A S and Another v G S and Another (D12515/2018) [2020] ZAKZDHC 1 (24 January 2020)

/ / 2020, Family Law


In this matter, a 72 (Seventy Two) year old housewife (“main Applicant”) instituted proceedings against her husband (“main Respondent”) on the basis of public interest to obtain a declaratory order to have sections 21(1) and 21(2)(a) of the Matrimonial Property Act 88 of 1984 (“MPA”) be declared unconstitutional and that all marriages concluded in terms of section 22 of the Black Administration Act (“BAA”) be deemed to be marriages in community of property.  

The main Applicant and main Respondent (the “Parties”) were married to each other on 16 December 1972, out of community of property under section 22(6) of the BAA. During the course of their marriage, the main Applicant, who is a small-business owner, contributed to the common household by, amongst other things, paying for their children’s private school education. The relationship between the Parties turned sour and the main Respondent allegedly threatened to sell the property in which they were currently residing, which would render both the main Applicant and her children with the main Respondent homeless. The Parties’ marriage has irretrievably broken down, however, given the main Applicant’s religious beliefs, divorce was not an option. Therefore, given the main Applicant’s circumstances, the remedies made available by the Divorce Act 70 of 1979 would be to no avail. Section 7(3) to (5) of the Act provides that a divorce court may order the equitable distribution of assets between spouses married out of community of property under s 22 (6) of the BAA. The section further stipulates that the court may only make such order if it is satisfied that this is equitable to do so.  

The main Applicant submitted that the impact of section 22(6) of the BAA was discriminatory toward black women due to the fact that, in terms of this section, the default matrimonial property system for a black couple married before 1988 is out of community of property. The main Applicant further submitted that section 21(1) and 21(2)(a) of the MPA are invalid and unconstitutional to the extent that it maintains the default position established by section 22(6) of the BAA. The effect of the MPA provisions is that couples who were married subject to section 22(6) of the BAA will remain married out of community of property, unless they opt to change their property regime to ‘in community of property’ which would require the consent of both spouses. Even if women were able to obtain the consent of their husbands to alter their matrimonial property regime, the protection afforded by the MPA would only be available if a woman has knowledge of her rights and access to legal assistance.  

The main Applicant argued that the perpetuation of this position was discriminatory in two respects. Firstly, it discriminated against black women by disadvantaging them relative to their husbands. Secondly, the BAA unfairly discriminated against black women, as by contrast, the laws regulating civil marriages between couples of all other races set the default position as marriage in community of property. The law had resulted in black women who were married before 1988, in terms of Customary Marriage, being afforded less protection than other women in the country. Section 9 of the Constitution is therefore implicated.  

As for the question of the aforementioned being discriminatory, the court applied the Harksen v Lane test so as to establish whether section 9 of the Constitution has been violated. The court had to determine whether the impugned provision or conduct (in this case, sections 21(1) and 21(2)(a) of the MPA) differentiates between people or categories of people. This test comprises of the following enquiry: Does the challenged law or conduct differentiate between people or categories of people? If so, does the differentiation serve a legitimate purpose? If there is a legitimate purpose, the next question is whether there is a rational connection between the differentiation and the purpose which it serves. If the answer to this is no, then the impugned law or conduct violates s 9(1) and it constitutes unfair discrimination.


The Deputy Judge President (“DJP”) held that no proof has been tendered to show that the differentiation which the provisions create, being that between black people married before 1988 and after 1988, as well as the rest of the spouses in the country, is intended to serve any constitutionally accepted purpose. Notwithstanding this, the differentiation amounts to an unfair discrimination because it is on the specified grounds of marital status, race and gender. Moreover, it is discriminatory on the grounds of age against elderly black women married before 1988, as it differentiates between the proprietary consequences applicable to women who were married under the BAA prior to 1988 and who are married after 1988.

It was further held that the right to equality imposes a positive obligation on the government to ensure that everyone fully and equally enjoys all rights and freedoms. Section 21(2)(a) of the MPA was therefore declared unconstitutional to the extent that it maintains the position created by the BAA, being that marriages entered into by black couples before 1988, are automatically out of community of property. All marriages of black couples concluded out of community of property before 1988 under Section 22(6) of the BAA are declared to be marriages in community of property. Accordingly, in terms of Section 21(2)(a), all marriages that have been converted to marriages ‘in community of property’ shall now have this status, unless the affected couple has opted out of this default position by way of the prescribed High Court application.


This judgment serves to prevent the continued unfair discrimination against black couples who entered into marriages before 1988 and promotes the achievement of substantive equality. The declaration of invalidity of section 21(2)(a) of the MPA will undoubtedly have a positive impact on married women in South Africa by, amongst other things, the promotion of self-determination.

Written by Kirsten Chetty and Elani Vogel

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