Authored By: Shongile Tsiri
University of South Africa
- Case Citation and Basic Information
Case Name: VVC v JRM and Others
Neutral Citation: VVC v JRM and Others [2026] ZACC 2
Court: Constitutional Court of South Africa
Case Number: CCT 202/24
Date Heard: 25 February 2025
Date of Judgment: 21 January 2026
Coram (Bench): Madlanga ADCJ, Dambuza AJ, Goosen AJ, Majiedt J, Mhlantla J, Opperman AJ, Rogers J, Theron J and Tshiqi J.
Majority Judgment: Majiedt J (with Dambuza AJ, Goosen AJ, Mhlantla J, Theron J and Tshiqi J concurring)
Dissenting Judgment: Rogers J
Parties:
- Applicant: VVC
- First Respondent: JRM
- Second Respondent: Minister of Justice and Constitutional Development
- Third Respondent: Minister of Home Affairs
Legislation Considered:
- Constitution of the Republic of South Africa, 1996 (sections 9, 25, 36, 167 and 172) • Recognition of Customary Marriages Act 120 of 1998 (particularly section 10(2))
- Matrimonial Property Act 88 of 1984
Subject Matter:
Constitutional validity of section 10(2) of the Recognition of Customary Marriages Act, the legal effect of an antenuptial contract concluded after a customary marriage, and whether spouses may change their matrimonial property regime from in community of property to out of community of property without judicial oversight.
- Introduction
The case of VVC v JRM and Others [2026] ZACC 2 is an important Constitutional Court judgment concerning the legal consequences of customary marriages and the protection of spouses’ matrimonial property rights. The case required the Court to determine whether section 10(2) of the Recognition of Customary Marriages Act 120 of 1998 is constitutional, particularly where spouses who were already married under customary law later conclude a civil marriage accompanied by an antenuptial contract. The judgment examines the relationship between customary and civil marriages, the role of judicial oversight in changing matrimonial property systems, and the constitutional rights to equality and property. It is a significant decision because it clarifies the interpretation of section 10(2) and reinforces the principle that customary marriages enjoy equal legal status and protection under South African law.
- Facts of the Case
VVC and JRM entered into a valid monogamous customary marriage on 5 August 2011, which was automatically in community of property under the Recognition of Customary Marriages Act. In 2019, they signed an antenuptial contract stating that their intended civil marriage would be out of community of property with the accrual system, but they did not divide their existing joint estate before concluding the civil marriage in June 2021.
After their relationship broke down, JRM sought to enforce the antenuptial contract during divorce proceedings. VVC argued that the contract was invalid because it attempted to change the matrimonial property regime after the customary marriage had already been concluded.
Alternatively, she contended that section 10(2) of the Recognition of Customary Marriages Act was unconstitutional if it allowed such a change without court approval.
The High Court held that the antenuptial contract was invalid but also declared section 10(2) unconstitutional for violating the rights to equality and property. The matter was referred to the Constitutional Court for confirmation. The Ministers of Justice and Home Affairs opposed the declaration, arguing that the High Court had misinterpreted the legislation. The Constitutional Court was therefore required to decide whether section 10(2) was unconstitutional and to clarify the legal consequences of concluding a civil marriage after an existing customary marriage.
- Legal Issues
The Constitutional Court was required to determine several interrelated questions of law arising from the interpretation of the Recognition of Customary Marriages Act and the constitutional challenge brought by the applicant. The principal legal issues were the following:
Issue 1: Whether the agreement signed by the parties on 19 February 2019 constituted a valid antenuptial contract under section 10(2) of the Recognition of Customary Marriages Act, or whether it was in substance a postnuptial contract that sought to alter an existing matrimonial property regime and therefore required judicial approval under the Matrimonial Property Act.
Issue 2: Whether section 10(2) of the Recognition of Customary Marriages Act is unconstitutional because it permits spouses who are already married under customary law to change their matrimonial property regime from in community of property to out of community of property by merely concluding an antenuptial contract, without judicial oversight and to the possible prejudice of the financially weaker spouse.
Issue 3: Whether allowing spouses to conclude a civil marriage with an antenuptial contract after an existing customary marriage result in the arbitrary deprivation of property in violation of section 25 of the Constitution by depriving one spouse of an equal share in the joint estate created during the customary marriage.
