Elizabeth Gumede (born Shange) v President of the Republic of South Africa and Others

Mrs Elizabeth Gumede and her husband entered into a customary marriage on 29 May 1968 in KwaZulu-Natal, predating the Recognition of Customary Marriages Act 120 of 1998 which commenced on 15 November 2000. During the 40-year marriage, Mrs Gumede maintained the household and was the primary caregiver but was not permitted to work by her husband. The family acquired two homes and furniture/appliances. The marriage broke down irretrievably and Mr Gumede instituted divorce proceedings. Under codified customary law in KwaZulu-Natal, the husband as family head was the exclusive owner and controller of all family property. Mrs Gumede challenged the constitutional validity of provisions that subjected her marriage to customary law proprietary consequences which differed from post-Recognition Act marriages which are presumed to be in community of property. She approached the High Court seeking to invalidate statutory provisions she contended unfairly discriminated against women in pre-Recognition Act customary marriages on grounds of gender and race.

• Whether section 7(1) and section 7(2) of the Recognition of Customary Marriages Act 120 of 1998, which differentiate between the proprietary consequences of customary marriages entered into before and after the commencement of the Act, constitute unfair discrimination on the grounds of gender and/or race in violation of section 9 of the Constitution
• Whether section 20 of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and sections 20 and 22 of the Natal Code of Zulu Law (Proclamation R151 of 1987), which vest ownership and control of family property exclusively in the male family head, constitute unfair discrimination on the grounds of gender and/or race
• Whether the discrimination, if found, can be justified under section 36 of the Constitution
• Whether the equitable jurisdiction conferred by section 8(4)(a) of the Recognition Act read with section 7(3) of the Divorce Act provides adequate protection and remedy for wives in pre-Recognition Act customary marriages
• Whether the order of constitutional invalidity should have retrospective effect and whether it should be suspended to allow legislative correction
• Whether customary law should be developed rather than the impugned legislation being declared invalid

The Constitutional Court: (a) granted condonation for late filing of appeal by the fourth and sixth respondents; (b) dismissed the appeal against the High Court order; (c) confirmed the High Court's order of constitutional invalidity; (d) declared section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 inconsistent with the Constitution and invalid to the extent it relates to monogamous customary marriages; (e) declared the words "entered into after the commencement of this Act" in section 7(2) of the Recognition Act inconsistent with the Constitution and invalid, and severed them; (f) declared section 20 of the KwaZulu Act on the Code of Zulu Law 16 of 1985 inconsistent with the Constitution and invalid; (g) declared section 20 of the Natal Code of Zulu Law (Proclamation R151 of 1987) inconsistent with the Constitution and invalid; (h) declared section 22 of the Natal Code inconsistent with the Constitution and invalid; (i) provided that the orders shall not affect legal consequences of any act done or omission or fact existing before the order; (j) permitted any interested person to approach the Court for variation in case of serious administrative or practical problems; and (k) ordered the fourth and sixth respondents to pay costs jointly and severally, including costs of two counsel.

Statutory provisions that subject women in pre-Recognition Act customary marriages to a proprietary regime that vests exclusive ownership and control of family property in their husbands constitute unfair discrimination on the ground of gender in violation of section 9 of the Constitution. Such discrimination cannot be justified under section 36 of the Constitution. The fact that a divorce court may exercise equitable jurisdiction upon dissolution of a marriage does not cure the discrimination suffered during the subsistence of the marriage. Codified customary law, like all law, must comply with the Constitution and its equality and dignity guarantees. Where codified customary law is inconsistent with the Constitution, it should be declared invalid rather than developed, as development applies to living customary law. All customary marriages, whether entered into before or after the Recognition of Customary Marriages Act, should be subject to the same proprietary regime (in community of property unless excluded by antenuptial contract) to achieve gender equality. Section 8(4)(a) of the Recognition Act, which confers on divorce courts the powers in sections 7-10 of the Divorce Act, is not limited to customary marriages out of community of property but applies to all customary marriages, reflecting the fact that customary law does not recognize the common law distinction between marriages in and out of community of property.

The Court observed that in pre-colonial African society, marriage was a bond between families with communal substance, women held positions of pride and respect with subtle but significant influence, and ownership of family property was collective rather than exclusive. However, during colonial times, customary law was prevented from evolving, was recorded and enforced by those who did not practice it, and became fossilized in codes that displayed little understanding of the value system animating customary law. The codification of customary law fostered a particularly crude form of gendered inequality that left women and children marginalized and vulnerable. The Court noted that official customary law should not be equated with living indigenous/customary law. The Court drew attention to a possible legislative lacuna regarding the proprietary consequences of pre-Recognition Act polygamous customary marriages following the striking down of section 7(1), suggesting Parliament should address this. The Court noted that a provision similar to section 11(4) of the Matrimonial Property Act (protecting legal consequences of acts done before abolition of marital power) could serve as a model for managing third party interests during the transition. The Court emphasized that an important constitutional objective is to be "united in our diversity" and that the Constitution protects and celebrates difference, including a flourishing constitutionally compliant customary law existing alongside common law and legislation.

This landmark judgment confirms that customary law, including codified customary law, must comply with constitutional guarantees of equality and dignity. It eliminates unfair gender discrimination in the proprietary consequences of pre-Recognition Act customary marriages in KwaZulu-Natal, bringing them into alignment with post-Recognition Act marriages which are presumed to be in community of property. The judgment affirms that the Recognition of Customary Marriages Act is a remedial statute designed to transform spousal relations in customary marriages and entrench equal status and capacity of spouses. It confirms the constitutional imperative to develop customary law (where it is living law) and to test all law, including codified customary law, against the Bill of Rights. The judgment clarifies that section 8(4)(a) of the Recognition Act confers equitable jurisdiction on divorce courts in relation to all customary marriages, not only those out of community of property. It demonstrates the Court's approach to balancing cultural and religious rights with fundamental rights to equality and dignity, affirming that cultural practices cannot be maintained where they are inconsistent with the Bill of Rights. The retrospective effect of the order significantly advances the rights of women in longstanding customary marriages who have been historically marginalized and rendered economically vulnerable by patriarchal property regimes.