CONSTITUTIONAL COMMENTARY AND EVENTS

In a constitutional democracy, it is assumed spouses have equal bargaining power on negotiating which matrimonial property regime will govern their marriage. However, the lived reality is that women in South Africa’s historical patriarchal system did not necessarily have equal bargaining power and find themselves today vulnerable during divorce proceedings. To address this reality, the Divorce Act of 1979 (the Act) provided for judicial intervention in terms of section 7(3). Section 7(3) of the Act makes it possible for a spouse married out of community of property, to apply for a redistribution of assets in divorce proceedings. The Court must determine what would be just and equitable and this provision has been hailed as an important safeguard against the severe consequences of a complete separation of property. This legislative safeguard however was (despite good intentions) not available to many women until the recent Constitutional Court judgment of Holomisa v Holomisa and Another (the Holomisa matter).

The Centre for Constitutional Rights (CFCR) calls for the President to remove Minister Malusi Gigaba from his position as Minister of Home Affairs. His stay in the position has become untenable in light of many factors, including: an adverse High Court judgment making material findings about Minister Gigaba’s conduct; a report by the Public Protector agreeing with the judgment, with the added finding that Minister Gigaba violated the Constitution, the Executive Ethics Code, and the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members. To boot, the same report tasks the President with ensuring that appropriate disciplinary action is taken against Minister Gigaba. Most recently, the Constitutional Court refused the Minister leave to appeal the High Court decision, putting paid to any possibility of taking the Public Protector’s report on review before a court. In addition, Parliament’s Portfolio Committee on Home Affairs has asked the Minister to appear, once again, before the Committee to answer questions about his conduct in the Fireblade Aviation matter, from which the court challenge arose.

On 30 October 2018 the Constitutional Court handed down judgment in Rahube v Rahube – an application for the confirmation of an order of constitutional invalidity made by the High Court in Pretoria. The order was made in respect of section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 (ULTRA) and concerned the automatic conversion of land tenure rights into ownership rights, without due process and in a manner that was discriminatory, specifically to African women. The judgment is delivered at a time that South Africa grapples with the “land question” and arguably demonstrates that despite the property clause making provisions for access to land and tenure security, it is often the legislation – whether poorly implemented or drafted – which fails to deliver on the underlying constitutional premise.