Consent in Polygamous Marriages: Mayelane v Ngwenyama 2013 (4) SA 415 (CC)
Modjadji Florah Mayelane (“Ms Mayelane”) alleged she concluded a valid customary marriage with Hlengani Dyson Moyana (“Moyana”) on 1 January 1984. Ms Mphephu Maria Ngwenyama (“Ms Ngwenyama”) alleged she married Moyana on 26 January 2008. Moyana passed away on 28 February 2009. Both women sought registration of their respective marriages under the Recognition of Customary Marriages Act (RCMA).1 Ms Mayelane disputed Ms Ngwenyama’s marriage because, she argued, she had not consented to it, and that Xitsonga customary law required her consent for its validity.
Issue: Is a husband’s subsequent polygynous customary marriage valid without the existing wife’s consent?
In the High Court
Ms Mayelane applied to the North Gauteng High Court, Pretoria, seeking an order declaring her customary marriage valid and Ms Ngwenyama’s marriage null and void. Her primary contention was that Ms Ngwenyama’s marriage was invalid because it was not preceded by an application to a court to approve a written contract regulating the future matrimonial property system, as required by section 7(6) of the RCMA. She also alleged she had not consented to the marriage, but this was not central to the High Court’s disposal. Ms Ngwenyama argued her marriage was properly and publicly performed in accordance with customary law and was unassailable. The High Court granted both orders, declaring Ms Mayelane’s marriage valid and Ms Ngwenyama’s marriage null and void ab initio (from the beginning). The court also directed the Minister of Home Affairs to register Ms Mayelane’s marriage.
The High Court interpreted section 7(6) as creating an obligatory requirement for the validity of a subsequent customary marriage. It held that if the husband fails to obtain court approval of the written contract regulating the matrimonial property regime of the subsequent marriage, that marriage is void. The court emphasised that section 7 aims to protect both existing and new intended spouses by safeguarding their proprietary positions.
Judge Bertelsmann reasoned that non-compliance with the “mandatory provisions” of section 7(6) must lead to invalidity, otherwise, the court’s intervention would be superfluous. The use of the word “must” in the provision, coupled with the court’s power to refuse the contract under section 7(7)(b)(iii), indicated a peremptory legislative intent.
The court also considered the “gross infringement” of the first wife’s fundamental rights (dignity, equality, marital support, and physical and emotional integrity) if a husband could enter into a further marriage without her knowledge and acquiescence. The court explicitly stated that the question of consent of the first wife being a requirement under customary law was not considered, as it was deemed unnecessary given the interpretation of section 7(6).
In the Supreme Court of Appeal (SCA)
Ms Ngwenyama appealed the High Court’s order of invalidity in relation to her customary marriage. The core issue for the SCA was the interpretation of section 7(6) of the RCMA and whether non-compliance invalidates a subsequent customary marriage.
The SCA confirmed the validity of Ms Mayelane’s customary marriage. However, it overturned the order of invalidity in relation to Ms Ngwenyama’s customary marriage and found it too was valid. It ordered the dismissal of Ms Mayelane’s prayer to declare Ms Ngwenyama’s marriage null and void.
The SCA disagreed with the High Court primarily because the requirements for the validity of customary marriages are found in section 3 of the RCMA. Section 7(6) does not relate to the validity but to the proprietary consequences of such marriages. The SCA emphasised that section 7(6) is intended to protect the matrimonial property rights of all spouses in polygamous marriages, not just the first wife. It noted that the RCMA does not contain an express sanction for non-compliance with section 7(6), and that nullifying the marriage would undermine the subsequent wife’s right to dignity and equality, as well as render her children illegitimate.
The SCA held that an interpretation leading to invalidity would be out of step with the living customary law and would frustrate the RCMA’s purpose of achieving substantive equality and recognition of customary marriages. The court concluded that the consequences of non-compliance with section 7(6) were adequately met by treating subsequent customary marriages as being marriages out of community of property. This protects the first wife’s rights while ensuring the subsequent marriage remains valid.
The issue of Ms Mayelane’s consent was argued as an alternative in the SCA, but the Court did not consider it necessary to deal with the question because there was no cross-appeal challenging the High Court’s finding on the validity of the second customary marriage.2
In the Constitutional Court
Ms Mayelane sought leave to appeal against the SCA’s order validating Ms Ngwenyama’s customary marriage. The Constitutional Court identified the following key issues to address:
- Whether the SCA should have determined the consent issue.
- Whether the consent of a first wife is necessary for the validity of her husband’s subsequent customary marriage? This entailed considering whether the RCMA directly prescribes consent or whether living Xitsonga custom does.
- If neither, does the Constitution require the law to be developed to include this requirement.
