Landmark cases: In South Africa, Agnes Sithole said NO! to the oppression of Black women elders … and won!

In South Africa, 72-year-old Agnes Sithole made history last month by insisting that [a] apartheid was really over and [b] as a Black woman elder, she has full and equal rights of every order: civil, legal, human and otherwise. In so doing, Agnes Sithole reminded everyone of the power of women’s insistence on their own dignity and the obligation of the State to recognize that dignity, formally and materially. Agnes Sithole’s individual story goes back almost 50 years, when she married Gideon Sithole. 

Almost 50 years ago, Agnes and Gideon Sithole entered into civil marriage. As two young Black South Africans, their marriage fell under the Black Administration Act of 1927, which specified that all Black marriages were considered out of community of property. That meant everything went exclusively to the man. Period. Gideon Sithole ran a business, which Agnes Sithole supported as a manager. She also has run her own successful clothing business. The money from Agnes Sithole’s business went to their four children’s education. The children are now adults, successful in their own rights, and “fiercely loving and protective of their mother”. She also raised four children and took care of … everything. She made the Sithole estate what it became. 

In 1984, the Matrimonial Property Act changed the marital property landscape for South Africans … except for Black South Africans, who were explicitly excluded from the new order. That meant that Agnes and Gideon remained under the rules of the 1927 Black Administration Act. In 1988, the government passed the Marriage and Matrimonial Property Amendment Act, which overturned conditions of the Black Administration Act for Black South Africans, but there was a catch. The State provided a two-year window in which change marital status from out of community property to community property. Gideon and Agnes Sithole had heard of earlier changes and assumed they were already in community property. They never filed for the change, and so Agnes Sithole remained under the jurisdiction of a 1927 law that specifically targeted Black South Africa women. About 400,000 Black South African women are in the same situation.

None of this mattered much, until, about two years ago, Gideon and Agnes Sithole’s marriage started falling apart. With the end in sight, Gideon Sithole threatened to sell their home and leave Agnes Sithole penniless. Much to Agnes Sithole’s surprise and dismay, according to the law, Gideon Sithole could actually do that, and she had no recourse. 

Agnes Sithole said NO! She said that apartheid was over, had to be over, and that she didn’t care what the State thought the law was, this was wrong, discriminatory, misogynist, racist, and evil. She decided that the specter that haunts South Africa cannot be apartheid, it must be the living mass of women, especially Black women, on the move, organizing, mobilizing, and setting things right. So, she sued.

On January 24, 2020, the Durban High Court agreed with Agnes Sithole, and her attorneys from the Legal Resources Centre, LRC, working with Geoff Budlender. Writing for the Court, KwaZulu Natal Deputy Judge President Isaac Madondo wrote, “The discrimination the impugned provisions perpetuate is so egregious that it should not be permitted to remain on our statute books by limiting the retrospective operation of the order or by suspending the order of invalidity to allow Parliament to rectify the error. The effect of the order is that all civil marriages are in community of property. The recognition of the equal worth and dignity of all black couples of a civil marriage is well overdue.” In response, LRC attorneys noted, “The default position for all other married couples in South Africa is in community of property – except for African couples married before 1988. The consequences of this discriminatory provision have remained to haunt older African women like Sithole.”

The consequences of this discriminatory provision haunt older African women, haunt Agnes Sithole, haunt South Africa … and beyond. The High Court decision must be approved by the Constitutional Court, and so, for now, Agnes Sithole “is relieved and overjoyed. She has celebrated with her children. She is now praying that the Constitutional Court application will go well” as do 400,000 African women elders in South Africa and their supporters. The struggle continues.

(Photo Credit: Legal Resources Centre)