Are Customary Marriages in South Africa In or Out of Community of Property?

 Written by Roy Bregman, an admitted attorney with over 51 years' experience in South African matrimonial and customary law.

Key takeaways

·        Customary marriages before 15 November 2000 are generally governed by the older customary-law property system, subject to later constitutional and court developments.

·        Customary marriages entered into on or after 15 November 2000 are in community of property, unless the parties validly concluded an antenuptial contract before the marriage.

·        Courts have increasingly protected spouses, especially women, by recognising equality and proprietary rights in customary marriages.

·        Spouses in unregistered customary marriages should register the marriage as soon as possible, and in any event before 31 August 2026, to reduce legal uncertainty and protect both spouses' rights. Failure to comply with legal requirements, including registration, can create serious evidential, administrative and financial risks.

Introduction

Customary marriages in South Africa are regulated by the Recognition of Customary Marriages Act 120 of 1998 (RCMA), which came into operation on 15 November 2000. The Act gave full legal recognition to customary marriages and aligned this area of law with constitutional values such as equality and dignity.

A key aspect of the RCMA is the matrimonial property regime applicable to customary marriages:

·        Section 7(1) preserves the proprietary consequences of marriages concluded before the Act.

·        Section 7(2) provides that marriages concluded after the Act are automatically in community of property, unless the parties agreed otherwise through an antenuptial contract before marriage.

·        Section 7(6) regulates further marriages in polygynous unions and requires court approval of a written contract dealing with the matrimonial property system.

Registration deadline

Parties should also be aware of the current registration drive for unregistered customary marriages. A Government Gazette notice extended the period for registration and set 31 August 2026 as the deadline for registration of unregistered customary marriages.

Although failure to register does not necessarily make an otherwise valid customary marriage void, non-registration can cause major practical problems. In practice, an unregistered marriage may be difficult to prove and may create disputes or delays relating to inheritance, pension benefits, property rights, divorce proceedings, maintenance claims, and dealings with the Department of Home Affairs.

For that reason, spouses in unregistered customary marriages should register the marriage as soon as possible, and in any event before 31 August 2026, to reduce legal uncertainty and protect both spouses' rights.

Case law developments

Gumede v President of the Republic of South Africa (2009)

Facts: The applicant was married under customary law before 2000. Under the traditional system, her husband controlled the family property, and she had no ownership rights.

Decision: The Constitutional Court held that the provision was unconstitutional and that monogamous customary marriages entered into before 2000 must be treated in a way that protects equality and proprietary rights.

Ramuhovhi v President of the Republic of South Africa (2017)

Facts: The case involved a polygynous customary marriage entered into before 2000.

Decision: The Court confirmed that women in such marriages must enjoy equal proprietary protection.

Mayelane v Ngwenyama (2012)

Facts: A husband entered into a second customary marriage without informing the first wife.

Decision: The Court held that the consent of the first wife is required in the applicable customary-law context.

MM v MN (2013)

Facts: The husband entered into a further marriage without proper court approval of a matrimonial property contract.

Decision: The Court held that the situation created serious property uncertainty, underscoring the importance of compliance with statutory requirements.

Conclusion

The legal position has developed significantly. Post-2000 customary marriages are in community of property by default unless excluded by antenuptial contract, while pre-2000 marriages require a more careful analysis in light of customary law and constitutional case law.

Registration is also now especially important. Even where a marriage may still be legally valid without registration, failure to register before 31 August 2026 may create serious proof and enforcement difficulties in practice.

Frequently asked questions

Are all customary marriages now in community of property?

No. It depends mainly on when the marriage was concluded and whether any valid antenuptial arrangement applies.

Can spouses change their matrimonial property system?

Yes. In appropriate cases, this can be done with court approval.

What happens if a husband takes another wife without court approval?

The further marriage may create validity and property consequences, especially in relation to the matrimonial property system and the rights of existing spouses.

What happens if a customary marriage is not registered by 31 August 2026?

The marriage may still be capable of legal recognition if it was otherwise valid, but the parties may face serious difficulty proving it and enforcing rights arising from it. This can affect estates, property transfers, pensions, maintenance, and divorce proceedings.

Constructive Dismissal and Internal Procedures in South African Labour Law – Lessons from Maleka and Sally

Employees and employers alike often wrestle with the question of when a resignation becomes a “constructive dismissal” under South African labour law. This article answers four key questions: What is constructive dismissal under South African law? Must employees exhaust internal procedures before claiming constructive dismissal? What did the Constitutional Court decide in Maleka v Boyce? and how did the Labour Court apply these principles in Sally v CPES? By unpacking these recent decisions, the article explains the legal test for constructive dismissal, why the courts insist on using internal remedies, and what practical lessons both workers and businesses should draw from these cases.

