Automated Summary
Key Facts
The case involves a dispute between Modjadji Florah Mayelane (applicant) and Mphephu Maria Ngwenyama (first respondent) regarding the validity of two customary marriages to the same deceased man. The core issue was whether Xitsonga customary law requires the first wife's consent for the validity of subsequent customary marriages. The Constitutional Court determined that the first respondent's marriage was invalid as the applicant (first wife) was not informed of the subsequent marriage, violating Xitsonga customary law as it existed at the time.
Issues
- The court examined whether the Supreme Court of Appeal could have addressed the consent issue in the absence of a cross-appeal, and the procedural implications of not considering it.
- The court considered whether Xitsonga customary law requires the consent of a first wife for the validity of her husband's subsequent polygynous marriages, and whether the Constitution mandates such a requirement to align with equality and dignity rights.
Holdings
- The Court emphasized that the requirement for the first wife's consent under Xitsonga customary law applies prospectively, meaning it does not retroactively invalidate existing customary marriages. This ensures fairness and stability in communities adhering to customary law.
- The Court declared the customary marriage between Hlengani Dyson Moyana and Mphephu Maria Ngwenyama null and void ab initio, as Ms. Mayelane (the first wife) did not consent to the marriage and was not informed of it, violating Xitsonga customary law as it existed at the time.
- The Constitutional Court of South Africa held that Xitsonga customary law must be developed to require the consent of the first wife for the validity of a subsequent customary marriage. This development aligns with constitutional values of equality and human dignity, ensuring that the first wife's rights are protected.
Remedies
- The order in paragraph 5 operates prospectively, applying only to customary marriages entered into after this judgment is published.
- The applicant's and first amicus applications for condonation are granted.
- Leave to appeal is granted.
- Paragraph 1(a) of the order in the Supreme Court of Appeal is set aside and replaced with a declaration that the customary marriage between Hlengani Dyson Moyana and the first respondent is null and void.
- Xitsonga customary law is developed to require the consent of the first wife to a customary marriage for the validity of a subsequent customary marriage entered into by her husband.
- The appeal is upheld.
- The Registrar is directed to send a copy of this judgment and summary to Houses of Traditional Leaders and the Minister for Home Affairs for distribution.
Legal Principles
The Constitutional Court of South Africa used the purposive approach to determine that Xitsonga customary law must be developed to require the consent of the first wife for the validity of subsequent customary marriages, aligning with the Constitution's demands for equality and human dignity. This interpretation emphasized the need to promote the spirit, purport, and objects of the Bill of Rights when adjudicating customary law matters.
Precedent Name
- S v Makwanyane and Another
- Alexkor Ltd and Another v Richtersveld Community and Others
- Bhe and Others v Magistrate, Khayelitsha, and Others
- Fraser v Children's Court, Pretoria North and Others
- Shilubana and Others v Nwamitwa
- Gumede v President of Republic of South Africa and Others
- Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
- Harksen v Lane NO and Others
Cited Statute
- Constitution of the Republic of South Africa
- Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998)
Judge Name
- Skweyiya J
- Yacoob J
- Mogoeng CJ
- Moseneke DCJ
- Cameron J
- Zondo J
- Nkabinde J
- Jafta J
- Khampepe J
- Froneman J
Passage Text
- The facts of this matter concern the situation where there is only one existing wife in a customary marriage and her husband purports to enter into a subsequent customary marriage. The mere fact that there may be situations where there is more than one wife in an existing customary marriage cannot mean that the constitutional norm of equality cannot find application in those cases.
- The Recognition Act is premised on a customary marriage that is in accordance with the dignity and equality demands of the Constitution. A customary marriage where the first wife has consented to the further marriage conforms to the principles of equality and dignity as contained in the Constitution. Where the first wife does not give consent, the subsequent marriage would be invalid for non-compliance with the Constitution.
- In applying indigenous law, it is important to bear in mind that, unlike common law, indigenous law is not written. It is a system of law that was known to the community, practised and passed on from generation to generation. Without attempting to be exhaustive, we would add that indigenous law may be established by reference to writers on indigenous law and other authorities and sources, and may include the evidence of witnesses if necessary. However, caution must be exercised when dealing with textbooks and old authorities because of the tendency to view indigenous law through the prism of legal conceptions that are foreign to it.