Issue 4: Whether section 10(2) unjustifiably infringes the constitutional right to equality under section 9 of the Constitution by providing fewer legal safeguards to spouses in customary marriages than those available to spouses in civil marriages, particularly where the economically weaker spouse is placed at a disadvantage.
These issues required the Constitutional Court to interpret section 10(2) within the broader framework of the Recognition of Customary Marriages Act, the Matrimonial Property Act, and the Constitution. In doing so, the Court had to determine whether the High Court had correctly interpreted the legislation and whether its declaration of constitutional invalidity should be confirmed.
- Arguments Presented
5.1 Applicant’s Arguments
The applicant, VVC, argued that the antenuptial contract was invalid because it attempted to change the matrimonial property regime after the customary marriage had already been concluded. She maintained that such a change amounted to a postnuptial agreement, which could only be made with court approval under the Matrimonial Property Act.
VVC further contended that section 10(2) of the Recognition of Customary Marriages Act violated the constitutional right to property by allowing spouses to alter their matrimonial property regime without judicial supervision. She argued that this could arbitrarily deprive the economically weaker spouse of rights in the joint estate.
The applicant also argued that the provision infringed the right to equality because it provided fewer legal safeguards for spouses in customary marriages than for those in civil marriages. She submitted that this unfairly discriminated against financially vulnerable spouses, particularly Black women, who have historically experienced discrimination in relation to customary marriages and property rights.
5.2 Respondents’ Arguments
The Ministers of Justice and Constitutional Development and Home Affairs opposed the High Court’s declaration that section 10(2) of the Recognition of Customary Marriages Act was unconstitutional. They argued that the Act already protects the rights of spouses in customary marriages and places them on an equal legal footing with spouses in civil marriages. They also maintained that although a civil marriage replaces the customary marriage, the patrimonial benefits acquired during the customary marriage remain protected.
The Ministers further submitted that the antenuptial contract did not operate retrospectively and therefore did not deprive either spouse of rights that had already accrued. They argued that the contract was valid because it was voluntarily concluded by both parties and did not result in arbitrary deprivation of property or unfair discrimination.
Finally, the Ministers contended that the High Court had misinterpreted section 10(2) by reading it in isolation from the Recognition of Customary Marriages Act and the Matrimonial Property Act. They argued that the antenuptial contract was wrongly treated as a postnuptial agreement and asked the Constitutional Court to refuse to confirm the declaration of constitutional invalidity.
- Court’s Reasoning and Analysis
The Constitutional Court interpreted section 10(2) of the Recognition of Customary Marriages Act purposively, considering its wording, context, and purpose. It held that the Act was enacted to recognise customary marriages as equal to civil marriages and to protect the rights and dignity of spouses. The Court found that section 10(2) only allows spouses in a customary marriage to conclude a civil marriage with one another and does not change the matrimonial property regime already established under the customary marriage.
The Court rejected the High Court’s view that section 10(2) allowed spouses to alter their matrimonial property system by signing an antenuptial contract before the civil marriage. It held that the Act does not authorize such a change and that any alteration of a matrimonial property regime after marriage must comply with the procedures in the Matrimonial Property Act, including obtaining court approval where necessary. This interpretation protects the rights of both spouses and creditors.
Because the High Court’s constitutional challenge was based on an incorrect interpretation of section 10(2), the Constitutional Court found that there was no infringement of the rights to equality or property. The majority therefore refused to declare the provision unconstitutional and declined to confirm the High Court’s order, reaffirming the equal legal status and constitutional protection of customary marriages.
- Judgment and Ratio Decidendi
The Judgment
The Constitutional Court refused to confirm the High Court’s declaration that section 10(2) of the Recognition of Customary Marriages Act was unconstitutional, finding that the provision is constitutionally valid. It also made no order as to costs.
The Court held that section 10(2) does not allow spouses in a customary marriage to change their existing matrimonial property regime simply by signing an antenuptial contract before entering into a civil marriage. Instead, the provision only permits the spouses to conclude a civil marriage with each other, while preserving the proprietary rights that already exist under the customary marriage.
The Court further confirmed that any change to a matrimonial property regime after marriage must comply with the procedures set out in the Matrimonial Property Act, including obtaining court approval where required. As section 10(2) does not authorize a change to the matrimonial property system, it does not violate the constitutional rights to equality or property.