Written by Roy Bregman, an admitted attorney with over 51 years’ experience in labour and employment law.

 

Key Takeaways

 

• Constructive dismissal claims will fail where employees resign without first using reasonable internal remedies such as grievance procedures or CCMA processes, unless those remedies would clearly be futile.
• The Labour Court and Constitutional Court both stress that the threshold for “intolerable” working conditions under section 186(1)(e) of the LRA is high and assessed objectively, not based on an employee’s perception.
• Recent cases involving Maleka and Sally underscore that changes to reporting lines or disagreements about accommodation, without more, seldom justify immediate resignation.
• Employers should maintain clear internal procedures and employees should exhaust them before resigning, to avoid costly and unsuccessful litigation.

Understanding Constructive Dismissal and Internal Remedies

What is constructive dismissal under South African Law?

Under section 186(1)(e) of the Labour Relations Act (LRA), a constructive dismissal occurs where an employee resigns because the employer has made continued employment intolerable. The focus is not on whether the employee was unhappy, but whether a reasonable person in the same circumstances would have found the situation so unbearable that resignation was the only option.

Courts have consistently emphasised that this test is objective and the threshold for intolerability is high. Mere unhappiness, perceived loss of status, or conflict with management will not be enough; the employee must show that the employer’s conduct was so severe that no reasonable employee could be expected to stay.

Must employees exhaust internal procedures before claiming constructive dismissal?”

The duty to use internal procedures

A further key principle is that constructive dismissal should be a remedy of last resort. Where reasonable internal procedures exist – such as a grievance process, unfair labour practice proceedings at the CCMA, or other dispute mechanisms – employees are generally required to use them before resigning.

Both the Labour Court and higher courts have indicated that, save in cases where internal remedies would be objectively futile, an employee who resigns prematurely and bypasses available procedures will struggle to prove constructive dismissal. This approach protects both the employer’s right to address issues internally and the broader statutory scheme that favours problem‑solving over litigation.

Against this backdrop, two recent cases – one from the Constitutional Court and one from the Labour Court – reinforce the importance of exhausting internal avenues before walking away.

The Maleka Case: Reporting-Line Changes and Anticipated Intolerability

What did the Constitutional Court decide in Maleka v Boyce?

Facts of the case

In Reynolds Maleka v Timothy Boyce N.O and Others (CCT 175/23) ZACC 4, Mr Maleka had been employed since 2014 as IT Director by Tyco, and was placed at ADT, Tyco’s South African subsidiary. He served on ADT’s executive committee, reporting internationally to Tyco’s global head of IT and locally to ADT’s managing director.

In late 2016, ahead of a planned acquisition of ADT by Fidelity Security Group, ADT announced the appointment of a new financial director, Mr Quinn, who would oversee the IT portfolio. Once the acquisition was completed, this would mean that Maleka would report to Quinn, someone on his own level. Maleka saw this as a demotion which threatened his authority and status and immediately expressed his opposition. He was told the decision was final.

Shortly after the Competition Commission approved the acquisition, Maleka had a brief follow‑up meeting with the managing director, who reiterated that the reporting line decision would stand. The next day, Maleka resigned and later referred a dispute to the CCMA, alleging that he had been constructively dismissed.

Decisions in the CCMA, Labour Court and Labour Appeal Court

The CCMA Commissioner rejected Maleka’s constructive dismissal claim. The Commissioner found that the change in reporting line did not affect his title, salary, responsibilities or his seat on the executive committee and was a reasonable operational response to the pending sale. Crucially, Maleka had not used ADT’s grievance procedure before resigning.

The Labour Court, applying the test of correctness to the Commissioner’s ruling, agreed. It held that without a compelling reason to bypass the grievance process, his failure to use it was fatal to the constructive dismissal claim. The Court further held that the reporting‑line change, in the absence of any change to salary or title, did not render his employment objectively intolerable; his resignation was impulsive and not a last resort.

On appeal, the Labour Appeal Court (LAC) similarly held that Maleka’s resignation was premature. The LAC noted that he could have:

• used ADT’s internal grievance procedure, and/or
• referred unfair labour practice or unfair discrimination disputes to the CCMA before resigning.

His failure to pursue these options meant that intolerability had not yet materialised; it was at most anticipated. The LAC therefore dismissed his appeal.

Constitutional Court majority: high threshold and need to explore remedies

The Constitutional Court’s majority judgment, penned by Seegobin AJ, confirmed these principles. Drawing on established authority, the Court reiterated that constructive dismissal requires proof that the employer made continued employment objectively intolerable and that the threshold for intolerability is high.

