In the Edelstein judgment, which was handed down in 1952, the Appellate Division (as it then was) held that there is a rebuttable presumption that all civil marriages are deemed to be in community of property by default. In other words, should a couple not conclude an antenuptial contract before they get married, their marriage will automatically be in community of property.

However, the Appellate Division went on to hold that civil marriages in terms of the Black Administration Act 38 of 1927 (an Act that is no longer in force in our law) were an exception to this rule, as marriages in terms of the Black Administration Act were out of community of property by default.

On 2 December 1988, the Marriage and Matrimonial Property Amendment Act 3 of 1988 repealed section 22(6) of the Black Administration Act, and section 21 was inserted into the Matrimonial Property Act 88 of 1984.

Section 21(2)(a) of the Matrimonial Property Act held that spouses who entered into an out of community of property marriage before 2 December 1988, in terms of section 22(6) of the Black Administration Act, may cause the Matrimonial Property Act to apply to their marriage by the execution and registration in a registry within two years after the commencement of a notarial contract to that effect.

In other words, section 21(2)(a) gave persons married in terms of the Black Administration Act prior to 2 December 1988, a two-year grace period to make the Matrimonial Property Act applicable to their marriage. If the Matrimonial Property Act was not made applicable to their marriage within the two-year grace period, their marriage remained out of community of property.

In essence, the effect of section 21(2)(a) of the Matrimonial Property Act was that if persons were married in terms of the Black Administration Act before 2 December 1988 and did not change their marital regime to be one of in community of property, their marriage would remain out of community of property.

In a nutshell, after 2 December 1988, any civil marriage entered into without the signing of an antenuptial contract before the marriage, would automatically be in community of property.

On 24 January 2020, the KwaZulu-Natal High Court held that section 21(2)(a) of the Matrimonial Property Act does not pass constitutional muster, in that it discriminates unfairly on the grounds of gender and race.

On 14 April 2021, the Constitutional Court confirmed the High Court’s order and held that section 21(2)(a) of the Matrimonial Property Act is unconstitutional and invalid for perpetuating the discrimination created by section 22(6).

The Constitutional Court ordered that all civil marriages prior to 2 December 1988 are henceforth declared to be in community of property. The Constitutional Court went on to hold that a couple married in terms of the Black Administration Act who does not wish to be married in community of property and wishes for their marriage to remain out of community of property, essentially “opting out” of this order, is required to notify the Director-General of the Department of Home Affairs in writing accordingly.

The Constitutional Court further provided that in the event of a disagreement between spouses in a marriage that becomes a marriage in community of property in terms of the order, either spouse may apply to the High Court for an order that the marriage shall not be in community of property.

The evidence adduced in the Constitutional Court was that there could be more than 400 000 marriages that are affected by the order. The effects of this order are therefore far-reaching.

Reference List:

  • Edelstein v Edelstein NO and Others 1952 (3) SA 1 (A)
  • Black Administration Act 38 of 1927
  • Matrimonial Property Act 88 of 1984
  • Marriage and Matrimonial Property Amendment Act 3 of 1988
  • Sithole and Another v Sithole and Another 2020 ZAKZDHC 1
  • Sithole v Sithole and Another 2021 ZACC 7


The Domestic Violence Amendment Bill (the Bill) was introduced in the National Assembly in September 2020 but has yet to be signed into law by the President. There are various positive and helpful amendments presented in the bill. The Bill will come into operation on a date fixed by the President through the proclamation in the Gazette.

The concept and definition of domestic violence has been broadened extensively in the Bill. It now includes spiritual abuse, elder abuse, coercive behaviours, controlling behaviour, and exposing or subjecting children to behaviour listed in the domestic violence definitions clause. It also makes provision for conduct that harms, or inspires the reasonable belief that harm may be caused to the Complainant or a related person.

Some of the amendments in the Bill are summarised below:

Elder abuse, sexual harassment, and spiritual abuse has now been defined

Elder abuse refers to abusive behaviour in a relationship with an older person and can include financial abuse, physical abuse, emotional abuse, as well as controlling behaviours like social isolation or intentional and unintentional neglect.

It unfortunately happens frequently that parents invite their children to live with them and after a short while elder abuse commences. The Bill aims to provide the necessary protection to the elderly.

