Mrs Agnes Sithole and Mr Gideon Sithole married in 1972 under section 22(6) of the Black Administration Act 38 of 1927, which automatically rendered marriages between Black spouses out of community of property unless a specific declaration was made. Mrs Sithole was unaware that her marriage was out of community of property and did not know that she could alter the matrimonial property regime after the repeal of section 22(6) in 1988. During the marriage, she contributed financially and non-financially to the household. In 2000 the couple acquired a house registered solely in Mr Sithole’s name. After marital relations deteriorated, Mr Sithole intended to sell the house, prompting Mrs Sithole to seek legal protection. She challenged section 21(2)(a) of the Matrimonial Property Act 88 of 1984, arguing that it perpetuated racial and gender discrimination by maintaining the default position created by apartheid-era legislation. The Commission for Gender Equality joined the application in support of similarly affected women.
Section 21(2)(a) of the Matrimonial Property Act 88 of 1984 was declared unconstitutional and invalid to the extent that it perpetuates discrimination created by section 22(6) of the Black Administration Act. All marriages of Black persons concluded under section 22(6) before the 1988 amendment were declared to be marriages in community of property, subject to an opt-out mechanism. The order was made prospective, preserving past legal consequences. The Minister of Justice and Correctional Services was ordered to pay costs, and the first respondent’s attorney was ordered to forfeit his legal fees.
The case is significant for advancing substantive equality in South African family law by dismantling the lingering effects of racially discriminatory apartheid legislation. It rectified the default matrimonial property position of hundreds of thousands of Black women who remained disadvantaged due to lack of knowledge or access to legal remedies. The judgment underscores the constitutional obligation to remedy historical discrimination and affirms that formal repeal of discriminatory laws is insufficient where their effects persist.