INTRODUCTION
The Constitution of the Republic of South Africa, 1996 (the Constitution) recognizes customary law as valid law (subject to the Constitution)Footnote 1 and also envisages that legislation will be enacted to recognize “marriages concluded under any tradition or a system of religious, personal or family law”.Footnote 2 The envisaged legislation for the recognition of a traditional marriage is the Recognition of Customary Marriages Act (the Recognition Act), which came into force on 15 November 2000.Footnote 3 This act defines a customary marriage as “a marriage concluded in accordance with customary law”.Footnote 4 Customary law is defined as “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which forms part of the culture of those peoples”.Footnote 5 The Recognition Act recognizes all forms of customary marriages whether they were concluded before or after the act came into force, whether they are monogamous or polygamous.Footnote 6
This article revisits the Recognition Act in relation to polygamous marriages and the requirement for the consent of the first wife to her husband's subsequent marriage. This is in light of the case of Mayelane v Ngwenyama (Mayelane), dealing with the same issue and that was decided by three different courts.Footnote 7 The Constitutional Court (the Court) held that the consent of the first wife in a polygamous marriage is a requirement for a subsequent marriage of her husband to be valid, even though the Recognition Act is silent on the issue. This significant development in South African law warrants academic examination. This article argues that this decision reinforces the equality of spouses in a polygamous marriage and customary marriages in general, as envisaged by the Recognition Act and as the Constitution demands. It also deals briefly with the requirement in section 7(6) of the Recognition Act that the husband must apply to the court to approve a written contract that will regulate the future matrimonial property system of his marriages. It argues that the absence of consequences for the husband's failure to apply to the court renders section 7(6) of the Recognition Act superfluous. The article suggests that the legislature should revisit this provision and either repeal it or expressly provide consequences for a failure to comply with section 7(6).
POLYGAMOUS MARRIAGES UNDER THE RECOGNITION ACT AND THE CONSENT OF THE FIRST WIFE TO A SUBSEQUENT MARRIAGE
While the Recognition Act recognizes all marriages entered into before and after it became operational,Footnote 8 its requirements for a valid customary marriage only apply to marriages entered into after it came into force.Footnote 9 The requirements are as follows: “(a) the prospective spouses – (i) must both be above the age of 18 years; and (ii) must both consent to be married to each other under customary law; and (b) the marriage must be negotiated and entered into or celebrated in accordance with customary law.”Footnote 10
These requirements make no distinction between monogamous and polygamous marriages. It is also clear that this provision does not specify the first wife's consent to her husband's subsequent marriage as a requirement for polygamous marriages. However, the requirements listed in section 3(1)(a) of the Recognition Act are not exhaustive. Section 3(1)(b) refers courts to customary law for the determination of other possible requirements. This exercise requires courts to determine the content of customary law. The Law of Evidence Amendment Act enjoins courts to “take judicial notice … of indigenous law in so far as such law can be ascertained readily and with sufficient certainty…”.Footnote 11 Courts are also are expected to call for evidence, when the customary law principle is not readily available.Footnote 12 Such evidence may include calling expert witnesses on customary law in order to ascertain whether the consent of the first wife is a requirement for a valid second marriage. The Court has recently made it clear that “in the end, it is a function of the court to decide what the content of customary law is, as a matter of law not fact. It does not depend on rules of evidence”.Footnote 13 Himonga and Pope explain the Court's statement to mean that “the ascertainment process requires a court to determine, as a matter of law, whether the alleged rule tendered in evidence is indeed law, as defined by the community whose customary law is at issue”.Footnote 14 This makes sense, as the Court called for further evidence to determine whether the consent of the first wife is a requirement for a valid subsequent polygamous marriage.
A true customary law principle is not always easy to ascertain, because customary law is the least developed area of law in South Africa compared to the common law.Footnote 15 This is due to a failure by colonial and apartheid regimes to recognize customary law fully. This has led to three different forms of customary law, as explained by Ngcobo J (as he then was) in Bhe v Magistrate, Khayelitsha: “(a) that is practiced in the community; (b) that found in statutes, case law or textbooks on indigenous law (official); and (c) academic law that is used for teaching purposes”.Footnote 16 In this light, the Court in Alexkor v Richtersveld cautioned that:
“In applying indigenous law, it is important to bear in mind that, unlike common law, indigenous law is not written. It is a system of law that was known to the community, practised and passed on from generation to generation. It is a system of law that has its own values and norms. Throughout its history it has evolved and developed to meet the changing needs of the community. And it will continue to evolve within the context of its values and norms consistently with the Constitution.”
