In the case of Gumede (born Shange) v President of the Republic of South Africa and Others (CCT 50/08) [2008] ZACC 23 (8 December 2008) the Constitutional Court declared on 8 December 2008 that a KwaZulu-Natal woman married in terms of customary law was entitled to property accumulated before she and her husband began divorce proceedings.

Judge Dikgang Moseneke said there was unanimous judgment that a previous order by the Durban High Court – which said certain aspects of law around the matter were constitutionally invalid – be upheld. The decision means ALL customary marriages are in community of property, providing women with fair access to resources acquired during the course of their customary marriages.

Elizabeth Gumede was married in 1968 when the customary laws of that time meant that in a divorce the man would get everything and she would be entitled to nothing. The law has since changed, and customary marriages after 15 November 2000, are in community of property. The Durban High Court had already ruled in her favour on the grounds of constitutional invalidity, and she asked the Constitutional Court to confirm this. The KwaZulu-Natal MEC for Traditional and Local Government and the Home Affairs Minister opposed it. Moseneke found that aspects of the law for a case like Gumede’s were discriminatory on the grounds of gender and therefore inconsistent with the Constitution and invalid. ‘The case underlines the stubborn persistence of patriarchy and conversely, the vulnerability of many women during and upon termination of a customary marriage,’ he said.

The Court described the Gumede case as one concerning a claim of unfair discrimination on the grounds of gender and race in relation to women who are married under customary law as codified in the province of KwaZulu-Natal. It brings into sharp focus the issues of ownership, including access to and control of family property by the affected women during and upon dissolution of their customary marriages. At one level, the case underlines the stubborn persistence of patriarchy and conversely, the vulnerability of many women during and upon termination of a customary marriage. At another level, the case poses intricate questions about the relative space occupied by pluralist legal systems under the umbrella of one supreme law, which lays down a common normative platform.

Judge Moseneke concluded in his judgment that ‘For the sake of completeness I restate the principal findings I have made:

1. The order of constitutional invalidity made by the High Court in relation to certain legislation (sections 7(1) and (2) of the Recognition Act; section 20 of the KwaZulu Act; and sections 20 and 22 of the Natal Code) should be confirmed.
2. The impugned legislative provisions unfairly discriminate against the applicant and other women similarly situated.
3. The government has failed to furnish justification for the legislative discrimination on a listed ground, the discrimination is therefore unfair, and the provisions concerned are inconsistent with the Constitution and invalid.
4. The order should—
i. not limit its retrospective effect on parties to existing marriages;
ii. not suspend the declaration of invalidity; and
iii. if necessary, have a saving provision in favour of third parties or a generic order permitting a party claiming specific prejudice arising from the retrospective change of the matrimonial regime to approach a court for appropriate relief.
5. The order of constitutional invalidity in relation to section 7(1) of the Recognition Act is limited to monogamous marriages and should not concern polygamous relationships or their proprietary consequences.
6. The order we are to make should not affect customary marriages that have been terminated by death or divorce before this order is made.
7. Any exercise of marital power that is made before the date of the order should not be undone only as a result of this order.
8. The Minister (sixth respondent) and the MEC (fourth respondent) should be ordered to pay costs of the applicant in the High Court and in this Court’.