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

Elizabeth Gumede and Amos Gumede entered into a monogamous customary marriage in 1968 in KwaZulu-Natal. Their marriage therefore pre-dated the commencement of the Recognition of Customary Marriages Act 120 of 1998. Under the Recognition Act, customary marriages entered into before 15 November 2000 were governed by customary law, while those entered into after that date were marriages in community of property. In KwaZulu-Natal, customary law had been codified in the KwaZulu Act on the Code of Zulu Law and the Natal Code of Zulu Law, which vested ownership and control of all family property exclusively in the husband as family head. The marriage broke down irretrievably, and divorce proceedings were pending. Mrs Gumede, an elderly woman without independent means or maintenance from her husband, approached the High Court to challenge the constitutionality of the statutory provisions governing the proprietary consequences of her marriage, contending that they unfairly discriminated against women married under customary law before 2000 on the grounds of gender and race. The High Court declared the relevant provisions unconstitutional, and the matter came before the Constitutional Court for confirmation.

The Constitutional Court confirmed the order of constitutional invalidity. Section 7(1) of the Recognition of Customary Marriages Act and the words limiting section 7(2) to marriages entered into after commencement were declared unconstitutional. Sections 20 and 22 of the KwaZulu Act and the Natal Code were also declared invalid. The Court ordered that monogamous customary marriages entered into before 15 November 2000 are marriages in community of property, with immediate effect.

The case is a landmark decision affirming substantive gender equality in customary marriages. It dismantled a discriminatory property regime that left women in customary marriages economically vulnerable and entrenched patriarchy through codified customary law. Gumede is a foundational authority on the constitutional development of customary law, confirming that customary law must evolve in line with the Bill of Rights and that legislative distinctions disadvantaging African women will be subjected to strict constitutional scrutiny.