What did the court say? Equal rights for wives in a polygamous customary marriage

What did the court say?

Equal rights for wives in a polygamous customary marriage

Actual case: Ramuhovhi and Others v President of the Republic of South Africa and Others (CCT194/16) (2017) ZACC 41

Facts of the case:

During his lifetime, the deceased (“Joseph”) entered into polygamous marriages with three different women before the Recognition of Customary Marriages Act (“Customary Marriages Act”) came into effect on 15 November 2000. All of these wives already passed away.
Joseph also entered into two civil marriages. One ended in divorce and the other one was declared invalid. The wife (“Joyce”) from the marriage that was declared invalid claimed that she and Joseph also entered into a customary marriage (also before the Customary Marriages Act came into effect).
Joseph’s Will appointed Joyce as the executor and he referred to them as being married in community of property.
Even though Joseph’s Will stated that he and Joyce were married in community of property, they were not.
Section 7(1) of the Customary Marriages Act provides that the proprietary consequences of a customary marriage entered into before the Customary Marriages Act came into effect will continue to be governed by customary law.
This means that, because the marriage between Joseph and Joyce was a Venda marriage, a wife does not have any rights, ownership or control over the property in the marriage.
The validity of section 7(1) of the Customary Marriages Act had to be decided on by the Constitutional Court on the basis that it discriminates unfairly against women in polygamous marriages entered into before the Customary Marriages Act came into effect.

What the Court said:

The Constitutional Court referred to customary marriages entered into after the Customary Marriages Act came into effect, where a wife will be equal to her husband. The marriage will be automatically in community of property, giving the wife equal rights to own and control the property in the joint estate.
In a previous case, section 7(1) of the Customary Marriages Act was declared invalid only in respect of monogamous customary marriages (between one husband and one wife). This added another inconsistency between monogamous and polygamous customary marriages.
The Constitutional Court held that section 7(1) of the Customary Marriages Act discriminates against women in polygamous marriages entered into before the Customary Marriages Act came into effect on the basis of gender, ethnicity, social origin and marital status.
The Constitutional Court finally held that the legislation must be amended within 24 months. An interim remedy was made that, while the legislation is being amended, husbands and wives in polygamous customary marriages concluded before the Customary Marriages Act came into effect, must equally share in the right of ownership, control and management of the matrimonial property.
The invalidity will not affect finalised deceased estates or customary marriages that ended in divorce by the time this decision was made.

Conclusion:

There was inequality between husbands and wives in polygamous customary marriages concluded before the Customary Marriages Act came into effect.
Section 7(1) of the Customary Marriages Act was declared invalid, which will give wives equal rights to their husbands. This is a good indication of how the law is constantly developing.