Mayelane v Ngwenyama and Another

The applicant, Ms Mayelane, alleged she concluded a valid customary marriage with Mr Hlengani Dyson Moyana on 1 January 1984. The first respondent, 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 120 of 1998 (Recognition Act), each disputing the validity of the other's marriage. Ms Mayelane applied to the High Court for an order declaring her marriage valid and Ms Ngwenyama's marriage null and void on the basis that she (the first wife) had not consented to it, as required under Xitsonga customary law. The High Court granted both orders. The Supreme Court of Appeal confirmed the validity of Ms Mayelane's marriage but overturned the order invalidating Ms Ngwenyama's marriage. Ms Mayelane then sought leave to appeal to the Constitutional Court.

• Whether a cross-appeal was necessary in the Supreme Court of Appeal for the consent issue to be determined.
• Whether the Recognition of Customary Marriages Act directly prescribes the first wife's consent as a requirement for the validity of a subsequent customary marriage.
• Whether living Xitsonga customary law requires the consent of the first wife for the validity of her husband's subsequent customary marriage.
• If neither the Recognition Act nor Xitsonga customary law creates this requirement, whether the Constitution requires the law to be developed.
• Whether the development of customary law should apply prospectively or retrospectively.

1. Leave to appeal granted. 2. Applicant's and first amicus' applications for condonation granted. 3. Appeal upheld. 4. Paragraph 1(a) of the Supreme Court of Appeal's 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.' 5. Xitsonga customary law is 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. 6. The order in paragraph 5 operates prospectively. 7. The Registrar to send a copy of the judgment and summary to Houses of Traditional Leaders and the Minister for Home Affairs for distribution.

1. In terms of section 3(1)(b) of the Recognition of Customary Marriages Act, read with the Constitution, a valid customary marriage must comply not only with living customary law but also with the constitutional values of equality and human dignity. 2. The Recognition Act is premised on a customary marriage that is in accordance with the dignity and equality demands of the Constitution. 3. 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, because the first wife's rights to equality (section 9) and human dignity (section 10) would be completely undermined if her husband could introduce a new marriage partner to their domestic life without her consent. 4. A husband's failure to obtain the first wife's consent renders the subsequent customary marriage invalid for non-compliance with section 3(1)(b) of the Recognition Act, read with the Constitution.

The Court observed that the rule requiring the first wife to be informed (as opposed to consent) was not established to apply to the community of Ms Mayelane and her late husband; rather, there was overwhelming and undisputed evidence that Xitsonga custom followed by that community required consent. The Court also noted that polygynous marriages differentiate between men and women, but their validity as a legal institution was not challenged. Zondo J opined that the Constitutional Court should not have called for additional evidence as it sat as a court of appeal, and that calling for new evidence mero motu in motion proceedings with disputed facts was inappropriate. Jafta J emphasised that an amicus cannot raise an issue which the parties themselves are not permitted to raise, and that special circumstances must exist for this Court to develop law as a court of first and last instance.

This is a landmark Constitutional Court decision that clarifies the relationship between customary law, the Recognition of Customary Marriages Act, and the Constitution. It establishes that the constitutional values of equality and dignity require the development of customary law to include a requirement that a first wife must consent to her husband's subsequent polygynous marriages. The case sets an important precedent for how courts should ascertain the content of living customary law and develop it in line with the Bill of Rights, while respecting customary law's distinctiveness. It also confirms that the Recognition Act must be interpreted to promote substantive gender equality within customary marriages and that spouses in customary marriages have equal status and capacity, including in relation to the personal consequences of marriage.