Without attempting to be exhaustive, we would add that indigenous law may be established by reference to writers on indigenous law and other authorities and sources, and may include the evidence of witnesses if necessary. However, caution must be exercised when dealing with textbooks and old authorities because of the tendency to view indigenous law through the prism of legal conceptions that are foreign to it. In the course of establishing indigenous law, courts may also be confronted with conflicting views on what indigenous law on a subject provides.”Footnote 17
The courts’ inability to distinguish between these forms of customary law further complicates the development of customary law. Section 39(2) of the Constitution requires that, when a court embarks on the adaptation of customary law, it must promote the spirit, purport and objects of the Bill of Rights.Footnote 18 If a court finds that a current rule of customary law is not compatible with the Bill of Rights, then it is required to develop that rule in such a way that it is compatible.Footnote 19 The Court has also made it clear that courts do not have discretion to develop the common law or customary law, but that they have an obligation to do so.Footnote 20 Thus, in Gumede,Footnote 21 Moseneke DCJ listed a number of important constitutional purposes that are served by developing customary law:
“Firstly, this process would ensure that customary law, like statutory law or the common law, is brought into harmony with our supreme law and its values, and brought in line with international human rights standards. Secondly, the adaptation would salvage and free customary law from its stunted and deprived past. And lastly, it would fulfil and reaffirm the historically plural character of our legal system, which now sits under the umbrella of one controlling law - the Constitution.”Footnote 22
However, there are instances where it would be impossible to develop customary law to be in line with the Bill of Rights and, in these cases, courts will be forced to deem unconstitutional and invalid any customary law principle that is inconsistent with the provisions of the Bill of Rights.Footnote 23 Further, courts may refuse to develop common law or customary law if such an exercise would encroach on the function of the legislature.Footnote 24 As stated above, the Recognition Act does not expressly specify the consent of the first wife as one of the requirements for a valid polygamous marriage. The next step is to look at what the three courts decided in their respective judgments in Mayelane.
THE MAYELANE JUDGMENTS ON THE CONSENT OF THE FIRST WIFE TO HER HUSBAND'S SUBSEQUENT MARRIAGE
This case was heard at the High Court and was appealed at both the Supreme Court (SCA) and the Court.Footnote 25 The issue before the High Court and the SCA in Mayelane was whether or not failure to take a contract for a further marriage by the husband rendered the subsequent marriage invalid.Footnote 26 This requirement is found in the provisions of the Recognition Act, which regulate the proprietary and contractual consequences of customary marriages.Footnote 27 In this regard, section 7(6) of the act states that “[a] husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages”. Section 7(8) further requires that “all persons having a sufficient interest in the matter and in particular the applicant's existing spouse or spouses and his prospective spouse” be joined in the proceedings instituted under section 7(6). However, the Recognition Act is silent on the consequences of not complying with these provisions.
The facts in Mayelane were as follows.Footnote 28 Two women claimed to be legally married to the deceased husband under the customary law of marriage. The first applicant, Mayelane argued that she had been married to her deceased husband since 1984,Footnote 29 while the first respondent, Ngwenyama claimed that she had been married to the deceased since 2008.Footnote 30 Neither marriage was registered under the Recognition Act.Footnote 31 The deceased died a year after the second marriage took place. The applicant was not aware of her husband's second marriage to the respondent.Footnote 32 The dispute arose when the second respondent (the minister of home affairs) refused the applicants” request to register the marriage after the deceased's death due to the competing claims.Footnote 33 It also appeared that the deceased did not obtain the required court approval of the contract to regulate the future matrimonial system of the marriages under the Recognition Act.Footnote 34 The dispute centred on the validity of the second marriage in the absence of a court order in respect of section 7(6) of the Recognition Act. The first applicant argued that the first respondent's marriage to the deceased was null and void since the husband had failed to comply with section 7(6) of the Recognition Act.Footnote 35 On the other hand, the first respondent claimed that her marriage to the deceased was valid because it was negotiated and celebrated in accordance with customary law.Footnote 36
The judgment of the High Court
The High Court did not investigate whether all the requirements for a valid second marriage were present. Instead, it held that the absence of a contract to regulate the future matrimonial system of subsequent marriages rendered the marriage between the first respondent and the deceased void.Footnote 37 The High Court reasoned that, if the mandatory language could be disregarded, that would render section 7(6) superfluous.Footnote 38 It was of the view that the provisions of section 7(6) were aimed at protecting both the existing and intended spouses as they have a vital interest in future marriages.Footnote 39 However, in its analysis, the court found that failure to obtain the court's approval of a contract regulating future matrimonial systems grossly infringed the existing spouse's fundamental rights,Footnote 40 especially when the subsequent marriage was entered into without her knowledge and acquiescence.Footnote 41 The court found that the intended spouse is entitled to be fully informed of her husband's existing marriages and the full financial and emotional consequences prior to the conclusion of her marriage.Footnote 42 Subsequently, the High Court held that the marriage between the first respondent and the deceased was null and void. The first respondent appealed to the SCA against the judgment and court order.