The majority held that Maleka’s dissatisfaction stemmed from the change in reporting line, not from any existing state of intolerability. His fears about future marginalisation amounted to anticipated intolerability, which is not sufficient under section 186(1)(e). The Court also stressed that an employee in his position should first explore reasonable alternative remedies before resigning. Because Maleka had not done so and could not show that internal or external remedies would have been futile, his application had no prospects of success and was dismissed.

A strong dissent would have found constructive dismissal on the particular facts, emphasising dignity and the historical context of racial inequality in corporate South Africa. However, for current purposes, the binding majority confirms a strict, remedy‑focused approach.

The Sally Case: Religious Accommodation and the Labour Court’s Approach

How did the Labour Court apply these principles in Sally v CPES?”

Facts and claim

In Sally v CPES (Pty) Ltd t/a Vivo SA (JS419/22) ZALCJHB, Mr Mohamed Sally, a practising Muslim, was employed as a spare parts manager from 7 March 2022. On 10 March, he requested religious accommodation to attend Friday prayers, including the option of unpaid leave. Before CPES could meaningfully respond or implement any solution, Sally resigned the very next day, alleging that his resignation amounted to an automatically unfair constructive dismissal based on religious discrimination.

Labour Court’s decision

The Labour Court dismissed the claim and again underlined the importance of using internal procedures and allowing the employer an opportunity to respond. The Court noted that Sally:

• had not given CPES reasonable time to consider and implement his proposed unpaid‑leave solution; and
• had not exhausted available internal remedies before resigning.

The Court cautioned that constructive dismissal should not be found where an employee fails to use reasonably available internal processes to address their grievance, unless using those processes would objectively be futile. On these facts, CPES had barely been given 24 hours to respond. The situation had not yet become objectively intolerable; instead, resignation was premature.

Conclusion: Practical Lessons for Employers and Employees

The Maleka and Sally decisions deliver a consistent message: constructive dismissal is an exceptional remedy, not a shortcut when employment relationships strain. Employees must:

• distinguish between genuine intolerability and anticipated or perceived harm.
• use internal grievance procedures and statutory remedies where reasonably available; and
• treat resignation as a last resort, only after attempts to resolve the situation have failed or would clearly be futile.

For employers, the cases highlight the value of clear internal policies, accessible grievance mechanisms, and prompt, good‑faith engagement with employees’ concerns – especially around restructurings, reporting‑line changes and religious accommodation.

FAQ

Q1: When will a South African court find that an employee was constructively dismissed?

A: Only when the employer has made continued employment objectively intolerable, and resignation was a last resort after reasonable alternatives, including internal procedures, have been tried or shown to be futile.

Q2: Do I have to use my employer’s grievance procedure before resigning?

A: In almost all cases, yes. Failing to use an available grievance process or CCMA remedies will usually be fatal to a constructive dismissal claim, unless using them would clearly be pointless.

Q3: Is a change in reporting line automatically a demotion or constructive dismissal?

A: No. Courts look at the full picture, including title, pay, responsibilities and context. A change in reporting line alone, without more, rarely makes employment intolerable.

Q4: Can refusal or delay in granting religious accommodation amount to constructive dismissal?

A: Not automatically. The employer must be given a reasonable opportunity to consider the request and explore solutions; immediate resignation without engaging internal processes will usually defeat a claim.

If you are facing changes at work, considering resignation, or dealing with an employee who alleges constructive dismissal, it is crucial to get tailored legal advice before taking the next step. Contact Bregman Moodley Attorneys for practical, strategic guidance on South African labour law, internal procedures and constructive dismissal risks.

 

Failure to Register an Antenuptial Contract: Can One Spouse Force a Change to the Matrimonial Property Regime?

South African law on correcting an unintended matrimonial property regime, section 21 MPA applications, spouse consent, and negligence claims against attorneys. 

Written by Roy Bregman, an admitted attorney with over 51 years' experience in South African family and matrimonial property law.

A client asked: “Can a court correct a matrimonial property regime where both spouses intended to conclude an antenuptial contract, but it was not executed or registered due to attorney negligence—and can one spouse be compelled to participate in such a correction?”

Can You Force Your Spouse to Change Your Matrimonial Property Regime After Attorney Negligence?

