Case  CCT 202/24
[2026] ZACC 02

Hearing Date:  25 February 2025

Judgement Date: 21 January 2026

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 21 January 2026, the Constitutional Court handed down judgment in an application for confirmation of an order of constitutional invalidity made by the High Court of South Africa, Gauteng Division, Pretoria. The High Court declared section 10(2) of the Recognition of Customary Marriages Act 120 of 1998 (the Recognition Act) unconstitutional.

The matter started in the High Court as an opposed divorce between the applicant, VVC, and the first respondent, JRM. The second and third respondents are the Ministers of Justice and Constitutional Development and of Home Affairs, respectively. The Pretoria Attorneys Association was admitted as amicus curiae (friend of the court) in the High Court, but has not been admitted before this Court. The application is unopposed. However, at the direction of the Chief Justice, the second and third respondents have filed written submissions and presented oral argument, arguing for a finding of constitutional validity.

The parties were married to each other in terms of customary law in August 2011. In 2019, they decided to conclude a civil marriage and signed an antenuptial contract (ANC) in terms of section 10(2) of the Recognition Act. That contract provided that the civil marriage would be out of community of property and subject to the accrual system. They concluded the civil marriage in 2021, without dividing the joint estate created by the customary marriage.

In 2022, the first respondent sought a decree of divorce and enforcement of the ANC against the applicant. In response, the latter pleaded that the ANC was invalid, or in the alternative, if the ANC was held to be valid, then section 10(2) of the Recognition Act (the impugned provision) was unconstitutional. The basis pleaded for the alleged unconstitutionality was that the impugned provision permitted spouses married under customary law to change their matrimonial property regime from in community of property to out of community of property by mere written agreement and without judicial oversight.

The parties agreed to place the matter before the High Court which held that the agreement signed by the parties after the customary marriage could not constitute a valid ANC, as it was concluded during the subsistence of an existing marriage and had the effect of changing the matrimonial property regime without compliance with section 21 of the Matrimonial Property Act 88 of 1984 (MPA).

The High Court proceeded to decide the constitutional challenge. It held that section 10(2) of the Recognition Act was unconstitutional because it allowed spouses in customary marriages to change their matrimonial property regime without judicial oversight, permitting arbitrary deprivation of property and unfair discrimination, particularly against women married under customary law. The declaration of invalidity was suspended for 12 months, and a reading-in was ordered in the event that Parliament failed to cure the defect.

The High Court’s order was then referred to the Constitutional Court for confirmation.

The central issues before the Court were:.

• (a) the validity of the ANC;
• (b) the interpretation of the impugned provision;
• (c) the constitutional validity of the impugned provision; and
• (d) remedy.

The applicant supported the High Court’s reasoning and order on the basis that the impugned provision is constitutionally invalid, insofar as it permits a change in the matrimonial regime without the intervention or oversight of a court, to the prejudice of the economically weaker spouse and the creditors of the communal estate. The applicant submitted that the section contemplated the change of a customary marriage to a civil and that the customary marriage ceases to exist upon conclusion of the subsequent civil marriage, since it is replaced by the latter.

The applicant further contended that the impugned provision allowed spouses in customary marriages to conclude contracts that change their matrimonial property regime without judicial oversight, thereby permitting arbitrary deprivation of property in violation of section 25(1) of the Constitution. According to the applicant, the section also breached the right to equality envisaged in section 9(1) and (3) of the Constitution by depriving spouses in customary marriages of proprietary rights and other rights of protection offered to spouses in civil marriages, and that the persons prejudiced by the absence of this protection are predominantly black women.

Before this Court, the Ministers of Justice and Constitutional Development and of Home Affairs contend that the Recognition Act places spouses on an equal footing in their customary marriage, and contend that the customary marriage ceases to exist as it is subsumed into the civil marriage. Since the ANC does not operate retrospectively, so contend the Ministers, the patrimonial benefits which accrued during their customary marriage, are shared equally upon dissolution because, in terms of section 6 of the MPA, a marriage is dissolved either through divorce or death.

