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The Consent of the First Wife in a Polygamous Marriage as a Requirement for the Validity of her Husband's Subsequent Marriage under South Africa's Recognition of Customary Marriages Act: Mayelane v Ngwenyama

  • Ntombizozuko Dyani-Mhango

Abstract

In the South African case of Mayelane v Ngwenyama, the Constitutional Court held that the consent of the first wife in a polygamous marriage is a requirement for a subsequent marriage of her husband to be valid, even though the Recognition of Customary Marriages Act is silent on the issue. This article argues that this decision reinforces the equality of spouses in a polygamous marriage and customary marriages in general, as envisaged by the act and as the constitution demands. It also criticizes the legislature's failure to give guidance regarding the absence of consequences for failure to comply with the requirement for a husband to seek the court's approval of a contract to regulate future marriages before he marries a subsequent wife. The article suggests that the legislature should revisit the Recognition Act to repeal the provision or stipulate consequences for the failure to comply.

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1 Sec 211 of the Constitution requires courts to “apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law”.

2 Ibid.

3 The Recognition of Customary Marriages Act 120 of 1998.

4 Id, sec 1.

5 Ibid.

6 Id, sec 2.

7 MM v MN 2010 (4) SA 286 (GNP); MN v MM 2012 (4) SA 527 (SCA); Mayelane v Ngwenyama and Minister for Home Affairs 2013 (4) SA 415 (CC). The judgments are also available at: <http://www.saflii.org/za/cases/ZACC/2013/14.html> and <http://www.saflii.org/za/cases/ZASCA/2012/94.html> (last accessed 21 July 2015).

8 Recognition Act, sec 2.

9 Id, secs 2(2), 2(4) and 3(1).

10 Id, sec 3(1).

11 The Law of Evidence Amendment Act 45 of 1988, sec 1(1). This provision has been criticized for “reducing customary law to foreign law in Africa”: Mabuza v Mbatha 2003 (4) SA 218 (C), para 30.

12 Id, sec 1(2) stipulates: “The provisions of subsection (1) shall not preclude any party from adducing evidence of the substance of a legal rule contemplated in that subsection which is in issue at the proceedings concerned.”

13 See Mayelane v Ngwenyama, above at note 7, para 61.

14 Himonga, C and Pope, AMayelane v Ngwenyama and Minister for Home Affairs: A reflection on wider implications” (2013) Acta Juridica 318 at 327.

15 Mokgoro J in Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC), para 172, also endorsed by Langa DCJ in Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC), para 43.

16 Bhe, id, para 152.

17 Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC), paras 53 and 54.

18 See Gumede (born Shange) v President of the Republic of South Africa 2009 (3) SA 152 (CC), para 21. Sec 39(2) of the Constitution states that “when interpreting any legislation, and when developing the common law or customary law, every court or tribunal or forum must promote the spirit, purport and objects of the Bill of Rights”.

19 Explaining the role of sec 39(2), Ngcobo J in Daniels v Campbell NO 2004 (5) SA 331 (CC) (at para 56) said: “Our Constitution contemplates that there will be a coherent system of law built on the foundations of the Bill of Rights, in which common law and indigenous law should be developed and legislation be interpreted so as to be consistent with the Bill of Rights and with our obligations under international law.” Courts have developed customary law to the extent that it is possible.

20 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC), para 39.

21 Above at note 18.

22 Id, para 22 (citations omitted).

23 See for example Bhe, above at note 15, where the Court deemed the customary law principle of primogeniture unconstitutional for violating the rights to equality and dignity.

24 Ibid.

25 Various academics have written about these cases. See for example Van Niekerk, GJThe courts revisit polygamy and the Recognition of Customary Marriages Act 120 of 1998: Ngwenyama v Mayelane 2012 4 SA 527 (SCA); Mayelane v Ngwenyama 2013 4 SA 415 (CC)” (2013) 28 SA Public Law 369; Himonga and Pope “Mayelane v Ngwenyama”, above at note 14; Maithufi, IPThe validity of a second or further customary marriage: Call for the amendment of the Recognition of Customary Marriages Act of 1998 Ngwenyama v Mayelane (474/11) [2012] ZASCA 94 (1 June 2012)” (2013) 76 Journal of Contemporary Roman Dutch Law 688; Bekker, JC and Van Niekerk, GJBroadening the divide between official and living customary law: Mayelane v Ngwenyama” (2010) 73/4Journal of Contemporary Roman Dutch Law 679.

26 MN v MM, above at note 7.

27 The Recognition Act, sec 7.

28 These facts are taken from the High Court judgment: MM v MN, above at note 7.

29 Id, para 8.

30 Id, para 9.

31 Sec 4(9) of the Recognition Act provides that failure to register a customary marriage does not invalidate that marriage.

32 MM v MN, above at note 7, para 11.

33 Id, para 15.

34 Id, para 12.

35 Id, para 13.

36 Id, para 14.

37 Id, para 41.

38 Id, para 24.

39 Id, para 23.

40 The affected rights include the rights to dignity, physical and emotional integrity, protection from emotional or economic abuse, equal status as a marriage partner, marital intimacy and trust: id, para 27.

