Applicant and the 1st Respondent finalized their marriage under the Transkei Marriage Act 21 of 1978. Under Section 37(a) (civil marriage) and Section 37(b) (customary marriage), the husband is deemed the guardian of his wife during their marriage. Section 39(2) of the Act recognizes property as common only to the extent that the husband has declared the property as such prior to the solemnization of the marriage. The provision also excludes all “land held in individual tenure under quitrent conditions” from common property. The applicant applied to the High Court for a declaration that Sections 37 and 39(2) are unconstitutional.
The issue in this case is whether the provisions of the Act that exclude speciﬁc land from the spouses’ common property and give the husband guardianship over the wife unconstitutional.
The Court determined that although the Act’s provisions govern a purely private relationship, the Court is still obligated to scrutinize the constitutionality of the provisions. The Court ruled that granting guardianship to a husband over his wife violates Applicant’s constitutional rights to human dignity (Section 10); life (Section 11); freedom of trade, occupation, and profession (Section 22); and housing (Section 26). The Court therefore held that such guardianship was “outmoded and anachronistic.” Moreover, this marital power had been abolished under Section 11 of the Matrimonial Property Act 88 of 1984. According to Section 12, spouses enjoy equal power over their common property.
Therefore, the Court ruled that Sections 37(a) and 39(2) of the Transkei Marriage Act 21 of 1978 are contrary to the Constitution.