Victory for women in customary unions

Several Constitutional Court judgments have gone a long way towards strengthening South Africa's democracy
Several Constitutional Court judgments have gone a long way towards strengthening South Africa's democracy
Image: JAMES OATWAY

Thousands of women in customary marriages that have not been recognised will soon have equal rights to ownership of marital property and assets when a bill that seeks to protect them becomes law.

But the reprieve in law could be too little, too late for a pensioner widow who had been married for 27 years in terms of customary law but battled to inherit her late husband’s fleet of taxis after a challenge by the deceased’s son, who was born out of wedlock.

The pensioner approached Old Mutual’s head of financial education, John Manyike,  for help after she was turned away by the master of the high court.

“When she went to the master of the high court trying to get herself to be appointed as an executor, they asked for a marriage certificate and she presented a lobola letter and they said that’s not enough, and she got stuck there,” Manyike said.

Manyike said the amended law would put wealth in the hands of women who had unfairly been discriminated against.

“In the previous piece of legislation, technically you [women] were like a minor even though you’re married because you could not share in the assets, and it was open to abuse that if your customary-law husband is able to marry a second and a third wife, you cannot access marital property,” Manyike said.

He said he had come across several cases where women gave up on what was rightfully theirs because they did not have the resources to fight in courts.

In 2017, the Constitutional Court ordered parliament to amend certain parts of the Recognition of Customary Marriages Act of 1998 to give women in customary marriages equal rights to assets and properties.

Women in such unions had in the past been discriminated against. Often when there were disputes and conflicts, including the death of a spouse, many lost out.

University of KwaZulu-Natal cultural expert Sihawu Ngubane said the Recognition of Customary Marriages Amendment Bill, which is before the National Assembly, would  be a big breakthrough for women in customary marriages as they would  be treated as equal partners.

“It will be a breakthrough for all women of SA when the bill has been passed because they’ll enjoy equal rights,” Ngubane said.

The second house of parliament, the National Council of Provinces, is now the last step before the bill gets the stamp of approval after it was passed in parliament in July last year.

PR Specialist Lerato Sengadi’s fight to be declared the customary wife of late rapper Jabulani “HHP” Tsambo ended in victory in the Supreme Court of Appeal (SCA) two weeks ago when the court dismissed Tsambo’s family appeal against a 2018 high court ruling recognising Sengadi as the lawful wife.

Sengadi said her fight was not for selfish reasons as her motivation was black widows who had been neglected after their husbands died.

“I’ve seen what happened to me happen to other women and my mother watched it happen to my grandmother — now she’s watching it happen to me,” Sengadi said. 

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