that provided that the family head, the husband, was the owner of all family property, and the wife had no claim to the property during the marriage or if the marriage dissolved. Section 22 of the Natal Code provided that “inmates” of a kraal were under the control of the family head.
were governed by customary law and out of community of property, while section 7 provided that customary marriages after the date of commencement of the Act were marriages in community of property. The Constitutional Court upheld the high court’s ruling of constitutional invalidity and found that the differentiation in rights between pre-Act polygamous marriages and new polygamous customary marriages amounted to unfair discrimination. , which provided that black couples who concluded civil marriages under the BAA were automatically married out of community of property.
The laws that perpetuated the denial of Ms Sithole’s access to and control of family property both during and upon the dissolution of her marriage was struck down by the Constitutional Court on 14 April 2021 in a bid to foster security of tenure, financial freedom and dignity in old age.
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