Modjadji Florah Mayelane v Mphephu Maria Ngwenyama and Another

Ms Mayelane alleged she concluded a valid customary marriage with Hlengani Dyson Moyana on 1 January 1984. Ms Ngwenyama alleged she married Mr Moyana on 26 January 2008. Mr Moyana passed away on 28 February 2009. Both women sought registration of their respective marriages under the Recognition of Customary Marriages Act and each disputed the validity of the other's marriage. Ms Mayelane applied to the High Court for an order declaring her customary marriage valid and Ms Ngwenyama's marriage null and void on the basis that she (Ms Mayelane) had not consented to it. The High Court granted both orders. Ms Ngwenyama appealed to the Supreme Court of Appeal, which confirmed the validity of Ms Mayelane's customary marriage but overturned the order of invalidity in relation to Ms Ngwenyama's customary marriage, finding both marriages valid. Ms Mayelane sought leave to appeal to the Constitutional Court.

• Whether the consent of an existing first wife in a customary marriage is required for the validity of her husband's subsequent polygynous customary marriage
• How the content of an applicable rule or norm of customary law should be ascertained
• Whether customary law should be developed to give effect to the Bill of Rights
• Whether section 7(6) of the Recognition of Customary Marriages Act relates to validity or proprietary consequences of customary marriages
• Whether a cross-appeal was necessary to address the consent issue in the Supreme Court of Appeal

Leave to appeal granted. Appeal upheld. Paragraph 1(a) of the Supreme Court of Appeal order set aside and replaced with: 'The customary marriage between Hlengani Dyson Moyana and the first respondent, Mphephu Maria Ngwenyama, is declared null and void.' Xitsonga customary law 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 order to operate prospectively. The Registrar directed to send a copy of the judgment and summary to Houses of Traditional Leaders and the Minister for Home Affairs for distribution.

The binding legal principles established are: (1) Customary law must be understood in its own terms and interpreted in light of constitutional values; (2) Section 7(6) of the Recognition of Customary Marriages Act relates to matrimonial property regimes, not validity requirements for customary marriages; (3) The validity requirements for customary marriages are found in section 3 of the Recognition Act; (4) Under section 3(1)(b), a customary marriage must be 'negotiated and entered into or celebrated in accordance with customary law'; (5) Xitsonga customary law is developed to require that the consent of the first wife is necessary for the validity of a subsequent customary marriage entered into by her husband, as this is required by the constitutional rights to equality and human dignity; (6) A customary marriage that is not in accordance with the dignity and equality demands of the Constitution is invalid under the Recognition Act; (7) The Recognition Act is premised on customary marriages being in accordance with constitutional values of dignity and equality.

The Court made several non-binding observations: (1) The issue of how the consent requirement would apply where there is more than one existing wife was not determined as it was not before the Court, and living customary law should be allowed space to adjust to that requirement; (2) Courts must determine customary law as a question of law, not merely fact, and cannot rely solely on assertions by parties; (3) The concept of 'consent' must be understood within the framework of customary law, not through common-law understandings; (4) It is important to ensure customary law's congruence with constitutional values is developed in a participatory manner, reflected by voices of those who live the custom; (5) The development of customary law should generally not occur for the first time in the Constitutional Court except in exceptional circumstances; (6) The assertion by a party of the existence of a rule of customary law may not be enough to establish that rule - courts must satisfy themselves as to the content of customary law; (7) Where there are disputes about customary law content, parties should place evidence of present community practice before courts.

This case is significant for establishing that the consent of a first wife is required for the validity of her husband's subsequent customary marriage under Xitsonga customary law, on the basis of constitutional equality and dignity. It clarifies the approach to ascertaining the content of living customary law and the courts' role in developing customary law to align with constitutional values. It confirms that section 7(6) of the Recognition of Customary Marriages Act deals with matrimonial property regimes, not validity requirements. The case demonstrates the Constitutional Court's methodology for obtaining and evaluating evidence of customary law practices through calling for affidavits from traditional leaders, community members, and experts. It also raises important issues about when and how customary law should be developed by courts, with dissenting judgments emphasizing procedural concerns about developing law for the first time in the Constitutional Court.