CGE Successfully Litigates on Redistribution Orders in Constitutional Court.

Date: 17 November 2023

Opinion Piece By: Bradley Swanepoel


CGE Successfully Litigates on Redistribution Orders in Constitutional Court.

In the recent decision of EB (born S) v ER (born B) and others; KG v Minister of Home Affairs and others [2023] ZACC 32, the Commission for Gender Equality (‘CGE’) successfully litigated on section 7(3) of the Divorce Act 70 of 1979 in the Constitutional Court. In its order, the court declared section 7(3) unconstitutional because it infringed the right to equality contained in section 9 of the Constitution for the Republic of South Africa, 1996.

In 1984 the Matrimonial Property Act 88 of 1984 (‘the MPA’) introduced the accrual system into marriages out of community of property in South Africa. This system provided that upon the termination of such a marriage, either by divorce or the death of one spouse, the spouse whose estate had grown the least in value during the marriage had a claim against the other spouse, or their estate, for half of the difference between the accrual of the spouses’ respective estates.

Spouses already married out of community at the time of the passing of the MPA were given a two-year window period to include the accrual system into their marriage regimes, should they wish to.

At the same time, section 7(3) of the Divorce Act 70 of 1979 was introduced. This section empowered a court granting a decree of divorce in a marriage out of community of property, and which marriage had been entered into prior to the MPA’s commencement, to make an order that the assets of one spouse be transferred to the other spouse where it was just and equitable to do so. This is known as a ‘redistribution order.’

The CGE’s litigation related to a wife who had married after the commencement of the MPA. Consequently, section 7(3) was not available to her as a remedy in her divorce proceedings because the marriage was concluded after the commencement of the MPA.

At the Constitutional Court, it was argued that section 7(3) afforded a legal remedy to someone who had married before the commencement of the MPA, but not  afterwards, and therefore infringed the right to equality in section 9 of the Constitution.

In determining whether section 7(3) constituted unfair discrimination, the court began its analysis by noting that in South Africa today, the reality is that when marriages fail, the absence of a redistribution order often prejudiced women, a fact which the expert evidence before the court confirmed.

Thus, although the differentiation was ostensibly based on the date of the marriage, the burden that the section indirectly created fell heavily on women, and the section therefore treated women in marriages out of community of property entered prior to the enactment of the PMA, differently to such marriages entered after the Act’s commencement. While the differentiation is not directly based on gender, the practical effect of the section in the cases of such marriages was to further prejudice women and benefit men disproportionally. The section therefore indirectly discriminates against spouses on the grounds of gender.

In determining whether such discrimination was nevertheless justifiable in terms of section 36 of the Constitution, the court noted that the primary argument for withholding the redistribution remedy to these spouses was because of the choice open to them to marry with the accrual system, a choice which spouses married out of community of property before the commencement of the Act did not have.  However, the court said, although this was a legitimate government purpose, it could not on its own render discrimination based on gender to be fair. Valuing spousal choices and allowing redistribution orders were not necessary mutually exclusive, and many countries had adopted laws which gave effect to both. Finally, South Africa’ s international law obligations militated against accepting as fair a form of discrimination which continued to mainly prejudice women. The discrimination therefore was unfair.

Therefore, having found section 7(3) infringed section 9(3) of the Constitution in that it indirectly unfairly discrimination on the basis of gender, the Constitutional Court confirmed the High Court declaration of constitutional invalidity. In its order, the court suspended its declaration for 24 months to enable Parliament to take steps to cure the constitutional defect.

The judgment raises crucial issues regarding matrimonial property regimes in South Africa, the role of choice in contractual relationships between individuals in intimate relations, and the effect that these issues have on gender. The South African Law Reform Commission has recently published its Discussion Paper on the Review of Aspects of Matrimonial Law, and the CGE intends commenting on the paper in light of this judgment.

Bradley Swanepoel is a Legal Research Specialist at the CGE

The Commission For Gender Equality is currently on an outreach and integrated 16- day campaign which will be on run until Friday at the Phokwane Local Municipality in the Northern Cape. The Campaign is supported by the Department of Social Development, SAPS, Thabang Community Development Centre and Department of Justice.

CGE’s Education Officer, Keneilwe Mokalane is educating the community on CGE’s services and the role it plays to fight Gender- Based Violence and Femicide.