The judgment of the SCA
The issue before the SCA was whether the husband's failure to obtain the court approved contract under section 7(6) of the Recognition Act invalidated an otherwise valid customary marriage.Footnote 43 The SCA held that the main purpose of section 7(6) is to determine and regulate proprietary consequences and that it does not seek to invalidate an otherwise valid polygamous customary marriage.Footnote 44 It made it clear that the requirements in section 7(6) are not related to the requirements for a valid customary marriage.Footnote 45 The SCA found that the second marriage was not null and void and ordered that the second marriage be registered. The SCA further held that the purpose of section 7(6) must be determined in the light of the legislative scheme which guided its promulgation.Footnote 46 It found that at the heart of the Recognition Act lies the intention to advance the rights of women married according to customary law, in order that they acquire rights to matrimonial property they did not have before the enactment of the Recognition Act.Footnote 47 The SCA acknowledged that there was no sanction for the failure to comply with the provisions of section 7(6) and, as a result, rejected the conclusion that this provision is intended solely for the protection of the first wife.Footnote 48 It reasoned that to uphold the interpretation of section 7(6) adopted by the High Court would seriously undermine “the very equality that the Recognition Act seeks to uphold”.Footnote 49
The author agrees with the SCA's conclusion that section 7(6) is not related to the requirements provisions in section 3 and therefore cannot be used to invalidate an otherwise valid marriage. However, he disagrees with the approach taken by the SCA to reach this conclusion. The author believes that the SCA should have adopted a different approach, involving a two pronged test. First, the SCA (and the High Court) should have enquired into the validity of the second marriage instead of assuming validity. In this regard, if the requirements for a valid polygamous marriage are fulfilled, the subsequent marriage should be deemed valid, after which the question of compliance with the proprietary requirements in section 7(6) would follow. Secondly, if the requirements for a valid polygamous marriage are not fulfilled, then there would be no need for a court to consider section 7(6), because the section applies on the assumption that the subsequent polygamous marriage is valid. On appeal, the Court followed (albeit not explicitly) an approach resembling this two pronged test.Footnote 50
The judgment of the Court
The issue before the Court was whether the consent of the first wife is necessary for the validity of her husband's subsequent customary marriage. The majority judgmentFootnote 51 held that the consent by the first wife can arise in one of three ways: as an express stipulation in the Recognition Act; as a rule of Xitsonga customary law; or as a requirement of the Constitution.Footnote 52 The majority, however, found that none of the mentioned sources prescribe consent.Footnote 53 In order to ascertain the content of customary law, the Court directed the parties “to provide further representations on Xitsonga customary law in this regard”.Footnote 54 The Court acknowledged that the first wife would be unable to consider or protect her own position where subsequent customary marriages are entered into without her knowledge or consent. If this were to happen, this would mean that the first wife would be unable to make “an informed decision on her personal life, her sexual or reproductive health, or on the possibly adverse proprietary consequences of a subsequent marriage”.Footnote 55 Further, the Court acknowledged that “any notion of the first wife's equality with the husband would be completely undermined if he were able to introduce a new marriage partner to their domestic life without her consent”.Footnote 56 It emphasized that “respect for human dignity requires that the husband be obliged to seek her consent and that she be entitled to engage in the cultural and family processes regarding undertaking of a second marriage”.Footnote 57
Most importantly, the Court held that, 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.Footnote 58 It reasoned that, if the first wife is not required to give consent, it would “mean that under the Constitution and section 6 of the Recognition Act the equal status of a husband and a wife in a customary marriage would be disturbed if the one may, by law, have more rights than the other”.Footnote 59 It concluded that, where the first wife does not give consent, the subsequent marriage would be invalid for non-compliance with the Constitution.Footnote 60 The Court is to be commended for this decision which confirms that wives are equal to their husbands, and that they can make decisions with regard to their marriage.
