Agnes Sithole: The woman who fought South Africa’s sexist marriage laws

Agnes Sithole has become an unlikely hero for hundreds of thousands of black women in South Africa.

At 72, she took her husband to court to stop him selling their home against her wishes – and in the process took on decades-old apartheid-era laws to keep what was rightfully hers.

With hindsight, Agnes Sithole knew her marriage would be difficult. She married Gideon, her high-school sweetheart in 1972, but quickly found herself turning a blind eye to what would become decades of infidelity.

“He was always in and out of different affairs but it never affected me until between 2016 and 2017, when he wanted to sell all our assets,” she says. “His answer was always the same – that it was his house, his property, and I’ve got nothing.”

Faced with losing her home, Agnes decided in 2019 to fight her husband in the South African courts, a highly unusual step for a black woman of her generation.

“I was 72 at the time – where was I going to go and where would I start? So my only choice was fight or find myself on the street at my age,” she says. “I think necessity made me brave. If there was no necessity then maybe I wouldn’t have done it. I had to be that somebody who said no.”

‘Women had no choice’

Agnes married at a time when South Africa was run by its white minority and black couples automatically wed under a system called “out of community of property”, which gave men all property rights.

“Back then, women were not given any choice – it was either marry out of community of property or you don’t get married at all,” explains Agnes.

An amendment to the Matrimonial Property Act in 1988 allowed black couples to change the status of their marriage to “in community” – giving equal property rights to women.

However, it was not automatic. Black women had to have the consent of their husbands, pay for an application, and lodge it within a two-year period.

“We knew that the law had changed and thought it had changed for everyone,” recalls Agnes. “[Later], when I realised that the law had cheated me, that’s when I realised that I would have to fight this.”

‘I’m a hustler’

Agnes was born in Vryheid, a small coal-mining town in the north of KwaZulu-Natal.

Across the country, there was a clear economic divide between races in the 1940s. Her dad cleaned trains for South African Railways and made “tea for his white bosses in the office”. Her mum was a “kitchen girl” who would wash, clean and cook for “privileged white families”.

“I was born from the poorest of the poor, my parents were labourers. They set a very good example for us,” says Agnes.

“We used to go to church every weekend. When I grew up, Catholics weren’t really allowed to divorce, even if I saw there were things that were not going well,” she adds. “I didn’t want to remarry or have my children to grow up without both parents at home – it’s all I’d known.”

Despite the challenges, Agnes saw her parents thrive by staying together and seeing their struggle made her determined to have a better life.

She trained as a nurse before marrying Gideon. Later, she started selling clothes from her home and took on a number of jobs to make ends meet.

“I soon found that I was all by myself, because my husband was in and out of our lives,” says Agnes, who had four children with him.

“I would come home from work and then start sewing, buying and selling clothes. I was doing so many things at the time because I was determined that my children would go to school,” she continues.

“I’m a hustler by nature, I’ve been hustling all my life. Instead of fighting for somebody to do things for me, I would do it for myself.”

For Agnes, the marriage took a clear downward spiral about nine years ago. After coming back from work one evening, she found Gideon had moved into the spare bedroom without explanation.

The couple continued to live under the same roof but led completely separate lives.

“We would bump into each other along the corridors, stairs or when parking and not say a word,” she recalls.

Agnes says Gideon never spoke to her about his plan to sell the house and “it was a shock to have people randomly show up at my home for a viewing”.

Realising she could end up homeless, in early 2019 she filed an order citing financial abuse – arguing she had equally contributed to building their family and shared wealth.

Two years later, South Africa’s Constitutional Court confirmed an earlier High Court ruling that the existing laws had discriminated against black couples, and black women in particular.

It ruled that all marriages before 1988 would be changed to “in community of property” – giving women equal property rights.

Agnes and her youngest daughter watched the verdict online from her bedroom. Initially, she didn’t realise she had won the case until her lawyer called her.

“We couldn’t figure out what was happening because of the [legal] terminology,” she says. “We were clueless the entire time. My stomach was in knots, I was scared but I had faith.

“I shed tears of joy. It dawned on me that we had saved thousands of women in marriages similar to mine,” says Agnes.

Agnes says she owes her fighting spirit to the many challenges she’s had to face on her own.

“It’s my character, who I am and it’s how I do things, I want to be self-reliant in every way,” she continues. “It’s definitely something rare in our culture and from women of my generation.

“For me, winning the case is one of the best things that has ever happened to me.”

Agnes has even been able to forgive Gideon, who died from Covid-19 during the court case.

Two days before his death, he apologised to his wife and his daughters for how things had turned out.

Agnes later found out she had not only been left out of his will, but he had left the marital home to someone else. However, the court’s ruling superseded his wishes.

“We forgave him and I’m at peace. I regret nothing and most importantly I fulfilled my marriage [until the very end],” says Agnes.

“I didn’t want anything that was his but he wanted to take everything, including what I owned and worked for and that’s what I didn’t like.”