Key Takeaways

• South African law allows spouses to correct an unintended matrimonial property regime caused by attorney or notarial negligence, but only with a joint High Court application and no prejudice to creditors.​
• Section 21(1) of the Matrimonial Property Act 88 of 1984 is the primary mechanism to change the matrimonial property system after marriage, and it expressly requires both spouses’ consent.​
• If one spouse refuses to cooperate (for example, because they benefit from being married in community of property), the court will not impose a new regime unilaterally.​
• The aggrieved spouse’s realistic remedy is usually a professional negligence claim against the attorney or notary whose failure caused the wrong matrimonial regime.​

South African Legal Framework on Matrimonial Property Systems

Legal principles: correcting an unintended matrimonial property system

Default regimes and antenuptial contracts

South African law starts from the principle that, absent a valid ANC executed and registered before marriage, spouses are married in community of property by default. Where the parties in fact intended to marry out of community (with or without accrual), but attorney or notarial negligence prevented a valid ANC from coming into effect, the law provides two broad routes to seek correction.​

First, if an ANC was validly executed before the marriage but not registered timeously due to error or oversight, the High Court can authorise condonation of late registration under the Deeds Registries Act, with retrospective effect, provided creditors are notified and not prejudiced. Second, if no valid ANC exists and the parties wish to change the system after marriage, section 21(1) of the Matrimonial Property Act 88 of 1984 permits a joint application to change the matrimonial property regime, again subject to sound reasons and protection of creditors.​

Section 21(1) Matrimonial Property Act: Postnuptial change

Statutory framework: section 21 of the Matrimonial Property Act

Section 21(1) of the Matrimonial Property Act is the central statutory authority for postnuptial changes to the matrimonial property regime. It allows a husband and wife, after their marriage, to jointly apply to the High Court for leave to change their matrimonial property system, provided there are sound reasons, proper notice to creditors, and no prejudice to creditors or third parties.​

Courts have repeatedly used section 21 to give effect to the spouses’ true intention where the wrong regime resulted from mistake or professional negligence. However, the wording “husband and wife may jointly apply” is crucial: the statute provides no basis for a unilateral application by only one spouse to change the regime against the will of the other.​

Case Law on Correcting Unintended Matrimonial Property Regimes

Case law: intention, negligence and postnuptial correction

Applications based on mistake and negligence

Several reported decisions illustrate how the courts have approached these applications. In cases such as Ex parte Oosthuizen, Ex parte Spinazze and Another and Ex parte Burger, the courts granted leave to change the matrimonial property regime where the parties intended to marry out of community but failed to execute or register the ANC correctly. The courts emphasised two key elements: the genuine common intention of both spouses, and the absence of prejudice to creditors.​

Rectification where an ANC exists

Rectification is also available where an ANC exists but does not reflect the spouses’ true intention because of a common mistake. In PV v EV (SCA), the court confirmed that an antenuptial contract, as a written agreement, can be rectified where the written terms do not reflect the parties’ actual agreement, provided sufficient evidence of the common intention is placed before the court. Rectification, however, presupposes a valid ANC; where there is none, spouses must use section 21.​

Must Both Spouses Consent to the Change?

The joint-application requirement: can one spouse be compelled?

Why the court requires a joint application

The decisive issue in the client’s question is whether a husband can compel his wife to join a court application to change the regime where she now benefits from the existing system. Both the condonation route (late registration of a validly executed ANC) and a section 21(1) application are premised on a joint approach by both spouses and on the proposed regime reflecting their shared intentions.​

Because section 21(1) expressly requires that “a husband and wife may jointly apply”, the courts have consistently treated the change of matrimonial regime as a consensual adjustment of the patrimonial consequences of marriage. If the wife refuses to cooperate because she prefers the more favourable consequences of being married in community of property, the husband cannot force her to support the application, and the court will not impose a new regime unilaterally.​

Practical consequences and the husband’s remedy

What if one spouse refuses?

Where one spouse refuses to participate, the marriage remains governed by the existing matrimonial property regime, usually in community of property if no valid ANC was executed and registered. The husband’s frustration with this outcome does not create a power to override his wife’s autonomy or to compel her participation in a joint application.​

Attorney or Notary Negligence: The Claim for Damages

In practice, the aggrieved spouse’s realistic remedy lies in a professional negligence claim against the attorney or notary whose failure to execute or register the ANC properly caused the loss. South African courts have recognised such claims, for example in Van Heerden Brummer Inc v Bath (SCA), where an attorney was sued because an invalid ANC left the client worse off on divorce; the measure of damages is typically the financial difference between the intended regime and the regime that actually applies.​

Conclusion

South African law recognises that attorney or notarial negligence can result in spouses being married under a matrimonial property regime they never intended, and it provides mechanisms to correct this by way of court-approved, postnuptial changes. However, those mechanisms are inherently consensual: both late registration of an ANC and a section 21(1) application to change the matrimonial property system require a joint application by both spouses, and the courts will not impose a new regime against the will of one spouse.​

