milestone judgment for women in customary marriages
21 November 2007

The Supreme Court of Appeal ruled that the Road Accident Fund treat women in customary marriages claiming support the same as those married under the Marriage Act. The Court ordered the State to review the provisions still existing in South African law that precluded such claims within a period of 18 months.

Seven years ago, Mrs. Gasa, on losing her husband in a road accident, lodged a claim for loss of support with the Road Accident Fund. In the new dispensation which recognizes customary marriages and constitutionally protects customary law, her case should have been simply resolved.

However, her claim was refused by the fund on the basis that her husband had previously married another woman in terms of the Marriage Act, thereby nullifying her own marriage. She challenged this decision in the Cape High Court and lost on the basis of remnants of apartheid legislation still on the statute books.

This week, the Supreme Court, by agreement between the parties, overturned the High Court judgment and awarded Mrs. Gasa her damages claim.

The Women’s Legal Centre, a friend of the court in the proceedings, had questioned the constitutionality of the fund’s refusal to honour her claim, and challenged the validity of the statutes relied on by the High Court to uphold this refusal.

The Women’s Legal Centre requested the court to consider the negative impact that the Black Laws Amendment Act (which refers to the now repealed Black Administration Act) has on women married in terms of customary law that do not fall under the Recognition of Customary Marriages Act. The Recognition of Customary Marriages Act came in effect in 2000, only months after Mr Gasa’s death.

Jennifer Williams, the Director of the Women’s Legal Centre said. “Today is a victory for women married in terms of customary law. This order extends the claim for loss of support against the fund to a class of women overlooked by the reforms in our law after the Constitution. The matter also throws into sharp relief the moral reasoning behind the tendency to give “civil” marriages primacy over customary marriages. This approach impacts negatively on women married under customary law as they are deprived of the rights that spouses married under “civil law” have.”

“While the Recognition of Customary Marriages Act goes some way to remedy this situation, we believe that it does not go far enough. The Centre intends to build on this victory to bring problematic provisions in the current legal system to the forefront, so that women married under customary law have equal protection and access to justice.”

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