41 Ibid.

42 Id, para 28.

43 MN v MM, above at note 7, para 8.

44 Id, para 22.

45 Id, paras 22 and 36.

46 Id, para 9.

47 Ibid.

48 Id, para 19.

49 Id, para 20.

50 The Court did not specifically follow the suggested approach, but the implication of the court's judgment is that that the Court began with enquiring into the validly of the second marriage and, once it found that the marriage was invalid, it did not see the need to deal with sec 7(6).

51 Mayelane v Ngwenyama, above at note 7. There were three judgments for this case: the majority judgment by Froneman J, Khampepe J and Skweyiya J, and two minority judgments by Zondo J and Jafta J. Both minority judgments disagree with the main judgment's approach to develop the Xitsonga customary law, arguing (at paras 130 and 142–50) that it was not necessary to do so as the second marriage was invalid for failing to comply with the requirements in sec 3(1)(b) requiring the marriage to be negotiated and celebrated in accordance with customary law.

52 Id, para 33.

53 Ibid.

54 Id, para 53.

55 Id, para 72.

56 Ibid.

57 Id, para 73.

58 Id, para 74.

59 Id, para 79.

60 Ibid.

61 Gumede, above at note 18, para 34, stating: “Only women in a customary marriage are subject to these unequal proprietary consequences.”

62 There is nothing in the Recognition Act that provides for a wife to be married to more than one husband.

63 The Court has acknowledged that the Recognition Act “abolishes the marital power of the husband over the wife and pronounces them to have equal dignity and capacity in the marriage enterprise”. See Gumede, above at note 18, para 32.

64 Bhe, above at note 15, and Shilubana v Nwamitwa 2009 2 SA 66 (CC).

65 See the long title of the Recognition Act.

66 Mayelane v Ngwenyama, above at note 7, para 78 (emphasis added).

67 See Gumede, above at note 18, para 21.

68 The Constitution, sec 9.

69 Fraser v Children's Court, Pretoria North and Others 1997 (2) SA 261 (CC), para 20.

70 The Constitution, sec 9(3).

71 Id, sec 9(5). See Harksen v Lane NO 1998 (1) SA 300 (CC), para 53, which stipulates the stages of enquiry into the violation of the right to equality.

72 For a discussion of the protection of the competing rights of wives in a polygamous marriage, see Himonga and Pope “Mayelane v Ngwenyama”, above at note 14.

73 Id at 333.

74 Bhe, above at note 15, paras 93–94.

75 President Zuma does not shy away from taking a different wife on his official visits worldwide or from taking all of his wives to national events such as the opening of Parliament; this is well-documented in different media.

76 This interpretation of sec 7(6) of the Recognition Act was endorsed by the Court on appeal. See Mayelane v Ngwenyama, above at note 7, para 41, where the majority judgment stated: “To interpret it as imposing validity requirements over and above those set out in section 3 would undermine the scheme of the Recognition Act.”

77 For a summary of the arguments put forward by various academic writers on this issue and customary marriages in general, see J Heaton “Family Law” 2010 Annual Survey 435 at 485–92.

78 Maithufi, IP and Moloi, GMBThe current legal status of customary marriages in South Africa2002 TSAR 599 at 609; Bakker, PThe new unofficial customary marriage: Application of section 7(6) of the Recognition of Customary Marriages Act 120 of 19982007 (70) Journal of Contemporary Roman Dutch Law 481 at 487.

79 Bakker, id at 487.

80 J Heaton South African Family Law (3rd ed, 2010, LexisNexis) arguing (at 212) that the marriage should be rendered void as it would leave the interests of the existing wife and her family group unprotected. However, see Bekker and Van Niekerk “Broadening the divide”, above at note 25, arguing (at 684) that the drafters of this act may not have intended the second marriage to be rendered void, since the act “affords such a great deal of lenience” by not providing that failure to register a customary marriage renders it void.

81 Mekwe, MSThe effect of non-compliance with section 7(6) of the Recognition of Customary Marriages Act (Act 120 of 1998) and validity of customary marriages” (2005) 7 South African Deeds Journal 23 at 24; and Bronstein, VConfronting custom in the new South African state: An analysis of the Recognition of Customary Marriages Act 120 of 1998” (2000) 16 South African Journal of Human Rights 562.

82 Himonga, CThe advancement of African women's rights in the first decade of democracy in South Africa: The reform of the customary law of marriage and succession” (2005) Acta Juridica 82 at 106.

83 See also GJ Van Niekerk “The courts revisit polygamy”, above at note 25, suggesting the same although not explaining how the legislature ought to revisit this provision, except that the legislature has to clarify it.

84 MM v MN, above at note 7, para 22.

85 Heaton South African Family Law, above at note 80 at 214.

* Associate professor, School of Law, University of the Witwatersrand, Johannesburg, South Africa. Two earlier drafts of this article were presented at the Law & Society annual meeting held in Honolulu, Hawaii, 3–9 June 2012 and in the Tri Nations Conference in Public Law at the Wits Rural Facility, Polokwane, South Africa, 24–26 June 2013. The author would like to thank the participants at these conferences, Mtende Mhango and the reviewers for their useful comments. All errors are the author's.

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The Consent of the First Wife in a Polygamous Marriage as a Requirement for the Validity of her Husband's Subsequent Marriage under South Africa's Recognition of Customary Marriages Act: Mayelane v Ngwenyama

  • Ntombizozuko Dyani-Mhango

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