‘Sexual harassment’ is a separate section under ‘Sexual abuse’ and inter alia means:

  1. Unwelcome sexual attention from a person who knows or ought to reasonably know that such attention is unwelcome;
  2. Unwelcome suggestions, gestures messages and remarks;
  3. Implied and expressed promises or reward for complying with a sexually oriented request.

There have also been various court cases recently where pastors, priests, and other religious leaders have been charged with inter alia, rape and or sexual assault and invariably it happens that over a period of time there has been the use of spiritual or beliefs and practices to control and dominate a person. An interdict can now be obtained as soon as there has been spiritual abuse.

Duty to report commission of domestic violence.

It is an offence should a person fail to report his / her knowledge that an act of domestic violence has been committed against a child, person with a disability or an elderly person.

Arrest by peace officer

A peace officer may, without a warrant, arrest any person at the scene of an incident of domestic violence, and may enter the premises where an element of violence has allegedly been committed during an incident of domestic violence without a warrant.

Positive duty on those in the health care and education sector.

The Bill places a positive duty on those in the health and education sector to screen, counsel, and provide emergency medical treatment to a victim.

Online application and service

An application may be brought by submitting an online affidavit as prescribed, and may be brought outside ordinary court hours if the court has a reasonable belief that the complainant may suffer harm.

The interim protection order may be served by the clerk of the Court electronically.


While restaurants, shopping malls and beaches may look somewhat similar to what they did before the pandemic, nevermind lockdown regulations and social distancing protocols, the real estate rental market has not recovered quite as well as the consumer market.

Studies conducted by the TPN Credit Bureau have indicated that, at the start of the hard lockdown of 2020, only half of short-term credit accounts were paid in “current” terms. Already in the third quarter of 2020, the repayment of credit accounts had increased to 70%. The rental market has not been so fortunate in its recovery.

Due to job losses and increasing financial insecurity, the prospect of defaulting on rental payments has become an ominously looming possibility for many tenants. However, TPN’s research has indicated that the number of tenants more than three months in arrears is steadily declining, thanks in part to the rental relief that was provided by numerous landlords when tenants’ financial situations were in dire need of every cent that could be spared. While tenant payment has increased greatly since the third quarter of 2020, it seems as if it was an improvement that levelled out in 2021.

When looking at the section of the market that is still most affected by non-payment, it is unfortunate that it proves to be properties with a rent of under R7 000, which is commonly considered the more affordable market. With the under-R3 000 market, only 65.73% of tenants are currently in good standing according to statistics. This is a clear indication that the tenants struggling the most with rent are also those who have felt the impact most due to lesser wealth.

Research makes it clear that there are numerous tenants who are more than six months in arrears still occupying properties, placing landlords in an increasingly difficult predicament. The unfortunate reality is that where mediation was previously possible, the employment circumstances of many tenants are unlikely to change soon, making mediation a redundant process. The last resort left to landlords thus becomes a court-ordered eviction. However, evicting long-term delinquent tenants who have invertedly become squatters is a costly and drawn-out process. Once a landlord’s legal counsel has advised them on the avenues of legal action available to them within eviction law and the state of disaster regulations, the difficulty of securing a court date makes a court-ordered eviction a problematic solution, to say the least.

When it comes to squatting tenants and evictions, landlords also have to keep in mind that they may not hinder a tenant’s ability to reasonably occupy the property, even if they are in arrears on rent. The law prohibits landlords from activities such as removing doors, cutting off electricity, or changing the locks of the doors – activities certain landlords have previously resorted to in hopes of making the occupation of the property so unbearable that the squatting tenants would leave on their own.

The fear of non-payment has become one of the greatest concerns for landlords in general, leaving many landlords preferring a temporarily vacant property over risking tenants who will end up in arrears and the possibility of squatting. As proof of this, the statistics show that while the national vacancy rate has stabilised at 13.5% in the second quarter of 2021, areas such as Sandton still show a vacancy rate of above 20%.

Hopefully the rental market will mirror the improved activity and regained sense of normalcy of the consumer market and continue to stabilise as 2021 heads into its final quarter. One silver lining around this cloud is that you are not alone. Whether you have further questions regarding tenants falling into arrears or want advice regarding your vacant rental property, our property experts are here to help you on your journey.