According to the Ministers, the High Court departed from an incorrect premise that the ANC is a postnuptial contract which requires judicial oversight. They submit that the High Court did not give proper consideration to the scheme and purpose of the Recognition Act and considered the constitutionality of the impugned provision. Lastly, regarding remedy, in their written submissions the Ministers contended that the period of suspension should be altered from 12 months to 24 months.

The First Judgment

The majority, the first judgment, penned by Majiedt J, (with Dambuza AJ, Goosen AJ, Mhlantla J and Tshiqi J, and Theron J concurring), declined to confirm the High Court’s order of constitutional invalidity, for the reasons set out below.

The first judgment emphasised the transformative purpose of the Recognition Act, enacted to remedy the historical non-recognition and marginalisation of customary marriages and to place them on an equal footing with civil marriages. Central to this purpose is the protection of spouses, particularly black women, through the default application of community of property and through judicial supervision of any change to matrimonial property regimes.

On the regulation of marital property, the first judgment held that the present customary marriage falls within the purview of section 21 of the MPA, as section 7(5) of the Recognition Act provides that section 21 of the MPA applies to customary marriages concluded after its enactment, provided the husband does not have more than one spouse. That section contains comprehensive requirements and steps to change the matrimonial proprietary regime. Parties are thus afforded the option of utilising the procedure afforded by section 21 of the MPA, and are compelled to use this provision for any change to their marital property regime to be effectual.

On the question of what happens to the customary marriage when the parties subsequently enter into a civil marriage, the first judgment held that the customary marriage is not dissolved. The first judgment concluded that that the later civil marriage subsumes the customary marriage. The contrary interpretation would entrench the historical discriminatory position and would be in conflict with the constitutional recognition and status of customary law.

The first judgment stressed that where spouses wish to change their matrimonial property regime at any stage during their marriage, section 21 of the MPA provides a clear and constitutionally compliant mechanism for doing so, with appropriate safeguards for creditors and vulnerable spouses.

On the interpretation of the impugned provision, the first judgment explained that the ambiguity in section 10(2) arose from the use of the words “of their marriage” at the end of the subsection without explicit reference to the customary marriage. The first judgment concluded that the latter part, “of their marriage”, must mean the parties’ customary marriage, because it is only prior to the customary marriage that an ANC could be concluded. This flowed from the nomenclature itself but also from sections 86 and 87 of the Deeds Registries Act, which refer to an “ante” nuptial contract. The first judgment held that to interpret the phrase otherwise would result in an absurdity.

The first judgment explained that, if it is accepted that the marriage relationship does not terminate in the course of the section 10(2) change, then it must also be accepted that the couple only has one marriage which came into being when the couple concluded a customary marriage. Therefore, the words “their marriage” could only be in reference to the customary marriage. A contrary interpretation would enable the execution of a postnuptial contract without judicial supervision, which would lead to an unconstitutional state of affairs.

The first judgment emphasised that the impugned provision must be interpreted purposively, within the context of the Recognition Act as a whole and with regard section 7(5). To interpret it otherwise would undermine the purpose of section 7(5) and the principle of judicial oversight in marital property schemes, and as the first judgment’s interpretation favours constitutionality, should be preferred.

Properly interpreted, section 10(2) simply confirms that a civil marriage concluded after a customary marriage will be in community of property unless there already exists an ANC that validly regulates the matrimonial property system of the marriage. It does not create an alternative route for changing matrimonial property regimes outside of court supervision. The first judgment rejected the notion that section 10 contemplates the termination of the customary marriage and the creation of a new marriage relationship. Instead, the first judgment held that the section provides for a change in the legal system governing an existing marriage, not the termination of that marriage. The first judgment confirmed that a customary marriage, can be dissolved only by death or by a decree of divorce in terms of section 8 of the Recognition Act.

