In a matter that will in all likelihood prove significant for the future regulation of polygamous customary marriages in South Africa, the Constitutional Court, without invitation from the parties and without hearing argument, developed living customary law of the Xitsonga (Tsonga) community to include a requirement that the first wife must provide her consent for her husband to marry subsequent wives.  For the majority of the Court, this legal development was necessitated to ensure that customary practices are in conformity with Constitutional values.

Facts, Procedural History, and Arguments

This matter came before the Constitutional Court as an application for leave to appeal against a decision of the Supreme Court of Appeal which overturned a decision of the North Gauteng High Court.  At the heart of the dispute is the question whether the consent of the first wife is a prerequisite for the validity of subsequent marriages in terms of the Recognition of Customary Marriages Act, 1998 (Act).  The Act does not explicitly regulate this question, which caused debate over the factual and interpretive assessment of two sections in the Act.  First, section 3(1) of the Act requires that customary marriages be ‘negotiated and entered into or celebrated in accordance with customary law’.  The parties offered differing contentions with whether the customs of the Tsonga community requires consent of the first wife.  Second, section 7(6) of the Act requires that a husband who wishes to enter into a subsequent customary marriage must apply to court for the approval of a written contract that will govern the future matrimonial property system of his marriages.  The parties dispute over whether the failure to seek this court order renders the second marriage void.

Modjadji Florah Mayelane, the applicant, and Mphephu Maria Ngwenyama, the first respondent, both belong to the Tsonga community.  In accordance with the customs of the Tsonga people, Mayelane married Hlengani Dyson Moyana in 1984.  After her husband’s death in 2009, Mayelane discovered that her husband may have entered into another customary marriage with Ngwenyama a year before his death.  Although neither marriage was registered during their existence, as it is not a requirement for a customary marriage, Ngwenyama did register her marriage with the Department of Home Affairs following Moyana’s death.  Moyane never sought a court order as contemplated in terms of section 7(6).

Mayelane sought the deregistering of the second marriage in the High court.  Dlodlo J found that a section 7(6) approval is an ‘obligatory’ requirement for the validity of a secondary marriage, and that ‘no further marriage may be concluded without a contract that is approved by the Court.’  The SCA overturned this decision.  The SCA held that the procedure described in section 7(6) is not a requirement for the validity of second customary marriage.  The Court reasoned that the purpose of section 7(6) is only to regulate the proprietary consequences of the second marriage.  The SCA ruled that non-compliance with section 7(6) by no means invalided the second marriage.  Non-compliance only causes the secondary marriage to be out of community of property.

In the Constitutional Court, Mayelane sought leave to appeal the SCA for an order declaring the marriage between Ngwenyama and Moyana void.  Mayelane agrees with the High Court that the procedure envisaged in section 7(6) is a requisite for a valid marriage.  She contends that section 7(8)  — which requires that all persons who have an interest in the matter to be joined to the section 7(6) proceedings — envisages that existing wives be joined and informed of the intended marriage.  Furthermore, Mayelane argues that the customs and traditions of the Tsonga people require the consent of the first marriage.  As this was absent in the case of the marriage between Ngwenyama and Moyana the requirements of section 3(1) have not been met.  In response, Ngwenyama supports the holding of the SCA that section 7(6) only regulates the patrimonial consequences of subsequent customary marriages.  Furthermore, she refutes that there is any evidence of practice to suggest that the Tsonga community requires the consent of the first wife.

After hearing argument on these matters, the Constitutional Court ordered that further evidence is provided on customary traditions and practices of the Tsonga community with respect to the consent requirement.

Judgment of the Constitutional Court

The majority of the Court (authored by Froneman J, Khampepe J and Skweyaya J) agreed with the approach of the SCA as the Act, and the provisions upon which Mayelane relied, does not deal at all with the validity requirements of a customary marriage.  The purpose of these provisions is only to regulate the matrimonial property regime of the marriages; the actual requirements for a valid customary marriage have to be found in living Tsonga customary law.

After reviewing the further evidence, the majority found that the Tsonga customary law can be described as follows:

(a) although not the general practice any longer, VaTsonga men have a choice whether to enter into further customary marriages; (b) when VaTsonga men decide to do so they must inform their first wife of their intention; (c) it is expected of the first wife to agree and assist in the ensuing process, leading to the further marriage; (d) if she does so, harmony is promoted between all concerned; (e) if she refuses consent, attempts are made to persuade her otherwise; (f) if that is unsuccessful, the respective families are called to play a role in resolving the problem; (g) this resolution process may result in divorce; and finally, (h) if the first wife is not informed of the impending marriage, the second union will not be recognised, but the children of the second union will not be prejudiced by this as they will still be regarded as legitimate children.

Accordingly, since Mayelane was not informed of her husband’s subsequent marriage, the  Constitutional Court concluded that there was not valid customary marriage between Ngwenyama and Moyana (the second purported wife).

Despite not being invited by the parties to do so or that the resolution of the dispute did not require it, the majority, acting in terms of section 39(2) of the Constitution which requires the Court ‘when developing … customary law [to] to promote the spirit, purport and objects of the Bill of Rights’, elected to develop customary law.

The majority found that a mere requirement to inform the first wife of a subsequent marriage falls short of the constitutional protection to equality (section 9) and human dignity (section 10).   More particularly, the majority reasoned:

[W]here subsequent customary marriages are entered into without the knowledge or consent of the first wife, she is unable to consider or protect her own position. She cannot take an informed decision on her personal life, her sexual or reproductive health, or on the possibly adverse proprietary consequences of a subsequent customary marriage. Any notion of the first wife’s equality with her husband would be completely undermined if he were able to introduce a new marriage partner to their domestic life without her consent.

[Furthermore], the right to dignity includes the right-bearer’s entitlement to make choices and to take decisions that affect his or her life – the more significant the decision, the greater the entitlement. Autonomy and control over one’s personal circumstances is a fundamental aspect of human dignity. However, a wife has no effective autonomy over her family life if her husband is entitled to take a second wife without her consent. Respect for human dignity requires that her husband be obliged to seek her consent and that she be entitled to engage in the cultural and family processes regarding the undertaking of a second marriage.

The Constitutional Court therefore concluded that the dictates of equality and marriage require that the first wife must consent to subsequent marriages.  Owing to the potential hardships faced by subsequent wives who were married without the consent of the first wife, the majority held that this new requirement of consent is not to be applied retrospectively.

Zondo J, in a concurring opinion, held that it was unnecessary for the majority to develop the customary law because the evidence that was presented reflected that Tsonga customary law did already require that the consent of the first wife is needed for the validity of subsequent marriages.

Jafta J also wrote a concurring opinion, with whom Mogoeng CJ and Nkabinda J concurred. He also considered there to be sufficient evidence that Tsonga custom required the first wife’s consent for the validity of the subsequent marriages.  Jafta J also cautioned against the approach of the majority in electing to develop the common law as he emphasized that that courts should only develop customary law of their own accord in exceptional circumstances.

Download the judgment here.