In Khohliso Van der Westhuizen J, writing for this Court, remarked:
“It is rather odd that – 20 years into our constitutional democracy – we are left with a statute book cluttered by laws surviving from a bygone undemocratic era remembered for the oppression of people; the suppression of freedom; discrimination; division; attempts to break up our country; and military dictatorships.”
This case concerns the discriminatory oddity that women married out of community of property under the Transkei Marriage Act do not enjoy the protection, on divorce, of section 7(3) of the Divorce Act. Section 7(3), read with section 7(4) and 7(5), empowers a court granting a decree of divorce in respect of a marriage out of community of property to order a redistribution of assets where it considers it just and equitable to do so, taking into consideration the contribution, monetary and otherwise, of the parties to the marriage. Its effect was mainly to make transfers possible that favoured women married out of community of property.