If a wife is content to remain married in community of property because it benefits her, the husband cannot compel her to support a High Court application to alter the regime, even if the original intention was to marry out of community under an ANC. His primary remedy is instead to explore a professional negligence claim against the practitioner whose failure deprived him of the intended matrimonial protection.​

 

FAQ section

Q1: We intended to marry out of community, but no ANC was signed or registered. Are we married in community of property?
Yes. If no valid ANC was executed and registered before the marriage, the default position in South African law is a marriage in community of property.​

Q2: Can I bring a section 21 application without my spouse’s consent?
No. Section 21(1) of the Matrimonial Property Act requires a joint application by both spouses; the court will not grant relief on a unilateral application.​

Q3: What if my spouse refuses because they benefit from the current regime?
If your spouse refuses to join the application, the existing matrimonial property regime remains in place, even if it was not your original intention.​

Q4: Is there any remedy if the problem was caused by attorney negligence?
Yes. You may have a professional negligence claim against the attorney or notary whose failure to execute or register the ANC caused you financial loss.​

If you and your spouse are married under a regime you never intended because of attorney or notarial negligence, or if your spouse is refusing to cooperate in correcting the position, you should obtain detailed, personalised advice before taking any step. Contact Bregman Moodley Attorneys today to discuss your matrimonial property position, assess potential remedies against negligent practitioners, and explore the best strategy to protect your assets and family.​

Can Your Complex Force You to Use Facial Recognition?

 

Many South Africans are being told they must use facial recognition just to enter their own complexes. But under POPIA, your face and ID are not “just another” data point – they are highly protected information, and estates cannot simply force you into biometrics without a lawful basis and a real choice.

A client recently asked:

“My complex now uses facial recognition at the gate. They want my ID and face on a third‑party system. I’ve said I don’t consent and asked for another way to access my home, but they’re ignoring me. Can they really force me under POPIA?”

Under POPIA, facial recognition is biometric data – special personal information that can only be used on strict legal grounds, with proper safeguards. Consent must be voluntary, informed and specific. It’s hard to call it “voluntary” if the message is effectively: no biometrics, no access to your own home.

Bodies corporate and HOAs must also consider less intrusive options (cards, remotes, PINs) and give clear information about what they collect, where it’s stored, who sees it and for how long.

In practice, we:

• Review the estate’s rules and POPIA documents
• Send a formal objection and demand a reasonable, non‑biometric access method
• If needed, help lodge a complaint with the Information Regulator or approach court

Thinking of scrapping your 13th cheque? A recent Labour Court case is a cautionary tale for employers.

 

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Can employers scrap a 13th cheque? A recent Labour Court ruling warns against unilateral changes to contractual bonuses in South Africa.​

#LabourLawZA #EmploymentContracts #HRCompliance

In Chemical Energy, Paper, Printing, Wood and Allied Workers Union obo Members v Avacare Health Group (Pty) Ltd and Another (C438/2024), the Labour Court found that an employer’s unilateral decision to stop paying a contractual 13th cheque and replace it with a performance‑based bonus amounted to a breach of contract.​

The employer:

• Abolished the 13th cheque and introduced a performance‑linked bonus.
• Offered salary increases to employees who accepted the change and did not challenge it.
• Indicated that strike action against the change would be “ineffective and futile”.​

Employees argued that the 13th cheque was a contractual benefit. The employer maintained it was merely a workplace practice. During the dispute process, the employer eventually conceded that the 13th cheque was in fact a contractual right, and the court ordered payment of the unpaid 13th cheques.​

The court criticised:

• The attempt to mischaracterise a contractual benefit as a mere practice.
• The “stick and carrot” approach of trading salary increases for relinquishing contractual rights, while discouraging collective action.​

Key lessons for employers:

• A 13th cheque is not a statutory requirement in South Africa – but once you include it in an employment contract, it becomes a binding contractual obligation.​
• You cannot unilaterally withdraw or change contractual benefits, even in the name of “modernising” remuneration structures.
• Distinguish carefully between:
• Contractual benefits (e.g. guaranteed bonuses, 13th cheques in the contract), and
• Workplace practices (customs or discretionary benefits not written into the contract).​
• If you need to change contractual benefits:
• Conduct a proper legal and HR review.
• Consult meaningfully with affected employees or unions.
• Obtain agreement to any variation.
• Avoid coercive incentives or threats that may later be viewed as undermining collective bargaining.​

Handled incorrectly, a well‑intentioned incentive scheme can result in findings of breach of contract, reputational damage, and unnecessary litigation.