1 November 2018
Women in the Transkei have won a big victory in the Constitutional Court. If married under the old Transkei Marriage Act they will be less likely to be left destitute if they get divorced.
Holomisa vs Holomisa dealt with the constitutionality of the Divorce Act. This Act allows a court to order the property of one spouse to be redistributed to the other spouse when they get divorced if are they married out of community of property.
Justice Johan Froneman, in a unanimous judgment delivered on 23 October, ruled that the sections of the Divorce Act that allow this are unconstitutional. This is because they irrationally discriminated against women married under the Transkei Marriage Act.
If married out of community of property, each spouse owns their individual assets. If married in community of property each spouse jointly owns their own assets with their spouse. Assets include anything with a monetary value, such as a car, house or money in a bank account.
When divorced, the couple’s marital property system can make a big difference to the livelihood of the poorer spouse. Marriages in community of property tend to benefit the poorer spouse. This is because when a couple married in community of property get divorced each spouse usually gets half the other spouse’s assets. By contrast, marriages out of community of property tend to disadvantage poorer spouses; usually women. When a couple married out of community of property gets divorced they leave the marriage with their personal assets only: they do not have a right to half the assets of their spouse.
Women often stop earning an income when they get married. They tend to perform unpaid work in the family home. They often do not have much savings at the time of the divorce. If married out of community of property women can be left destitute.
Before 1988, black people could only get married under the Black Administration Act. If they lived in the Transkei they could only get married under the Transkei Marriage Act. All white people were married under the Marriage Act. Under the Transkei Act and the Black Administration Act all marriages are out of community of property. They would only be in community of property if the couple (1) made an agreement – called an antenuptial contract – saying they wanted their marriage to be in community of property, or (2) made an oath before a magistrate or marriage officer saying they wanted their marriage to be in community of property. Under the Marriage Act all marriages are in community of property unless the couple makes an antenuptial contract saying they want their marriage to be out of community of property.
In 1988 the apartheid government repealed parts of the Black Administration Act and amended the Marriage Act and Divorce Act. The amendments meant all people – regardless of race – could get married under the Marriage Act. This meant all marriages after 1988 would be in community of property unless the couple made an antenuptial contract saying they wanted it to be out of community of property. However, the amendments did not apply to the Transkei Marriage Act. This was because the apartheid government viewed the Transkei as an independent state: the Transkei Act took precedence over the South African Marriage Act.
An amendment to the Divorce Act in 1988 tried to lessen the harsh consequences for poorer spouses married out of community. The amendment said a court could redistribute the property of one spouse to another spouse when divorced if the couple was married out of community under the Black Administration Act. The purpose was to ensure poorer spouses married out of community of property would have some assets to support themselves once divorced. However, the amendment did not give a court this power if the couple married out of community of property under the Transkei Marriage Act. This was the problem the Constitutional Court had to resolve in Holomisa v Holomisa.
Mr and Mrs Holomisa married in the Transkei in 1995. They did not make an antenuptial contract or oath before a marriage officer or magistrate saying they wanted their marriage to be in community of property. Their marriage was therefore out of community of property. While the Transkei Act was repealed by the 1998 Recognition of Customary Marriages the repeal did not invalidate marriages under the Transkei Act. This is because the Recognition of Customary Act only applies prospectively (going forward) and not retrospectively (going backward).
In 2014 Mr Sango Patekile Holomisa started divorce proceedings in Mthatha. He argued the marriage was out of community of property because the couple married under the Transkei Marriage Act. Mrs Bukelwa Nolizwe Holomisa, represented by Legal Aid, argued the marriage was in community of property. The magistrate ruled the marriage was in community which the Mthatha High Court confirmed on appeal.
The Supreme Court of Appeal overturned the High Court ruling and the Magistrate Court. Justice Zukisa Tshiqi said the couple did not make an antenuptial contract or oath stating they wanted their marriage to be in community of property. If Mrs Holomisa wanted to be married in community of property, then she should have made an antenuptial contract or an oath with Mr Holomisa. Justice Tshiqi refused to consider whether the Divorce Act was unconstitutional. This was because Mrs Holomisa raised the constitutional argument for the first time on appeal. Procedurally this is generally not allowed.
Because Mrs Holomisa only raised the constitutional challenge for the first time in the Supreme Court of Appeal she had to apply for direct access to the Constitutional Court. Direct access is when the Constitutional Court decides a legal issue without another court (such as the High Court or Supreme Court of Appeal) first deciding that issue.
Justice Froneman said the Constitutional Court is generally reluctant to grant direct access. Direct access means the Court cannot benefit from hearing other courts views on the same issue. However, direct access was justified in this case as it was not complicated. It was unnecessary for the Constitutional Court to first hear the views of other judges before making a decision.
Justice Froneman said the exclusion of women married out of community of property under the Transkei Act was irrational. Counsel for the Minister and Government could offer no justification for excluding those women from the Divorce Act’s redistribution section.
The Court found that the exclusion in the Divorce Act was unconstitutional. It suspended the order of invalidity for 24 months to allow Parliament to fix the problem with the Divorce Act. During this period the Divorce Act’s redistribution section must be read as including women married out of community under the Transkei Act.
This case is an important decision for vulnerable women married out of community under the Transkei Marriage Act. It will protect their interests if they get divorced, so that they are not left destitute. This is in line with the Constitution’s right to equality.
In principle the decision applies equally to men and women. There is no reason why men married out of community of property under the Transkei Act could not also benefit from the redistribution provision if the requirements are met. Women are, however, usually the poorer spouse. The decision will have a greater impact on the rights of women than men.