On this interpretation, the Court held that the marriage between the parties was a single, continuous marriage that began as a customary marriage and later became governed by civil law upon the conclusion of a civil marriage. The change was declaratory rather than constitutive. The ANC concluded between the parties was therefore invalid, due to of the parties’ failure to observe the provisions of section 21 of the MPA.

The first judgment held that section 10(2), properly interpreted, did not permit a change in matrimonial property regime without judicial oversight, and therefore the constitutional concerns identified by the High Court did not arise.

The Constitutional Court declined to confirm the High Court’s order, making no order as to costs. The question of reading-in or suspension therefore did not arise.

The Second Judgment

The second (dissenting) judgment, authored by Rogers J (with Madlanga DCJ and Opperman AJ concurring), took the view that, on a proper interpretation of section 10(2), the word “marriage” has the same meaning in the three places where it is used in that subsection, namely the civil marriage contracted between spouses between whom a customary marriage already subsists.

The first judgment’s interpretation renders section 10(2) redundant as it is section 7(2) that determines whether the subsequent civil marriage is in or out of community of property, so section 10(2) does no work. Apart from this, section 10(3) refers to a marriage that is in community of property “as contemplated in [subsection 10(2)]”, plainly conveying that it is by operation of section 10(2), not section 7(2), that the marriage is in community of property.

The second judgment disagreed with the significance accorded by the first judgment to the heading of section 10. Section 10’s heading shows that the lawmaker saw itself as enacting provisions with real consequences. The second judgment’s interpretation accords with the plain meaning of clause 10(2)(b) in the preceding Bill. Section 10(2) as enacted omitted the reference in clause 10(2)(b) to dissolution, but for the rest the substance of clause 10(2)(b) was retained.

The second judgment took the view that it would be inconsistent with the purposes of the Act to regard the customary marriage as dissolved by the civil marriage. Only in the case of irreconcilable incidents would it be necessary to determine which marital system takes precedence. The second judgment found the first judgment to be unclear as to the effect of the civil marriage on the customary marriage.

The second judgment disagreed with the first judgment’s emphasis on the prefix “ante” in the expression “antenuptial contract” and concluded that “ante” in the context of section 10(1) means before the civil marriage.

The second judgment explained as follows the fate of the joint estate when a customary marriage in community of property is followed by a civil marriage out of community of property. The spouses could, in their pre-civil marriage ANC, deal with the assets in the joint estate. If, on a proper interpretation of the ANC, it is silent on the fate of the joint estate, the joint estate would continue, but there would be separate estates in respect of future assets as from the date of the civil marriage.

As to the weaker bargaining position of women, the Act is not aimed at granting redress for this phenomenon. On the first judgment’s interpretation, the superior bargaining position of men would simply be exercised at a different time or in a different way: either by way of an ANC executed before the customary marriage or by way of pressure to join in bringing an application in terms of section 21(1) of the MPA.

Even if section 10(2) could reasonably be interpreted as set out in the first judgment, the second judgment better respects the spouses’ contractual autonomy. By contrast, the first judgment sets at nought the spouses’ wishes as expressed in the ANC executed after the customary marriage but before the civil marriage. On the first judgment’s interpretation, spouses will be put to the expense of bringing section 21(1) applications.

Finally, and in regard to the constitutionality of section 10(2), the second judgment concluded that it was not unconstitutional. Neither of the spouses would have been arbitrarily deprived of property, and creditors are safeguarded by the same rules that apply when a community estate is dissolved by divorce. Although the High Court attached significance to judicial oversight in terms of section 21 of the MPA, the purpose of that section is to safeguard creditors, not weaker spouses.

The reasoning in the second judgment leads to the conclusion that the High Court’s declaration of constitutional invalidity should not be confirmed. The second judgment’s reasoning would have also led to the conclusion that the ANC concluded between these particular spouses was valid. However, the High Court for separate reasons declared the ANC invalid and unenforceable. Since there has been no appeal against that declaration, it must stand, and the divorce action must proceed on the basis that the ANC is invalid. The second judgment considered that the appropriate costs order is for the parties to bear their own costs in the High Court and in this Court.

The Full judgment  here