Nkosikhulule Nyembezi
CAPE TOWN - There is something telling from the experience of women like Queen Sibongile Zulu and Agnes Sithole, who have resorted to the courts to fight for their dignity and protect what is theirs.
A country that continues to endure the uncomfortable reality that, even after 25 years into our constitutional democracy, which envisages equal protection of everyone by the law, black people continue pushing against the remnants of the oppressive and discriminatory laws of the apartheid regime due to neglect by politicians, needs to grow up and get real, fast.
That was the tone of the milestone Constitutional Court decision in the 2021 Sithole case, in which the provisions of the Matrimonial Property Act of 1984 were declared unconstitutional and invalid. They maintained and perpetuated the discrimination created by the Black Administration Act of 1927. These laws maintained 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.
Without deferring to Parliament to amend the law, the court overwhelmingly decided that with immediate effect and retrospectively, all marriages of black persons that are out of community of property and were concluded under the Black Administration Act before the 1988 amendment are declared to be marriages in community of property. There is an exception for those couples who opt for marriage out of community of property.
The default view by some in the legal fraternity and many in traditional leadership is that the court has usurped the role of Parliament in issuing a retrospective order instead of the usual “order limiting the retrospective effect of the declaration of invalidity, and suspending the declaration of invalidity” to allow the legislature to correct the defect.
The reflex of the traditionalists is that the prospect of an incursion in the separation of powers means this is no time for a court decision that drastically changes the legal position of the country. In reality, of course, the reverse is true.
The court, vested with judicial authority, indicated that “the fact that these kinds of provisions are still in our statute book is unacceptable” and makes the case for declaring them unconstitutional far stronger than they were in the early years of our democracy as “there is no basis to delay, and thus, perpetuate the unjustified unequal treatment of black couples.” “It would, thus, not be just and equitable to limit the retrospective effect of the declaration of invalidity,” the court added, saying, “furthermore, a prospective order would not grant any or effective relief to black couples in marriages concluded before 1988.”
The retrospective declaration of invalidity is an epochal event. According to many South Africans whose rights the court vindicated, it is part of restitutionary measures that remedy the cruel effects of past discriminatory laws and deliver substantive equality.
This is important as a recognition by the court that historically marriages of black people had a separate dispensation from other marriages in that they were governed by a law under which these marriages were automatically out of community of property, except after meeting certain conditions.
The decision ratchets up equality rights to a string of other vulnerable individuals discriminated against because of gender and race. It redefines at a stroke a matrimonial property regime and equality assumptions of our entire black population that have been existing for many decades. It also represents a deliberate and culminating self-induced rupture by South Africa’s constitutional democracy that upholds equality and human dignity with the remnants of our colonial and patriarchal past.
Not only that, but it is a victory for those over 400 000 women like the 73-year Agnes Sithole who remain married out of community of property because they were not aware that they could opt-out of their matrimonial regime or knew they could, but did not, due to several socio-economic factors.
This has not come out of anywhere. Since 1994, there have been serious struggles to make gender and race equality real in our country, both in courts and in the streets. This court decision adds to the rich legacy affirming what this situation calls for us all to do going forward.
As aspect after aspect of our oppressive history shows, the reality is that Parliament is not the autonomous master of its pace when it comes to transforming our society, let alone repealing unconstitutional laws.
Parliament is, in truth, what it has always been since the dawn of democracy, a body elected to represent the people but whose members are sometimes too busy with other things to prioritise the protection of the most vulnerable citizens. It is one of several democracy-supporting institutions, though an important one, that must work closely with the judiciary and the executive together with all social partners to correct the injustices of the past. It must lead legislative reforms to protect the capacity of black couples to own property by examining the intersectional effects of the unfair discrimination on the constitutional rights of women to dignity, healthcare, food, water, and social security.
Putting the Sithole court decision into practice requires a leap of moral imagination from our society as a whole that is adequate to the extraordinary moment. If that happens, as it should, proper resources need to be directed to human rights education and the implementation of other programmes across the country to empower and support those who have for so long been unfairly discriminated against; this must be a national effort with proper leadership from the government.
It must remind us of the parable of the Good Samaritan, as we emphasise our solidarity with a people under vicious and sustained discrimination. The Good Samaritan did not simply talk the talk, as our political leaders are so often wont to do. He crossed the road to help the stricken stranger and then paid for the man to be looked after. So must we.
There’s a generational task ahead now. We need a government, and strong leaders across all sectors of our society, who are up to the job because those in Parliament who have allowed such a discriminatory matrimonial regime to continue for so long simply are not.
Nyembezi, a human rights activist and policy analyst
Cape Times