In KwaZulu-Natal, where the Gumedes are domiciled, customary law has been codified in the KwaZulu Act and the Natal Code. These pieces of legislation provide that in a customary marriage, the husband is the family head and owner of all family property, which he may use in his exclusive discretion. Therefore, the wife will not have any claim to the family property. The High Court found that the impugned provisions offend the equality protections afforded by sections 9(3) and (5) of the Constitution because they unfairly discriminate on the grounds of gender and race. Legal arguments and issues addressed The government contended that the legislative measures are constitutionally defensible because the Constitution obliges courts to apply customary law when it is applicable. The government further argued that the relief Ms. Gumede sought was premature and unnecessary because a decision on the proprietary consequences of her marriage was within the power of the divorce court. In the decision, the Court provided a historical overview, noting that the Act represents a belated but welcome legislative effort to remedy the lack of recognition previously accorded to marriages that were entered into in accordance with the law and culture of the African people of this country. The legislation also entrenches the equal status and capacity of spouses, and it regulates the proprietary consequences of these marriages. The impugned provisions fall into two categories: the provisions of the Act — sections 7(1) and (2) — that differentiate between the proprietary consequences of marriages entered into before and after the commencement of the Act, and the codified customary law in KwaZulu-Natal, which subjects a woman married under customary law to the marital power of her husband, who is the exclusive owner and has control of all family property. The Court notes that the provisions are self-evidently discriminatory on the ground of gender between the wife and the husband. The discrimination is on a listed ground and is therefore unfair unless it is established that it is fair (sections 9(3) and (5) of the Constitution). Within the class of women married under customary law, the legislation differentiates between a woman who is party to marriage entered into before the Act and a woman who is party to a marriage entered into after the Act. This differentiation is unfairly discriminatory. The Court considered whether the discrimination could be justified. The Court recognised that the jurisdiction conferred on a divorce court by section 8(4)(a) of the Act means that every divorce court granting a divorce decree relating to a customary marriage has the power to order how the assets of the customary marriage should be divided between the parties, having regard to what is just and equitable in each case. That, however, is no answer to or justification for the unfair discrimination based on the listed ground of gender. The provisions of section 8(4)(a) of the Recognition Act, read together with sections 7(3), (4), (5), (6) and (7) of the Divorce Act, apply only upon dissolution of the customary marriage. This does not cure the discrimination that a spouse in a customary marriage has to endure during the course of the marriage. Further, if Ms. Gumede approached the divorce court relying on section 8(4)(a) of the Recognition Act, she might be severely prejudiced, because under the codified customary law, all the family property belongs to her husband.
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