The applicant, Ms Mayelane, alleged that she concluded a valid customary marriage with Mr Hlengani Moyana in 1984 under Xitsonga customary law. In 2008, Mr Moyana purportedly entered into a second customary marriage with the first respondent, Ms Ngwenyama, without informing or obtaining the consent of Ms Mayelane. After Mr Moyana’s death in 2009, both women sought registration of their marriages under the Recognition of Customary Marriages Act 120 of 1998, each disputing the validity of the other’s marriage. Ms Mayelane approached the High Court seeking a declaration that her marriage was valid and that Ms Ngwenyama’s marriage was null and void due to lack of her consent. The High Court granted both orders, but the Supreme Court of Appeal held that while Ms Mayelane’s marriage was valid, Ms Ngwenyama’s marriage was also valid, finding that non-compliance with section 7(6) of the Act did not affect validity. Ms Mayelane then sought leave to appeal to the Constitutional Court on the issue of whether her consent was required for the validity of the subsequent marriage.
The appeal was upheld. The order of the Supreme Court of Appeal declaring Ms Ngwenyama’s customary marriage valid was set aside. Ms Ngwenyama’s marriage was declared invalid, and Ms Mayelane’s marriage remained valid. The development of customary law requiring first-wife consent was ordered to operate prospectively.
This case is a landmark decision on the constitutional development of customary law. It affirms the equality and dignity of women in customary marriages, clarifies the interaction between the Recognition of Customary Marriages Act and living customary law, and establishes that first-wife consent is required for the validity of subsequent polygynous customary marriages. It is a leading authority on how courts ascertain and develop living customary law in accordance with the Constitution.