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On 23 October 2018 at 10h00 the Constitutional Court handed down judgment in the application by Mrs Bukelwa Nolizwe Holomisa for leave to appeal against an order of the Supreme Court of Appeal (SCA) as well as an application for direct access for a determination as to the constitutionality of section 7(3) of the Divorce Act 70 of 1979.

The appeal stemmed from divorce proceedings initiated by the first respondent Mr Sango Patekile Holomisa in the Regional Court (RC).  The appeal concerned whether the marriage entered into between Mrs Holomisa and Mr Holomisa was in or out of community of property for purposes of determining how the estate should be divided in divorce proceedings; the application for direct access concerned the constitutionality of section 7(3) of the Divorce Act insofar as it does not apply to marriages entered into under the Transkei Marriage Act 21 of 1978 (Transkei Marriage Act).

Mr and Mrs Holomisa were married under the Transkei Marriage Act.  According to the marriage certificate the parties were married “without an antenuptial contract”.  Therefore in terms of the Transkei Marriage Act, this marriage was out of community of property, which was the default position by law in the former Transkei before 2000.  It was accepted by all parties that the marriage was out of community of property.  Section 7(3) of the Divorce Act allows a court to order a just and equitable transfer of assets during divorce proceedings for marriages entered into before the commencement of certain rationalisation laws.  It was accepted by all parties that section 7(3) did not include women married under the Transkei Marriage Act.

At the Supreme Court of Appeal, Mrs Holomisa raised for the first time the issue of the constitutional invalidity of section 7(3).  The Supreme Court of Appeal held that the applicant could not raise this challenge for the first time on appeal and without it being properly pleaded and concluded that the marriage had been out of community of property.

In the Constitutional Court, the main bone of contention was the rationalisation of marriage laws across the former homelands.  The Court was asked to decide whether section 7(3), in its failure to rationalise the position of women in the former Transkei, was constitutionally invalid.

In a unanimous judgment written by Froneman J, the Constitutional Court, granted direct access and leave to appeal, and upheld the appeal.  In doing so, it considered the exceptional factors of this case, namely that the discrimination experienced by Mrs Holomisa and women in the former Transkei was indefensible and that Parliament had failed comprehensively to rationalise the marriage laws.  The Court made an order declaring the constitutional invalidity of section 7(3).  The Court ordered that the declaration of invalidity be suspended for 24 months to allow Parliament to remedy the legislative defect.  During the period of suspension, section 7(3) is also to include marriages entered into under the Transkei Marriage Act without ante-nuptial contracts.