Smith, Bradley S.Ncityana, Sinalo2024-07-192024-07-192023http://hdl.handle.net/11660/12673Dissertation (LL.M.(Private Law))--University of the Free State, 2023This study concerns the consequences arising from the default matrimonial property regime that applies to “Black persons” who entered into a civil marriage in South Africa before the 2ⁿᵈ of December 1988, and recent radical changes in this regard as brought about by the Constitutional Court’s judgment in 𝘚𝘪𝘵𝘩𝘰𝘭𝘦 𝘢𝘯𝘥 𝘈𝘯𝘰𝘵𝘩𝘦𝘳 𝘷 𝘚𝘪𝘵𝘩𝘰𝘭𝘦 𝘢𝘯𝘥 𝘈𝘯𝘰𝘵𝘩𝘦𝘳¹ (𝘩𝘦𝘳𝘦𝘢𝘧𝘵𝘦𝘳 “𝘚𝘪𝘵𝘩𝘰𝘭𝘦”), that involved confirmation proceedings² in respect of the judgment of the court a quo (reported as AS v GS).³ As a point of departure, it is trite that the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘙𝘦𝘱𝘶𝘣𝘭𝘪𝘤 𝘰𝘧 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢, 1996 (𝘩𝘦𝘳𝘦𝘢𝘧𝘵𝘦𝘳 “𝘵𝘩𝘦 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯”) provides that everyone is equal before the law and has the right to equal treatment and protection of the law, and not to be unfairly discriminated against.⁴ In relation to the impact of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 on private law, Nkosi quotes Professor Visser’s opinion – expressed as far back as in 1995 – as follows: “Private law should brace itself for a type of ‘total onslaught’ on many of its rules and principles. This invasion will mainly be undertaken by judges who are well armed with (a) a vague constitution and (b) endless methods of interpreting it in order to achieve the desired results”.⁵ However, despite the advent of our constitutional democracy almost 30 years ago, Black persons in (civil) marriages at times still suffer from the racial classifications perpetuated by means of pre-democracy legislation. This study will take a closer look at the 𝘚𝘪𝘵𝘩𝘰𝘭𝘦 judgment, as well as its forerunner in the court a 𝘲𝘶𝘰, and the (unintended) consequences of the Constitutional Court’s judgment (in particular) to the extent that it altered this state of affairs. As such, the main research question is to assess the impact of this case regarding the fundamental change that it brought about to the default matrimonial property regime that governs civil marriages entered into between Black persons before 2ⁿᵈ of December 1988, and to determine whether its overall outcome is constitutionally sound. The study also aims to identify certain valuable lessons that can be learned from the 𝘚𝘪𝘵𝘩𝘰𝘭𝘦 judgment because of its far-reaching nature.enDissertationUniversity of the Free State