IND2601
Assignment 1 Semester 2 2024
, 1. Gumede v President of the Republic of South Africa & Others (CCT 50/08 [2008]
ZACC 23, 2009(3) BCLR 243)
(i) The Facts of the Case (5)
The case of Gumede v President of the Republic of South Africa & Others involved
Ms. Stella Gumede, who was married to her husband under customary law. Their
marriage was entered into before the commencement of the Recognition of Customary
Marriages Act 120 of 1998 (RCMA), which meant that it was governed by the Natal
Code of Zulu Law. Under this Code, a wife had no rights to marital property, which was
solely controlled by the husband. Upon her husband's decision to divorce her, Ms.
Gumede was left with no claim to any of the marital property, leading her to challenge
the constitutionality of the RCMA and the Natal Code on the grounds of gender
discrimination.
(ii) The Legal Question Answered by the Court (7)
The central legal question in this case was whether the provisions of the RCMA,
particularly sections 7(1) and 7(2), were constitutional. These sections stipulated that
customary marriages entered into before the RCMA's enactment were governed by
customary law, while those entered into after were governed by the Act. Ms. Gumede
argued that this distinction discriminated against women in pre-Act marriages because
customary law, as applied, deprived them of any rights to marital property, thereby
violating their rights to equality and dignity under the South African Constitution.
(iii) The Decision of the Court and Reasons for the Judgement (8)
The Constitutional Court ruled in favor of Ms. Gumede, declaring sections 7(1) and 7(2)
of the RCMA unconstitutional. The Court found that these provisions perpetuated
gender discrimination by upholding patriarchal customs that deprived women of
property rights in marriages concluded before the Act. The Court held that the
Assignment 1 Semester 2 2024
, 1. Gumede v President of the Republic of South Africa & Others (CCT 50/08 [2008]
ZACC 23, 2009(3) BCLR 243)
(i) The Facts of the Case (5)
The case of Gumede v President of the Republic of South Africa & Others involved
Ms. Stella Gumede, who was married to her husband under customary law. Their
marriage was entered into before the commencement of the Recognition of Customary
Marriages Act 120 of 1998 (RCMA), which meant that it was governed by the Natal
Code of Zulu Law. Under this Code, a wife had no rights to marital property, which was
solely controlled by the husband. Upon her husband's decision to divorce her, Ms.
Gumede was left with no claim to any of the marital property, leading her to challenge
the constitutionality of the RCMA and the Natal Code on the grounds of gender
discrimination.
(ii) The Legal Question Answered by the Court (7)
The central legal question in this case was whether the provisions of the RCMA,
particularly sections 7(1) and 7(2), were constitutional. These sections stipulated that
customary marriages entered into before the RCMA's enactment were governed by
customary law, while those entered into after were governed by the Act. Ms. Gumede
argued that this distinction discriminated against women in pre-Act marriages because
customary law, as applied, deprived them of any rights to marital property, thereby
violating their rights to equality and dignity under the South African Constitution.
(iii) The Decision of the Court and Reasons for the Judgement (8)
The Constitutional Court ruled in favor of Ms. Gumede, declaring sections 7(1) and 7(2)
of the RCMA unconstitutional. The Court found that these provisions perpetuated
gender discrimination by upholding patriarchal customs that deprived women of
property rights in marriages concluded before the Act. The Court held that the