The Constitutional Court endorsed the SCA’s interpretation of section 7(6). It agreed that the RCMA does not directly prescribe the first wife’s consent as a requirement for the validity of a subsequent customary marriage. Section 3(1)(a) speaks only of the consent of the “prospective spouses” (i.e., the bride and groom-to-be). Section 6 (spousal equality) does not introduce validity requirements but imposes consequences on an already validly concluded marriage. Section 7 (proprietary consequences) contemplates multiple marriages but does not mention the first wife’s consent for validity. It focuses on property matters.
Pursuant to section 3(1)(b) of the RCMA, which requires the marriage to be “negotiated and entered into or celebrated in accordance with customary law,” the Constitutional Court sought to determine the content of living Xitsonga customary law on the consent of the first wife. Noting the challenges in determining the “living” content of customary law, the court directed parties and amici to provide further representations on Xitsonga customary law.
After considering varied evidence from individuals in polygynous marriages, traditional leaders, advisors, and experts, the Constitutional Court found the picture to be one of nuance and accommodation rather than contradiction. The court summarised the Xitsonga custom as follows:3
(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.
The court affirmed that determining customary law is a matter of law, not fact, and courts must determine how best to ascertain its content. It concluded that Xitsonga customary law must be developed to include a requirement that the consent of the first wife is necessary for the validity of a subsequent customary marriage. This development aligns with the constitutional demands of human dignity and equality. The lack of consent undermines a wife’s autonomy, her ability to make informed decisions about her personal life, health, and proprietary consequences. The RCMA itself is premised on customary marriages being in accordance with constitutional dignity and equality demands. Section 6 means the wife has full status and capacity in relation to personal consequences of marriage.
The Constitutional Court’s finding that consent is a necessary component for validity was to operate prospectively from 30 May 2013. This was so to avoid unfairly prejudicing parties to existing customary marriages who may have entered into them without knowing consent was a requirement. Despite the prospective development of the law, the Constitutional Court found Ms Ngwenyama’s marriage invalid based on the Xitsonga customary law as it existed at the time of the purported marriage. This is because Ms Mayelane was not informed of the impending subsequent marriage, which was a contravention of custom.
Author’s opinion
The Mayelane v Ngwenyama judgment represents an important decision that underscores the complex interplay between traditional customary law, modern statutory law (the RCMA), and the transformative values of the Constitution. It offered the highest court in the land an opportunity to clarify a matter that had affected many women in customary marriages, where their husbands unilaterally decided to marry a second (or additional) wife.
The High Court’s initial finding, which hinged entirely on the perceived peremptory nature of section 7(6) of the RCMA, was an unexpected faux pas. By interpreting a provision primarily concerned with matrimonial property as a determinant of marriage validity, the court created a rigid hurdle that ignored the dynamic nature of customary law and the practical realities faced by women in polygynous unions. Thankfully, the SCA corrected this by re-aligning section 7(6) with its intended purpose of regulating proprietary consequences, not validity, and emphasising the protection of all wives in polygynous marriages.
The Constitutional Court’s engagement with the concept of “living” customary law is commendable, as it sought to understand the nuanced practices of the Xitsonga community rather than imposing an external common-law interpretation. However, the process of calling for additional evidence from the community, and then interpreting it to establish a “nuance and accommodation” rather than a clear contradiction, raised legitimate concerns from the dissenting judges.
Zondo J’s argument that an appellate court should not resolve factual disputes arising from new evidence without trial proceedings is a strong point, which highlights potential procedural unfairness. Likewise, Jafta J’s dissent is particularly persuasive in its critique of the main judgment’s decision to develop Xitsonga customary law to require the first wife’s consent. His argument that the evidence already demonstrated that consent was a requirement in Ms Mayelane’s community and that, therefore, no development was necessary, is significant. This would have allowed the Court to reach the same outcome, which was the invalidity of Ms Ngwenyama’s marriage due to lack of consent. It would have achieved this without assuming the role of a court of first instance in developing customary law. Such development is generally undesirable unless exceptional circumstances warrant it.
The prospective nature of the Constitutional Court’s development of the consent requirement is a practical and sensitive approach. It acknowledges that a retrospective application would have caused significant disruption and injustice to marriages already concluded in good faith under previous understandings of the law. Yet, the core finding that Ms Ngwenyama’s marriage was invalid due to the existing Xitsonga customary law (lack of informing the first wife) means that the immediate practical impact on future marriages was limited by the prospective order.
Ultimately, Mayelane v Ngwenyama represents a vital step in harmonising customary law with constitutional imperatives, particularly in empowering women in polygynous marriages. It affirmed that, at a minimum, the first wife must be informed of an impending subsequent marriage under Xitsonga custom, and going forward, her explicit consent is now a constitutional requirement for validity. However, the path taken by the majority in developing the law, while achieving a constitutionally aligned outcome, drew valid criticism for its procedural implications and its potential bypass of already-existing customary rules. The case highlights the ongoing challenge of defining and evolving “living” customary law while respecting both tradition and fundamental human rights.
You can read the Constitutional Court’s Mayelane v Ngwenyama judgement here.
Written by Theo Tembo
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