The Constitutional Court of South Africa has ruled that, in polygynous marriages (polygamy in which a man has more than one wife) under customary law, the first wife’s permission must be obtained before a second marriage can be entered into. The court drew on the Constitutional requirement that customary law be developed in line with Constitutional principles. As failure to obtain the first wife’s consent would breach the Constitutional principles of equality and inherent dignity of the person, such a requirement could legitimately be imposed upon customary law in South Africa.
Ms Mayelane (the applicant) and Mr Moyana, both of the Xitsonga people, married in 1984 in accordance with Xitsonga customary law. In 2008, Ms Ngwenyama (first respondent) also purported to marry Mr Moyana according to Xitsonga customary law. In 2009, Mr Moyana passed away. Ms Mayelane brought a claim stating that Ms Ngenyama’s marriage was invalid as, among other things, she had not consented to the second marriage and that, under either the Recognition of Customary Marriages Act 120 of 1998 (the Act), the Constitution of South Africa or customary Xitsonga law, consent of the first wife is required for a second marriage to be entered into.
Ms Ngwenyama claimed that consent was not required under the Act . Ms Ngwenyama also argued that there is insufficient information on record to make definitive findings on whether consent is a requirement under customary law for the validity of subsequent marriages and what the consequences would be if consent is not obtained.
In determining whether customary law required consent of the first wife, the court first had to establish the content of the customary norms. This requires a different approach to that of common or legislative laws, requiring consideration of the traditions of the community, the right of communities that observe customary laws to develop those laws and balancing of flexibility and development against the need for legal certainty. The court takes a more inquisitorial route with regards to the content of customary law: the courts must takes steps to satisfy themselves as to the content of customary laws, including possible customary meanings for certain phrases such as “consent”, rather than imposing common law interpretations.
The Act provides for the recognition and regulation of customary marriages in South Africa. It recognises traditional customary requirements and ceremony, while at the same time imposing certain requirements such as minimum ages, consent of both parties and providing equality between men and women in a marriage.
Section 211(3) of the Constitution states that “courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. Section 39(2) provides that when developing customary law a court “must promote the spirit, purpose and objects of the Bill or Rights”. Specifically, sections 9 and 10 guarantee the rights to equality and human dignity. The court also noted that development of customary law in congruence with the Constitution must be done in a participatory manner by those who live the custom, recognising that the values of the Constitution may have different ways of being recognised by different groups.
The court stated that a requirement for consent could arise in one of three ways; as an express stipulation of the Act, as a rule of Xitsonga customary law or as a requirement of the Constitution.
The court held that the Act makes no mention of the first wife’s consent being a requirement. The court declined to interpret the Act as imposing further validity requirements other than those expressly laid out as it would undermine the scheme of the Act which specifically allows for the recognition of customary requirements.
In regards to customary Xitsonga law, the court found that while there was contradictory evidence as to whether a first wife could refuse consent for a second marriage.
The court then, although this was not strictly required for the current case, considered whether the rights to equality and human dignity amount to a requirement that customary law be developed to require the consent of the first wife before a subsequent customary marriage can be validly entered into.
The court took note of the fact that if a woman is unable to control whether or not a second wife enters into her family, she is rendered incapable of considering or protecting her own position. She cannot take an informed decision on her personal life, her sexual or reproductive health or the proprietary consequences of a subsequent marriage, completely undermining any notion of a wife’s equality with her husband. In addition, the right to dignity includes the right-bearers entitlement to make choices and decisions about her or his life: “Autonomy and control over one’s personal circumstances is a fundamental aspect of human dignity…a wife has no effective autonomy over her family life if her husband is entitled to take a second wife without her consent.” The court went on to say, “given that marriage is a highly personal and private contract, it would be a blatant intrusion on the dignity of one partner to introduce a new member to that union without obtaining that partner’s consent”.
The court therefore concluded that customary law (not merely Xitsonga law) must be developed to include, to the extent that it does not yet do so, a requirement that the consent of the first wife be obtained in order for a second customary marriage to be valid.
Three of the dissenting judges held that while it had been established that in Xitsonga customary law consent of the first wife is required, it was outside the scope of the court to then develop customary law such that consent is required even in communities where that was not formerly the practice. This was not a question put before the court and was therefore not properly pleaded, nor was evidence put forward.
As noted in the judgment itself, the matter raises fundamental issues regarding the relationship between customary law, legislation dealing specifically with customary law and the human rights enshrined in the Constitution. It extends the jurisprudence relating to the development of customary law in line with Constitutional requirements.
Indeed, this is the first time the court had actually been involved in an incremental development of customary law as contemplated in section 39(2) of the Constitution. As the court itself recognised, customary law developed in communities that favoured the interests of men and often to the grave disadvantage of women and children. The court noted that it must afford customary law the respect it deserves but must also ensure customary law develops in accordance with the normative framework of the Constitution.
Human rights jurisprudence often struggles with the tension between respect for traditional cultural practices and the obligations imposed by international human rights. The canon of human rights treaties at times specifically calls for the eradication of traditional practices, particularly when harmful to young girls, while at other times calling for the protection of cultural values, ceremonies and religion. The South African Constitutional requirement that customary law be developed in line with constitutional principles is an interesting approach to reconciling customary and human rights law.
It should be noted that the court decision does not comment on the validity of polygynous marriages as a legal institution, despite their inherent inequality (men may marry more than once, women may not). The court specifically noted that polygynous marriages “differentiate between men and women” in this way but that their validity was not challenged by either party and so the court “must work within a framework that assumes its existence and validity”. The court thus left open the possibility for a constitutional challenge to the validity of polygyny as inherently discriminatory on the basis of gender and therefore unconstitutional.
This decision is available online at: http://www.constitutionalcourt.org.za/Archimages/20904.PDF
Emily Christie is a lawyer seconded from DLA Piper to the Human Rights Law Centre