On 30 May 2013 the Constitutional Court decided in Mayelane v Ngwenyama and Minister for Home Affairs[acp footnote]CCT 57/12  ZACC 14 (30 May 2013).[/acp] that under Tsonga customary law, the first wife must consent to her husband taking an additional wife in order for the second marriage to be valid. The Court invalidated the subsequent marriage on the basis that consent from the first wife had not been given. The Court arrived at this decision after, inter alia, applying the constitutional rights of equality and dignity as they relate to the first wife and the husband.
This decision raises several issues concerning marriages and other aspects of customary law that are commented on in detail elsewhere. This article is limited to a reflection on the wider implications of the judgment in respect of two issues. The first is whether the decision applies to all customary law systems in the country. The second is whether the decision balances protection of the competing rights of the first wife and subsequent wives, taking into account legislation governing customary marriages, as well as the realities of its implementation.
The effect of the finding
Does the Court’s decision apply only to Tsonga customary marriages or does it change all customary marriage laws?
Living customary law is not based on precedent. Instead, the practices of the community concerned inform the articulation of the customary law in question. The Constitutional Court has confirmed this proposition in several decisions. Customary laws of different ethnic groups are similar in some respects but different in others. Therefore, a finding about the customary law of one group is generally not applicable to other groups in the same way that the doctrine of precedent applies in common law. In other words, ethnicity is a relevant distinguishing feature in customary law. Application of this doctrine indiscriminately to customary law contributed to the now impugned distortion and ossification of customary law in colonial (and apartheid) South Africa as, well as in other African countries.
A close reading of the judgment suggests that the Court was alive to these issues. In particular, it stated:
It should be borne in mind that customary law is not uniform. A particular custom may have one of various acceptable manifestations of a consent requirement, together with a wealth of custom-based ancillary rules dealing with the effects of not requiring consent, including its proprietary effects, for example, in the law of succession. All factors may be relevant in determining the validity of further customary marriages … (para 51).
In addition to this accommodating approach to the diversity of customary law systems, the Court did not set a minimum requirement of consent (e.g. that the first wife must be informed) or the form of consent required (e.g. express or implicit).
It seems therefore that while the principle of consent applies to all customary law systems (see by implication para 86), each customary law system must still be left to determine the extent of its consent requirements. It also appears that while the constitutional principles of equality and dignity apply to all customary laws, the rules of these laws regulating consent must still be tested against the constitutional principles concerned as their respective nuances may meet these principles differently. Nevertheless, there is a sense in which the judgment applies uniformly to all customary laws: As a result of this decision, it is incumbent upon the adherents of each customary law system to ensure that their principles of consent either meet, or are developed to meet, the constitutional principles of equality and dignity.
Protecting the competing rights of women in polygamous marriages
The contest between women in polygamous marriages is about conjugal rights and access to the material resources of the marriage. Obviously, when the husband is deceased, the contestation is about wives’ access to different resources gained through marriage, including proprietary resources. Bundles of these resources are sometimes referred to as the consequences of marriage. Arguably, access to property is fundamental to protecting dignity. To deprive a wife (and her children) of property amounts to a serious affront to their dignity. The competing claims to these resources inform the assessment of the implications of the Court’s decision for protection of the competing rights of wives.
I submit that the Court was right to hold that consent of the first wife is a requirement for validity of the second marriage. Requiring the first wife’s consent to a further marriage is the most meaningful way to protect her rights to the material and other resources of her marriage. Furthermore, this part of the decision is consistent with the provisions of the Recognition of Customary Marriages Act (RCMA) regarding the equal status of the spouses (s 6) and the rights of the spouses regarding the proprietary consequences of the marriage (s 7).