Ratio Decidendi
The ratio decidendi of the case is that section 10(2) of the Recognition of Customary Marriages Act does not authorize spouses who are already married under customary law to change their existing matrimonial property regime simply by concluding an antenuptial contract before a subsequent civil marriage. Such a change may only occur through the procedures recognized by law, including judicial oversight where required.
The Constitutional Court also reaffirmed that customary marriages enjoy equal legal status and protection to civil marriages, and legislation regulating customary marriages must be interpreted consistently with the constitutional values of equality, dignity, and legal certainty.
- Critical Analysis
8.1 Significance of the Decision
The judgment in VVC v JRM and Others is significant because it provides important guidance on the interpretation of section 10(2) of the Recognition of Customary Marriages Act. Before this
decision, there was uncertainty regarding whether spouses who were already married under customary law could change their matrimonial property regime by concluding an antenuptial contract before entering into a civil marriage. The Constitutional Court clarified that the provision does not authorize such a change. Instead, it reaffirmed that customary marriages enjoy the same legal status and protection as civil marriages, and that any interpretation of the Act must promote equality, dignity, and legal certainty. This decision therefore strengthens legal certainty in South African family law.
8.2 Implications and Impact
The judgment has important practical implications for spouses married under customary law, legal practitioners, and the courts. It makes clear that spouses cannot alter an existing matrimonial property system simply by signing an antenuptial contract before concluding a civil marriage. Where spouses wish to change their matrimonial property regime after marriage, they must comply with the legal procedures prescribed by the Matrimonial Property Act, including judicial oversight where applicable. This protects both spouses from unfair prejudice and ensures that creditors and other interested parties are not adversely affected by private agreements that attempt to alter existing proprietary rights. The decision also provides valuable guidance for attorneys and notaries when advising clients who wish to convert a customary marriage into a civil marriage.
8.3 Critical Evaluation
The Constitutional Court’s reasoning is convincing because it adopted a purposive interpretation of the Recognition of Customary Marriages Act, ensuring that customary marriages receive the same legal status and protection as civil marriages. The judgment promotes the constitutional values of equality, dignity, and legal certainty while aligning the Act with the Matrimonial Property Act.
However, the decision has some limitations. Although it clarified the meaning of section 10(2), it did not fully address the practical difficulties that may arise when spouses transition from a customary marriage to a civil marriage, particularly regarding the management of matrimonial property.
The dissenting judgment by Rogers J also shows that different interpretations of the provision are possible. This indicates that further judicial guidance or legislative reform may still be needed to provide greater certainty on the proprietary consequences of customary and civil marriages.
- Conclusion
The Constitutional Court’s decision in VVC v JRM and Others clarified the interpretation of section 10(2) of the Recognition of Customary Marriages Act. The Court held that spouses cannot change the matrimonial property regime of an existing customary marriage simply by signing an antenuptial contract before entering into a civil marriage. It therefore refused to confirm the High Court’s finding that the provision was unconstitutional.
The judgment confirms that customary marriages enjoy the same legal status and constitutional protection as civil marriages. It promotes the constitutional values of equality, dignity, and legal certainty by ensuring that spouses do not lose their existing proprietary rights through an incorrect interpretation of the law. The Court also reaffirmed that any change to a matrimonial property regime after marriage must comply with the procedures set out in the Matrimonial Property Act.
While the decision settles the legal position on section 10(2), it also highlights the need for greater public awareness of the legal consequences of customary and civil marriages. The judgment is an important contribution to South African family law because it protects the rights of spouses in customary marriages while upholding constitutional principles.
BIBLIOGRAPHY (OSCOLA)
Cases
Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC). J v Director-General, Department of Home Affairs 2003 (5) SA 621 (CC). JRM v VVC [2024] ZAGPPHC 547; [2024] 3 All SA 853 (GP).
MN v MM 2012 (4) SA 527 (SCA).
University of Johannesburg v Auckland Park Theological Seminary 2021 (6) SA 1 (CC). VVC v JRM and Others [2026] ZACC 2.
Legislation
Constitution of the Republic of South Africa, 1996.
Matrimonial Property Act 88 of 1984.
Recognition of Customary Marriages Act 120 of 1998.
Journal Articles
Bakker P, ‘The Validity of a Customary Marriage under the Recognition of Customary Marriages Act 120 of 1998 with Reference to Sections 3(1)(b) and 7(6) – Part 1’ (2016) 79 THRHR 231.
Sinclair J, The Law of Marriage Vol 1 (Juta 1996).
