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By Bongani Nkosi 
1 hour ago
Johannesburg: For any black couple who were married before 1988 in the country, their union is likely to remain outside the community of ownership, in accordance with the apartheid Black Administration Act (BAA).
The Constitutional Court will be asked at a hearing scheduled for later this month to address this legislative anomaly.
“The BAA unfairly discriminated against black women compared to other women,” said the Legal Resource Center (LRC) in documents it filed in the supreme court of the matter.
“Under Section 22 (6), the default position for black couples was marriage outside the community of property. On the contrary, the law that regulates civil marriages between couples of all other races establishes that the default position is marriage in community of property.
“The BAA resulted in black women receiving less protection than other women,” the center added.
The LRC filed the case on behalf of Agnes Sithole, a 72-year-old housewife from Pinetown in KwaZulu-Natal.
Sithole faced homelessness after the collapse of his civil marriage in 1972.
She first learned in 2018 that she was married outside of the property community, according to the BBA.
This meant that her husband could carry out a threat that he had made to sell their family home without her consent.
An estimated 400,000 African women who were married before 1988 could be in a similar position to Sithole’s, according to expert research the LRC cited to support the request.
The challenged legislation should be repealed as unfairly discriminatory on the basis of race and gender, the LRC said.
“It also discriminates against older black women who were married before 1988 on the basis of their age. The consequences are illustrated in Ms. Sithole’s position. She is in danger of losing her marital home and has been forced to intercept her husband from getting rid of him before this request, ”said the center.
“He has spent his adult life contributing to the joint household and raising the children, but he cannot enjoy the fruits of his labor.”
The significance of 1988 in the matter was that modifications were made to the marriage law that governs blacks in that year.
Black couples were given two years to modify their marriage contracts.
But the Commission for Gender Equality said there was nothing to indicate that couples took advantage of this 1988 waiver.
“The amendments have failed to provide real, effective or meaningful relief to married black women subject to Section 22 (6) of the BAA,” the LRC said.
The supreme court will be asked to declare that all marriages performed under the BAA were in community property.
“Couples who wish to opt out of this position … can do so by executing and registering a notarial contract to that effect,” the newspapers said.
The star
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