister of Finance v Van Heerden 2004 (11) BCLR 1125 (CC) (Van Heerden).