Ngwenyama v Mayelane and Another

The first respondent married the deceased in a customary marriage in 1984. The marriage was unregistered but subsisting at the time of the deceased’s death in 2009. In 2008, the deceased purported to enter into a second customary marriage with the appellant. Before contracting the second marriage, the deceased did not apply to court for approval of a written contract regulating the matrimonial property system as required by s 7(6) of the Recognition of Customary Marriages Act 120 of 1998. After the deceased’s death, both women sought registration of their respective marriages. The first respondent approached the High Court for an order declaring the second marriage null and void ab initio and directing registration of her marriage. The High Court held that non-compliance with s 7(6) rendered the second customary marriage invalid.

The appeal succeeded partially. The order declaring the second customary marriage null and void was set aside. The application to register the first respondent’s marriage was granted. Each party was ordered to pay its own costs, and no costs order was made on appeal.

This decision clarified that non-compliance with s 7(6) of the Recognition of Customary Marriages Act does not invalidate a subsequent customary marriage. It affirmed a constitutional, purposive interpretation of customary marriage legislation, protecting the dignity, equality and proprietary interests of women in polygamous customary marriages, and aligned statutory interpretation with living customary law.