In my opinion, the shortcoming of the Court’s decision lies in its unconditional or unlimited application of the effect of the lack of consent of the first wife on the validity of the subsequent wife’s marriage. This shortcoming favours the first wife because of an improper balance in the protection of the competing rights of the two or more women. My argument is that in reaching this decision, the Court overlooked two critical factors, consideration of which would have balanced the women’s competing interests more fairly. These are the legislation governing customary marriages and the realities in respect of its operation or implementation.
Furthermore, I argue that, by failing to take these factors into account, the Court ended up punishing the wrong person – the subsequent wife – while exonerating the husband of all responsibility.
The relevant factors
Because they are closely related, the two factors that inherently prejudice the second wife are dealt with together.
The RCMA requires customary marriages to be registered, but it also provides that non-registration does not invalidate the marriage. Furthermore, there seems to be a two-fold reality emerging from the preliminary findings of the country-wide socio-legal research on the operation of the RCMA by the Chair in Customary Law[acp footnote]The Chair in Customary Law is located in the Faculty of Law at the University of Cape Town. It is part of the South African Research Chairs Initiative established in 2006 by the Department of Science and Technology. This is a strategic intervention aimed at, inter alia, increasing scientific research through development of human capacity and generation of knowledge in identified fields. The Chair conducts research, and supervises postgraduate students, on customary law. For more information see www.customarylawchair.uct.ac.za[/acp]. The first is that many customary marriages are not registered. The second is that customary marriages are not dissolved officially by courts as required by the RCMA. Spouses simply go their separate ways, including contracting subsequent marriages, until a crisis requiring the determination of the status of the marriage arises.
The combined effect of these factors is that there is simply no reliable way people can inform themselves about the existence or otherwise of marriages before they enter into a polygamous marriage: (a) Where the first marriage is not registered, a prospective subsequent wife would not know about it, and therefore unlikely to enquire from the existing wife whether she has given her consent. (b) Where the subsequent marriage is not registered, the existing wife would not know about it and cannot warn or put the subsequent wife on notice about the existence of the existing marriage and the absence of consent to the subsequent marriage. (c) The same problems arise where there are no public records, such as court orders, relating to the dissolution of customary marriages. In these circumstances, subsequent wives stand to be severely disadvantaged and prejudiced by the Court’s decision. It seems unfair that the Court left them in the cold in the assessment of their rights in competition with those of the first wife.
The unfairness of the Court’s decision to subsequent wives must also be seen against the fact that the RCMA recognises polygyny. Any woman who marries under customary law, therefore, inherently and voluntarily places herself under the ‘legal’ risk of her husband marrying other women. The first wife under customary law is not exempt or protected from this voluntary risk in the same way as a woman who is married under civil law, which recognises only monogamous marriages. Why, it may be asked, should the subsequent wife be required to bear her risk while the first wife is exonerated from doing the same and is instead placed in the position of the civil-marriage wife? Why should the rights to equality and dignity (as between husband and wife), which the Constitutional Court recognised for the first wife, not be recognised for the subsequent wife? What reasons justify the Court protecting the rights of the monogamous customary wife but not the subsequent wife where both women have placed themselves under the same ‘legal’ risk of a man taking more than one wife?
Furthermore, I submit that the Court’s unconditional finding that lack of consent of the first wife invalidates the subsequent wife’s marriage effectively punishes the wrong person (the subsequent wife) while letting the wrongdoer, the man, free to carry on with his ‘legal’ mischiefs with women other than his first wife (whose only reason for protection seems to be that she is viewed by the Court to sit in a position akin to that of a civil law wife).
In sum, it appears that the Court failed to properly balance the competing rights of the first wife and the subsequent wife in the specific context of the South African legal framework for customary law and the realities of its implementation.
A proper balance, in my view, would have been one where the court placed a condition on the invalidity of the subsequent marriage if the subsequent wife knowingly entered into the marriage without the consent of the first wife, or entered into such a marriage in circumstances in which she would reasonably have known that she was doing so without the consent of the first wife. This is the area of customary law that the court should have developed in this instance in accordance with s 39(2) of the Constitution.