EQUAL STATUS OF SPOUSES IN A POLYGAMOUS CUSTOMARY MARRIAGE
The fact that the husband can take a subsequent wife without the knowledge of his first wife raises concerns about her status being equal to that of her husband. The first wife in Mayelane was never consulted, nor was her consent sought when the deceased decided to take the second wife. In fact she did not even know that the second marriage existed until she wanted to register her own marriage. Further, the absence of a requirement for the first wife to consent to her husband's subsequent marriage in the Recognition Act raises the same concerns. Customary law is historically discriminatory in nature, particularly when it comes to women, and it is imperative for courts to take this into account when dealing with customary law cases.Footnote 61 For example, in cases of polygamy, only men are allowed to take as many wives as they wish, while women are not;Footnote 62 women used to be treated as minors under their husband's marital power;Footnote 63 and women (and girl children) were not expected to be heirs when their fathers died.Footnote 64 There was no equality between men and women. Fortunately, this has changed.
One of the objectives of the Recognition Act is “to provide for the equal status and capacity of spouses in customary law”.Footnote 65 Indeed, section 6 provides for the equality of the wife to her husband. The Court in Mayelane identified “[f]our things to be noted from the provisions of section 6 of the Recognition Act”:
“The first is that the section affords ‘full status and capacity’ to a wife ‘in a customary marriage’. After the commencement of the Recognition Act that meant a customary marriage based on the consent of both spouses to the marriage. The second is that the wife's full capacity stems from ‘the basis of equality with her husband’. The third is that the basis of equality is subject only to ‘the matrimonial property system governing the marriage’, a system which would either have been consented to by the wife or would have been in community of property and of profit and loss between the spouses by virtue of the law. The fourth is that the full status and capacity of a wife is not restricted by the wording of the section.”Footnote 66
This provision reinforces the right to equality which is guaranteed in the Constitution.Footnote 67 The Constitution requires everyone to be treated equally by law, and entitles everyone to “the right to equal protection and benefit of the law” irrespective of their background.Footnote 68 The right to equality is important in the South African context and the Court correctly held that “the guarantee of equality lies at the very heart of the Constitution. It permeates and defines the very ethos upon which the Constitution is premised”.Footnote 69
The Constitution also prohibits any form of unfair discrimination, including regarding gender and sex.Footnote 70 If discrimination is on a listed ground, such as gender in this case, it is considered to be unfair unless proven otherwise.Footnote 71 The view taken in this article is not based on the equality or competing interests of wives in a polygamous marriage, but on the equality of the first wife to her husband before the subsequent marriage takes place. It may well be that the second “wife” was unaware when she entered into a customary marriage with the husband; however the focus here is on the relationship between the husband and the first wife before the existence of the second “wife”.Footnote 72 Further, this article rejects the statement by Himonga and Pope, that the fact that the Recognition Act recognizes polygamous marriages assumes that a woman who married under customary law “inevitably and voluntarily places herself under the ‘legal risk’ of her husband marrying other women”,Footnote 73 as this statement assumes that every woman who enters into a customary marriage is oblivious to the difficulties faced by women in this group and that they all lack capacity to convince their husbands otherwise. Further, a counterargument is that the Recognition Act also recognizes monogamous marriages. That is why the author argues that failure to take into consideration the first wife's consent to her husband's subsequent marriage impacts on her equal status as contemplated in the Recognition Act and her right to equality in general. Langa DCJ (as he then was), writing for the majority in Bhe on the plight of women under customary (inheritance) law, confirmed that:
“The exclusion of women from inheritance on the grounds of gender is a clear violation of section 9(3) of the Constitution. It is a form of discrimination that entrenches past patterns of disadvantage among a vulnerable group, exacerbated by old notions of patriarchy and male domination incompatible with the guarantee of equality under this constitutional order.”
The principle of primogeniture also violates the right of women to human dignity as guaranteed in section 10 of the Constitution as, in one sense, it implies that women are not fit or competent to own and administer property. Its effect is also to subject these women to a status of perpetual minority, placing them automatically under the control of male heirs, simply by virtue of their sex and gender. Their dignity is further affronted by the fact that as women, they are also excluded from intestate succession and denied the right, which other members of the population have, to be holders of, and to control property.”Footnote 74
The total disregard for the first wife's participation in the decisions taken in her marriage is equal to treating her like a perpetual minor with no legal capacity to make decisions regarding her own marriage. Section 6 of the Recognition Act will be meaningless if the first wife is not treated as her husband's equal. That is why the first wife's consent is important for the validity of her husband's subsequent marriage on the basis of her equal status and her right to equality guaranteed in the Bill of Rights. The Court confirmed this in Mayelane.
