JRM v VVC and Others (25007/2022) [2024]

Case Details

VVC v JRM, Ministers of Justice and Constitutional Development and of Home Affairs

Court: Constitutional Court of South Africa (confirming order of the High Court, Gauteng Division, Pretoria)

Bench: Majiedt J, Dambuza AJ, Goosen AJ, Mhlantla J, Theron J, Tshiqi J, and Rogers J

Date of Judgment: 21 January 2026

Introduction

This case falls within the field of constitutional law, as it concerns the constitutional validity of section 10(2) of the Recognition of Customary Marriages Act 120 of 1998 (RCMA). It also engages customary law and family law, arising as it does from a dispute involving a customary marriage and subsequent divorce proceedings. The Constitutional Court delivered judgment on the constitutional validity of section 10(2) of the RCMA. The case originated from a divorce dispute between the applicant, VVC, and the first respondent, JRM, in the High Court of South Africa, Gauteng Division, Pretoria, where section 10(2) was declared unconstitutional. The matter was thereafter referred to the Constitutional Court for confirmation of that order.

The case is significant for the important constitutional questions it raises regarding the regulation of customary marriages and the protection of rights within such marriages. It also highlights the role of the courts in ensuring that legislation complies with constitutional principles. Ultimately, the case required the Constitutional Court to resolve the key legal question regarding the proper interpretation and constitutionality of section 10(2) of the RCMA.

Facts

The parties were married to each other in terms of customary law in August 2011 and did not sign an antenuptial contract (ANC) at that time. In 2019, they decided to conclude a civil marriage and signed an antenuptial contract in terms of section 10(2) of the RCMA. That contract provided that the civil marriage would be out of community of property and subject to the accrual system. They concluded the civil marriage in 2021, without first dividing the joint estate created by the customary marriage. Their marriage subsequently broke down.

The Minister of Justice and Constitutional Development was joined as the second respondent because the constitutionality of a provision of the RCMA was in question and the Government has an interest in defending the constitutionality of its legislation. The Minister of Home Affairs was joined as the third respondent on the same basis.

Issue

The case was heard in two courts: the High Court and the Constitutional Court. In the High Court, the primary issue was whether the antenuptial contract signed after the customary marriage was valid. From that finding, the court also had to decide whether, if the contract were valid, section 10(2) of the RCMA would be unconstitutional. Section 10(2) allows spouses in a monogamous customary marriage to convert the customary marriage to a civil marriage. If they do so, the civil marriage is in community of property unless an antenuptial contract provides otherwise. The challenge was that this process permitted a change in the matrimonial property system without judicial oversight. The key constitutional question was whether this process arbitrarily deprived the financially weaker spouse, VVC, of her ownership rights in the assets forming part of the joint estate created by the original customary marriage.

The main issue before the Constitutional Court was to confirm the High Court’s order declaring section 10(2) of the RCMA unconstitutional. This was a confirmation hearing, not a full appeal. The court was also required to interpret section 10(2) to determine its proper meaning.

Arguments

The plaintiff, the husband who applied for divorce, argued that the antenuptial contract was binding on the parties since they had signed it and thereafter concluded a civil marriage. He contended that the civil marriage superseded the customary marriage, which had been in community of property, and that the parties had originally intended their marriage to be out of community of property. On his case, this meant that the joint estate created by the 2011 customary marriage was effectively dissolved or set aside by their agreement.

The wife, the first respondent, argued that the antenuptial contract was invalid since the parties had already been married under customary law at the time it was signed. She submitted that a valid antenuptial contract must be signed before a marriage is concluded. She further argued that in terms of section 21 of the Matrimonial Property Act 88 of 1984, any change to a matrimonial property system during a subsisting marriage must be presented to a court, which must grant permission — failing which the contract is invalid.

The wife further argued that section 10(2) of the RCMA is unconstitutional on two grounds. First, it results in unfair discrimination because it allows spouses in customary marriages to change their matrimonial property system without court oversight, while spouses in civil marriages are required to obtain judicial approval. This difference in treatment disproportionately affects black women, who are often the economically weaker spouses, and therefore amounts to indirect discrimination based on race and gender. Second, the provision permits the arbitrary deprivation of property, as it allows one spouse to lose ownership rights without proper legal process. In this case, the private agreement enabled the husband to treat property forming part of the joint estate as his own, thereby depriving the wife of her proprietary rights without court supervision or adequate legal protection.

Court’s Reasoning

The High Court considered the arguments of both parties and analysed the relevant legal provisions before reaching its decision. It found that the contract signed by the parties was not a valid antenuptial contract, as it had been concluded after the customary marriage had already come into existence. The court held that it constituted a postnuptial contract, and that any change to a matrimonial property system during an existing marriage requires judicial approval in terms of section 21 of the Matrimonial Property Act 88 of 1984. The High Court further held that section 10(2) of the RCMA resulted in unfair discrimination. It reasoned that spouses in civil marriages must obtain a court order to change their matrimonial property system, whereas spouses converting a customary marriage into a civil marriage could do so through a private agreement without judicial oversight. The court held that this disproportionately affected financially weaker spouses, particularly black women, and amounted to indirect discrimination based on race and gender. The lack of court supervision also created a risk of unfair discrimination and arbitrary deprivation of property. On this basis, the High Court declared the provision unconstitutional.

