A KwaZulu-Natal woman had Constitutional Court judges grappling with how to protect customary law and at the same time make sure African women married before 2000 do not find themselves on the streets when they divorce.

A KwaZulu-Natal woman had Constitutional Court judges grappling with how to protect customary law and at the same time make sure African women married before 2000 do not find themselves on the streets when they divorce.

Pensioner Elizabeth Gumede, who was married under customary law in 1968, is in the process of divorcing her husband, but will have nowhere to live because in those days the family head, seen as the man, was considered the owner and controller of the property.

He has offered her half the value of one of his homes.

The Recognition of Customary Marriages Act, which commenced on November 15 2000, recognises that this is discriminatory, and makes the default position community of property - which is joint ownership and responsibility - but makes no provision for marriages conducted before that date.

Gumede's lawyer, Geoff Budlender, argued that in terms of the Constitution she was being discriminated against because she was a woman, and because she was African.

Parliament has already decided that women should be protected in this way but the question is from what date women should be protected and whether there was justification for excluding women such as Gumede.

Deputy Chief Justice Dikgang Moseneke asked: "Can customary law rather be changed to be in line with our Constitution, rather than jettisoning it?"

Budlender said he was only challenging the property aspect of the Customary Law of Marriage.

In different times, Mrs Gumede would have had a home provided by the family, but her parents were dead and they had lived on a farm not owned by them.

Gumede's sisters are domestic workers and cannot help her and she survives on a pension and remittances from their five children.

In terms of customary law her husband owns the house she lives in in Umlazi, south of Durban in Adams Mission.

He owns the furniture and appliances in the house and the pension he receives after he retired as a foreman at Rennies Cargo.

He never allowed her to work, so she did not contribute financially but ran the home and raised their children.

"The premise of a male trustee for the whole community doesn't always apply anymore," said Budlender.

"Where does Mrs Gumede go on termination of her marriage? Who is it that has a duty to provide support for her?" he asked.

Budlender said that even if Gumede had bought the house, in terms of customary law her husband would have control over it.

"She has to care for herself while social structures have changed, but the law does not provide for that."

The court heard that the challenge was to make sure that what was good about customary law retained.

"It doesn't have to obliterate customary law, because there is a large number of people who live their lives based on customary law," Justice Sandile Ngcobo said.

The justices spoke about "communitarian" notions of ownership, where land did not belong to one person, and how colonialism and economic developments had changed the notion of ownership and made it market related.

Moseneke said: "Colonial codes spoke about the notion of ownership because that is all they understood."

The Pietermaritzburg high court ruled that the Recognition of Customary Marriages Act was inconsistent with the Constitution because it made customary law govern the property consequences of a marriage before 2000.

Budlender said it would be fair for Mrs Gumede to get half of the couple's property. - Sapa