Mphephu Maria Ngwenyama v Modjadji Florah Mayelane & Minister of Home Affairs

The first respondent (Mayelane) married the deceased (Hlengani Dyson Moyana) according to customary law on 1 January 1984 at Nkovani Village, Limpopo. Three children were born of this union. The marriage was not registered. The deceased died on 28 February 2009. When the first respondent sought to register the customary marriage after the deceased's death, she discovered that the appellant (Ngwenyama) had also sought to register a customary marriage allegedly contracted between her and the deceased on 26 January 2008. The first respondent brought an application in the North Gauteng High Court seeking to have the appellant's marriage declared null and void ab initio because: (a) she had not been consulted before it was concluded, and (b) the deceased had failed to comply with section 7(6) of the Recognition of Customary Marriages Act 120 of 1998, which requires a husband who wishes to enter into a further customary marriage to apply to court to approve a written contract governing the proprietary consequences of the marriages. The high court (per Bertelsmann J) granted the application, finding that the second customary marriage was null and void ab initio due to non-compliance with section 7(6). The appellant appealed with leave.

• Whether failure by a husband to comply with section 7(6) of the Recognition of Customary Marriages Act 120 of 1998 (requiring court approval of a written contract regulating matrimonial property before entering a second customary marriage) renders the subsequent customary marriage null and void ab initio
• What is the proper interpretation of section 7(6) of the Recognition of Customary Marriages Act 120 of 1998
• Whether section 7(6) should be interpreted in accordance with section 39(2) of the Constitution to promote the spirit, purport and objects of the Bill of Rights
• What are the proprietary consequences of a second customary marriage entered into without compliance with section 7(6)

The appeal partially succeeded. The order of the high court was set aside and replaced with the following: (a) The application to declare the customary marriage between the deceased and the appellant null and void ab initio was dismissed. (b) The second respondent was directed to register the marriage between the first respondent and the deceased. (c) Each party was ordered to pay its own costs. There was no order as to costs in the Supreme Court of Appeal.

Section 7(6) of the Recognition of Customary Marriages Act 120 of 1998 regulates the proprietary consequences of polygynous customary marriages and does not affect the validity of such marriages. The requirements for validity of customary marriages are set out in section 3 of the Act. Where a husband fails to comply with section 7(6) by not obtaining court approval of a written contract before entering into a further customary marriage, the consequence is that the subsequent marriage remains valid but is out of community of property. This interpretation: (a) is consistent with the scheme of the Act as a whole; (b) promotes the constitutional rights to dignity and equality of all women in polygynous marriages; (c) gives effect to section 39(2) of the Constitution which requires that legislation be interpreted in a manner that promotes the spirit, purport and objects of the Bill of Rights; and (d) advances the purpose of the Recognition Act, which is to recognize customary marriages and protect the rights of women in such marriages, not to invalidate them.

Ndita AJA observed that the divergent views in academic literature and case law on this issue demonstrated the need for clarification. The court noted that invalidating the second marriage would have harsh consequences extending to children born of such marriages, who would be rendered illegitimate. Ponnan JA in his concurring judgment observed that even non-compliance with the requirements for validity designated in section 3 of the Act does not automatically result in nullity (for example, where a marriage involves minors without necessary consent, section 24A of the Marriage Act provides for possible dissolution rather than automatic nullity). The court commented that a rule that punishes a second wife in good faith for her husband's failure to comply with the law cannot be fair, particularly when the affected class of women is least likely to have access to the knowledge and resources required to ensure compliance with section 7(6). The court noted that concerning costs, the rule established in Biowatch Trust v Registrar, Genetic Resources applies where litigation seeking to vindicate constitutional rights is not frivolous or vexatious - the losing party should not be mulcted in costs.

This is a landmark judgment in South African customary law as it definitively clarifies that section 7(6) of the Recognition of Customary Marriages Act does not invalidate a subsequent polygynous customary marriage entered into without court approval of a written contract regulating matrimonial property. The judgment affirms that the purpose of the Recognition Act is to recognize and protect customary marriages, including polygynous marriages, and to advance the constitutional rights to equality and dignity of all women in such marriages. The judgment establishes that non-compliance with section 7(6) affects only the proprietary consequences of the marriage (rendering it out of community of property) but does not affect its validity. This interpretation protects vulnerable women in second or subsequent polygynous marriages from being rendered unmarried due to their husband's failure to comply with section 7(6), which would have devastating social and legal consequences for them and their children. The judgment demonstrates the application of constitutional values in interpreting legislation affecting customary law and emphasizes that courts must interpret legislation in a manner that promotes the spirit, purport and objects of the Bill of Rights.