In the Constitutional Court, the majority judgment rejected the interpretation adopted by the High Court. The majority held that section 10(2) does not refer to the existing customary marriage, but rather to a contract concluded in anticipation of a subsequent civil marriage. The court reasoned that when parties enter a civil marriage after a customary marriage, this constitutes a new legal act, and the parties are entitled to regulate the matrimonial property system of that civil marriage by means of an antenuptial contract. The majority held that this does not amount to a change of the existing customary marriage, but rather the creation of a new matrimonial property regime for the civil marriage. The majority further found that the High Court erred in deciding the constitutional issue after already finding the contract invalid, since the constitutional question would only arise if the contract were valid. The court also held that the civil marriage subsumes the customary marriage, meaning that the parties are thereafter governed by the civil marriage. As a result, the majority concluded that section 10(2) is not unconstitutional.

In a dissenting judgment, Rogers J disagreed with the majority and held that the law recognises a single, continuous marriage. He reasoned that the civil marriage does not create a new legal relationship but merely adds legal recognition to the existing customary marriage. Accordingly, any contract concluded after the customary marriage is a postnuptial contract, which requires court approval under the Matrimonial Property Act. Rogers J emphasised the need to protect the financially weaker spouse and held that allowing private agreements without judicial oversight exposes such spouses to unfair loss of property. He therefore agreed with the High Court that section 10(2) permits arbitrary deprivation of property and results in unfair discrimination and is thus unconstitutional.

Final Judgment

The High Court held that the agreement signed by the parties after the customary marriage could not constitute a valid antenuptial contract, as it was concluded during the subsistence of an existing marriage and had the effect of changing the matrimonial property regime without compliance with section 21 of the Matrimonial Property Act 88 of 1984.¹ The High Court proceeded to decide the constitutional challenge. It held that section 10(2) of the RCMA was unconstitutional because it allowed spouses in customary marriages to change their matrimonial property regime without judicial oversight, thereby permitting arbitrary deprivation of property and unfair discrimination, particularly against women married under customary law.² The declaration of invalidity was suspended for 12 months, and a reading-in was ordered in the event that Parliament failed to cure the defect.³

The majority judgment of the Constitutional Court held that the purpose of the RCMA 120 of 1998 is to remedy the historical disadvantage suffered by parties to customary marriages and to ensure equal protection, especially for vulnerable spouses such as black women. The court found that section 7(5) of the RCMA makes section 21 of the Matrimonial Property Act 88 of 1984 applicable to customary marriages, requiring court supervision for any change to the matrimonial property system. It held that a customary marriage is not terminated by a later civil marriage, but continues as a single, unified marriage thereafter governed by civil law. On this interpretation, section 10(2) refers to an antenuptial contract concluded before the customary marriage and does not permit changes to the property system without judicial oversight. The court concluded that the 2019 contract was invalid for non-compliance with section 21, but that section 10(2), properly interpreted, is not unconstitutional. The Constitutional Court therefore refused to confirm the High Court’s declaration of invalidity.

In his dissenting judgment, Rogers J held that section 10(2) refers to the civil marriage entered into after the customary marriage and that the term “marriage” must be given a consistent meaning throughout the provision. He found that the civil marriage does not replace the customary marriage but exists alongside it, and that an antenuptial contract concluded before the civil marriage is valid. He further held that the parties may regulate their joint estate through such a contract and that concerns about weaker spouses do not justify limiting contractual freedom. The dissent concluded that section 10(2) is unconstitutional, as it permits arbitrary deprivation of property and provides inadequate protection for economically vulnerable spouses. The 2019 contract nevertheless remained invalid due to the High Court’s unchallenged finding on that issue, and each party was ordered to bear their own costs.

Critical Evaluation

A critical evaluation of the court’s judgment reveals both strengths and weaknesses in its approach. The majority’s interpretation of the RCMA 120 of 1998 is a strength, as it aligns with section 39(2) of the Constitution by promoting equality and recognising the historical context of customary marriages. However, the reasoning may be criticised for not fully addressing the risk of prejudice to economically weaker spouses, since — on the majority’s interpretation — parties may arrange their affairs in ways that effectively alter property rights without mandatory judicial oversight as required under section 21 of the Matrimonial Property Act 88 of 1984. The dissent highlights that this may result in arbitrary deprivation of property, contrary to section 25(1) of the Constitution. An alternative approach would have been to require court supervision to better protect vulnerable parties while still advancing the purpose of the legislation.

In conclusion, the Constitutional Court held that section 10(2) of the RCMA 120 of 1998 is not unconstitutional when properly interpreted. The court found that the parties’ marriage was a single, continuous marriage and that the contract was invalid for failure to comply with section 21 of the Matrimonial Property Act 88 of 1984. Accordingly, the court refused to confirm the High Court’s declaration of invalidity.

Reference(S):

¹ JRM v VVC and Others (25007/2022) [2024] ZAGPPHC 123 (10 June 2024).

² Ibid.

³ Ibid.