SO, WHAT IS THE PURPOSE OF SECTION 7(6) OF THE RECOGNITION ACT?
There is no doubt that polygamy is widely practised in South Africa. In fact, South Africa's president, Jacob Zuma is a well-known proud polygamist and he makes no apology for it.Footnote 75 Given this practice, it is important for courts to clarify what can be seen as an uncertainty in the law in relation to the implications of section 7(6) of the Recognition Act for polygamous marriages. As mentioned earlier, the High Court ruled that failure to comply with section 7(6) of the Recognition Act renders a marriage invalid. The SCA correctly undermined this ruling and held that section 7(6) of the Recognition Act has nothing to do with the validity of a customary marriage.Footnote 76 However, what remains unclear is what will happen if a husband fails to comply with section 7(6) of the Recognition Act. What will be the proprietary consequences of the polygamous marriages?
Academic writers differ in their interpretation of section 7(6).Footnote 77 Some argue that this provision is not a requirement for the validity of a subsequent polygamous marriage and therefore non-compliance with the provision should not render such a marriage invalid.Footnote 78 These writers also correctly argue that this provision is meant for the protection of both existing and future spouses in a polygamous marriage and therefore the invalidation of a second marriage will be to the detriment of the second wife. The exclusion of a second “wife” from protection will in turn result in the re-introduction of a discarded wife.Footnote 79 Other writers argue that section 7(6) is peremptory and will be superfluous if it is not made a requirement for a valid second marriage.Footnote 80 Some of these academics refer to section 2(4) of the Recognition Act, which requires that all polygamous marriages that commenced after the enactment of the act comply with all of the act's provisions. They therefore argue that section 7(6) imposes an additional requirement for polygamous marriages, as well as the general requirements that apply to all customary marriages entered into after the commencement of the act.Footnote 81
The difficulties brought about by this provision are well-articulated by Professor Himonga, where she writes:
“[The section 7] procedure involves the courts and bureaucratic red tape. This procedure may well deter people from entering into polygamous marriages in the first place and thereby protect the property interests, at least, of the existing wife, but it is not difficult to see how impractical and unaffordable it makes the new law for most people. For example, every time a man marries a new wife, he and his wives, who have to be joined to the proceedings, must go through the complex and expensive high court proceedings or family court, as the case may be, to process their matrimonial property contract applications, and the consequent transportation costs. And whether or not many people are likely to know or understand these highly complicated legal procedures is another matter. Should this not be the case, however, people will simply carry on marrying as they have always done as though the Act did not exist. Thus, while the Act represents theoretical victories for women in marriage, it may mean little or nothing to their lived experience.”Footnote 82
Surely this is not what the legislature contemplated when enacting this provision. However, in its current form, section 7(6) is unworkable and it is time the legislature revisits this provision.Footnote 83 The author's suggestion to the legislature is two-fold. First, the legislature must obligate both the existing spouses (the husband and the wife) and the prospective wife to take the contract to the court, as the High Court has correctly stated that the aim of the provision is to protect both the existing and prospective spouses.Footnote 84 After all, the Court in Mayelane v Ngwenyama made it clear that the husband cannot take the second wife without the consent of the first wife; the assumption is therefore that, before the husband takes the second wife, the issue of the division of the matrimonial property will be discussed among all the spouses. In this regard, Heaton correctly suggests that “a complete separation of property seems to be the only viable option … [because it] would not cause many practical difficulties, as the husband and each of the wives would simply retain their own estates”.Footnote 85 Secondly, the legislature should simply repeal the provision because the difficulties mentioned by Professor Himonga may be hard to overcome.
CONCLUSION
There is no doubt that the Recognition Act is an important piece of legislation that plays a huge role in the recognition of customary marriages and the equality of spouses. However, Mayelane shows that, despite recognizing the legality of polygamous marriages, the legislature did not apply its mind when it regulated these marriages. This is evidenced by the fact that there are no specific requirements tailored for polygamous marriages. The Court should be commended for holding that one of the requirements for polygamous marriages is the consent of the first wife to her husband's subsequent marriages on the basis of equality. Further, the enactment of section 7(6), requiring a court approved contract to change the matrimonial system, may be rendered superfluous because of the absence of consequences for failure to comply. While the role of courts should not be understated when it comes to interpreting the provisions of the Recognition Act, there is little that they can do when the legislature does not provide guidance regarding the consequences. The legislature should therefore revisit the Recognition Act in order to rectify these deficiencies.
