Ramuhovhi and Others v President of the Republic of South Africa and Others

The applicants are children of a deceased who had entered into multiple polygamous customary marriages before the Recognition of Customary Marriages Act came into operation (pre-Act polygamous customary marriages). Under section 7(1) of the Act, such marriages continue to be governed by customary law, which vests ownership and control of marital property exclusively in husbands, with wives having no ownership rights. The deceased's wives had died, and disputes arose regarding the deceased's estate, including immovable property. The applicants challenged the constitutional validity of section 7(1), arguing it discriminated unfairly against women in pre-Act polygamous customary marriages. The High Court declared section 7(1) constitutionally invalid. An intervening applicant, Ms Maphumulo, who was the second wife in a pre-Act polygamous marriage and faced eviction from her home following her husband's death, sought to intervene to address the retrospectivity of the order.

• Whether section 7(1) of the Recognition of Customary Marriages Act unfairly discriminates against women in pre-Act polygamous customary marriages on the grounds of gender and marital status
• Whether section 7(1) violates the right to human dignity
• Whether the High Court's declaration of constitutional invalidity should be confirmed
• What the appropriate remedy should be, including the extent of retrospectivity
• Whether Ms Maphumulo should be granted leave to intervene in the confirmation proceedings

1. Ms Maphumulo granted leave to intervene. 2. Condonation granted for late filing of written submissions by third, fourth and seventh respondents. 3. Declaration of constitutional invalidity of section 7(1) of the Recognition of Customary Marriages Act confirmed. 4. Declaration suspended for 24 months to allow Parliament to correct the defect. 5. During suspension, wives and husbands in pre-Act polygamous customary marriages will have joint and equal ownership and other rights to, and joint and equal rights of management and control over, marital property (house property to be managed by husband and wife of that house jointly; family property by husband and all wives jointly). Each spouse retains exclusive rights to personal property. 6. If Parliament fails to address the defect during suspension, the interim regime continues. 7. Order does not invalidate finalized winding up of deceased estates or completed transfers of marital property. 8. Exception: transfers do not stand if transferee was aware property was subject to constitutional challenge. 9. Any interested person may apply for variation if they suffer unforeseen harm. 10. Second respondent to pay applicants' costs, including costs of two attorneys.

Section 7(1) of the Recognition of Customary Marriages Act, insofar as it subjects pre-Act polygamous customary marriages to customary law that denies wives ownership and control of marital property, constitutes unfair discrimination on the grounds of gender and marital status in violation of section 9 of the Constitution, and violates the right to dignity in section 10 of the Constitution. The discrimination is not justified under section 36. Women in pre-Act polygamous customary marriages are entitled to the same constitutional protection as women in other forms of customary marriage. The proprietary regime that applies to customary marriages must accord with constitutional values of equality and dignity. Where legislation creates unconstitutional discrimination in matrimonial property regimes, a just and equitable remedy may include suspension of the declaration of invalidity with interim relief that grants equal ownership and control rights pending legislative correction.

The Court observed that section 7(4) of the Act, which allows spouses to jointly apply to change the matrimonial property system, provides "cold comfort" to most wives in pre-Act polygamous marriages because it depends on the husband's consent, and wives may lack equal bargaining power or even awareness of their rights. The Court noted that some husbands would be reluctant to give up their position of dominance. The Court commented that it could not "comfortably" say there was "proper alignment" between the remedy and the prospective regime for new polygamous marriages, unlike in Gumede, because of complexities in polygamous marriage property regimes. The judgment discusses the distinction between "official" customary law and "living" customary law, noting that customary law was "fossilized" during colonial times and prevented from evolving. The Court affirmed that attorneys with rights of appearance in the High Court should be treated no differently from advocates regarding fees, and that denying equal treatment would be "indefensible."

This case extends the principles in Gumede v President to pre-Act polygamous customary marriages, completing the recognition that all women in customary marriages (whether monogamous or polygamous, pre-Act or post-Act) are entitled to constitutional protection against discriminatory property regimes. The judgment affirms that the Constitution does not tolerate patriarchal customary law rules that deny women ownership and control of marital property. It represents an important step in transforming customary law to align with constitutional values of equality and dignity. The case also clarifies the concept of "house property" and "family property" in polygamous customary marriages, recognizing that houses constitute distinct family units with property rights that endure beyond the dissolution of individual marriages. The judgment demonstrates judicial deference to Parliament while providing immediate interim relief to vulnerable women. The decision to award costs of two attorneys affirms equal treatment of attorneys with rights of appearance and advocates.