The Legal Implications of Sithole v Sithole 2021 5 SA 34 (CC) on African Spouses in Old Civil Marriages

Abstract

In Sithole v Sithole 2021 5 SA 34 (CC) the Constitutional Court held that the differentiation in the default matrimonial property regime between spouses in civil marriages entered into before 2 December 1988 (old civil marriages) by Africans under section 22(6) of the Black Administration Act 38 of 1927 (hereafter the BAA) and spouses in civil marriages entered into by Africans after 2 December 1988 (new civil marriages) as well as those of other races amounted to unfair discrimination on account of race, gender and age. Under section 22(6) of the BAA, old civil marriages were by default out of community of property. New civil marriages were by default in community of property. The court, therefore, confirmed the declaration that sections 21(2)(a) and 25(3) of the Matrimonial Property Act were unconstitutional and invalid in so far as they perpetuated the discrimination in section 22(6) of the BAA. The court held that all old civil marriages were now in community of property, profits and loss. This note is a critical discussion of this judgment in so far as it extended community of property not only to the litigant and similarly placed spouses, but also to non-litigants who may not have desired community of property to apply to their marriages.