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Polygamous marriage & customary law


The role of the consent of the first wife, married under customary law, gives validity to a husband’s subsequent polygamous marriages – Mayelane v Ngwenya & Another (CCT 57/12) [2013] ZACC 14 (30 May 2013)

The applicant in this case alleged that she had married the deceased in terms of Tsonga Customary Law on 1 January 1984. Their marriage had not been registered. The first respondent alleged that she had married the deceased on 26 January 2008. The deceased had passed away on 28 February 2009. Both of these parties now disputed the validity of the other’s marriage.

The applicant successfully applied to the North Gauteng High Court, Pretoria, for an order declaring her customary marriage valid and the first respondent’s purported customary marriage invalid. On appeal, the Supreme Court of Appeal confirmed the validity of the applicant’s customary marriage, but ruled that the first respondent had also concluded a valid customary marriage with the deceased.

On appeal to the Constitutional Court, the applicant argued that the purported second marriage was invalid as she had not consented to it. Material issues for determination at the Constitutional Court were whether the consent issue should have been determined by the Supreme Court of Appeal as well as whether the consent of the first wife was necessary for the validity of her husband’s subsequent customary marriage.

The Court found that the present matter clearly raised constitutional questions insofar as it related to the interpretation of legislation envisaged by the constitution and the fundamental rights to equality and human dignity. The Court found that this case also implicates the powers of the courts and obligations both to apply customary law and to promote the spirit, purport and objects of the Bill of Rights when developing the customary law. 

Section 211(3) of the Constitution states that “courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.” Section 39(2) provides that when developing customary law a court “must promote the spirit, purport and objects of the Bill of Rights.”  The Constitution thus “acknowledges the originality and distinctiveness of indigenous law as an independent source of norms within the legal system” such that customary law “feeds into, nourishes, fuses with and becomes part of the amalgam of South African law.”

The Constitutional Court was of the opinion that in accordance with the court’s obligations to develop living customary law in a manner that is consistent with the Constitution, Tsonga customary law had to be developed to include a requirement that the consent of the first wife is necessary for her husband’s subsequent customary marriage. This is in accordance with the Constitutional rights of human dignity and equality. The first respondent’s marriage was found to be invalid because the applicant had not been informed. The import of the judgment is that from now on further Tsonga customary marriages must comply with the consent requirement in order to be valid.

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