The Constitutional Court has raised concern that some of apartheid’s oppressive and discriminatory laws still impact on black people’s lives, 27 years into democracy. The Mercury reports Justice Zukisa Tshiqi dropped some stinging words yesterday about the retention of racist laws in her judgment that declared unconstitutional apartheid legislation that rendered all black people’s marriages prior to 1988 automatically out of community of property. She penned the apex court’s unanimous judgment in the ground-breaking case that Agnes Sithole (72) pursued against apartheid’s Black Administration Act (BAA). This piece of legislation meant Sithole’s marriage to Gideon Sithole – entered into on in December 1972 – was automatically out of community of property by virtue of their race. She faced the threat of being kicked out of the house they bought in 2000 after their relationship soured. Her husband, who died this year at the age of 74, had threatened to sell the home, as it was registered in his name. His wife obtained an interdict to stop him from selling the home, pending the finalisation of this case.

The Constitutional Court heard that the two were married out of community of property by virtue of their race. Attempts in 1988 to reverse the impact of the BAA through the Matrimonial Property Act (MAP) did not assist, the court heard. The Mercury report says black couples were given two years to change their matrimonial property regime via the MAP. Those who were unaware of this special dispensation remained married out of community of property, the Bench heard. Tshiqi affirmed the submissions that most women did not change their matrimonial regimes because they were unaware of their legal rights and the apartheid government did not place emphasis on informing them of their rights. ‘For these reasons, few people took up the opportunity to execute and register notarial contracts to modify their matrimonial regime,’ said Tshiqi.

The BAA amounted to unfair discrimination, she ruled. She described it as legislation ‘based on a twisted notion that black and white people were not worthy of the same treatment’. Women of other races married before 1988 ‘did not suffer the prejudices suffered by the likes of Mrs Sithole’, said Tshiqi. ‘The fact that the ghosts of our ugly past still rear their ghastly heads in the form of provisions like this many years after the advent of democracy is unacceptable,’ said Tshiqi. ‘The dire consequences suffered by black people as a result of such discriminatory laws make it compelling that such laws should be obliterated from our statutes urgently.’ She ordered that all black people’s marriages concluded before 1988 should be declared to be in community of property, except for those couples who opted for a marriage out of community of property.

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