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Faculty of Law

30/10/2018

Mrs Bukelwa Nolizwe Holomisa’s Court Case

Faculty of Law is proud of Adjunct Professor Lilla Crouse, who achieved a phenomenal success in the Constitutional Court last week.  Prof Crouse represented Mrs Bukelwa Nolizwe Holomisa through the Legal Aid Board. The Constitutional Court declared unconstitutional a section in the Divorce Act which prevented women married out of community of property under the former Transkei Marriage Act from claiming redistribution of assets on divorce - a ground-breaking judgment that will give women a better financial deal. The Court held that:

“The applicant did not seek a costs order. She is represented by Legal Aid South Africa. The applicant’s Legal Aid representatives have done her, women in her position and our justice system a great service.”

Professor Lilla Crouse explained the case saying, it is befitting that this matter was heard in August - a month in which we remember the role that women played in our history and a month in which we reflect on gender equality. Our client was a woman who was left destitute after 19 years of marriage. This judgment means that our client now has the right to share in her husband’s estate. The Constitutional Court win for our client was hopefully also a win against paternalism and an effort to give, especially rural women, more dignity. An organisation like Legal Aid SA that provides equality of arms to vulnerable and poor persons is an institution to be protected in our young democracy.

ConCourt unravels ‘tangled web of post-apartheid legislation’

The Constitutional Court has declared unconstitutional a section of the Divorce Act which prevented women married under the former Transkei Marriage Act, out of community of property, from claiming redistribution of assets on divorce – a groundbreaking judgment that will give women a better financial deal. In a unanimous judgment written by Justice Johan Froneman, the court said that sub-section 7(3) of the Divorce Act created a ‘discriminatory oddity’ that prevented judges from using their discretion to order the redistribution of assets for women married out of community of property in the former Transkei. Courts are granted discretion to do so where they consider it just and equitable to benefit women who married out of community of property. But due to a ‘tangled web of post-apartheid legislation’, this was not the case for women married under the Transkei Marriage Act, Froneman wrote, according to News24. The applicant and her ex-husband, the first respondent, were married in the former Transkei on 16 December 1995. The divorce application was heard in the Regional Court in Mthatha in 2014. In the Constitutional Court, in her heads of argument, the applicant said her ex-husband, a former Deputy Minister, a chief and an advocate, accused her of not obeying him in ‘matrimonial matters’. She said he also told the court that fathering children outside of their marriage was not grounds for divorce, and ‘illegally’ married another woman under customary rites while still married to the applicant. When the divorce was granted, the applicant said she was not given notice of the court date, and the matter went ahead without her. A pre-trial conference was also held in her absence, she said. The magistrate ruled that the marriage was in community of property, granted the divorce and made an order ordering a division of the joint estate. However, that was changed on appeal and when the matter reached the SCA it reversed the decision, meaning the woman no longer benefited from any division of the former couple's estate.

Bukelwa Nolizwe Holomisa v Sango Patekile Holomisa and Another

 

In the apex court, it was conceded that the marriage was out of community of property, but the applicant wanted the relevant section of the Divorce Act declared unconstitutional. The court said that the Transkei Marriage Act made marriages out of community of property by default, unless there was an ante-nuptial contract in place, notes News24. The ‘anomaly’, said the court, arose from ‘the tangled net of post-apartheid legislation that sought, in good faith, to regularise the position in democratic SA but failed to do so completely’. A number of legislative changes made post-1994 to ‘make uniform’ the rights of people living in the former homelands had not assisted people such as the applicant, said the court. ‘The discrimination in this case is a relic of SA's apartheid history which sought to disadvantage women on the basis of a number of intersecting grounds: gender, race, ethnicity, marital status, geographic location and socio-economic status,’ Froneman wrote, adding that while Parliament did not intentionally try to discriminate against women from the former Transkei when it did not ‘rationalise’ the Transkei Marriage Act, ‘the discrimination continues’. ‘Is there any reason why Transkei women in the position of the applicant should be deprived of the benefits of a possible just transfer of assets on divorce in terms of section 7 (3) of the Divorce Act? I can think of none. Tellingly, neither could the Minister (of Justice), the second respondent,’ Froneman wrote. The court ruled that the order is suspended for 24 months to allow Parliament time to remedy the legislation.