Mayelane v Ngwenyama and Another (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013)

Mayelane v Ngwenyama and Another (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013)

The Constitutional Court held that, under Xitsonga customary law and the Recognition of Customary Marriages Act, the consent of the first wife is necessary for the validity of a subsequent customary marriage. The Court found that neither the Recognition Act nor Xitsonga custom, as previously interpreted, expressly required such consent, but constitutional principles of equality and dignity demand its inclusion. The Court developed Xitsonga customary law to require the first wife's consent for the validity of further customary marriages, aligning customary law with constitutional values. The order operates prospectively to avoid unfair prejudice to existing marriages. On the facts, the...

Citation
[2013] ZACC 14
Parties
Applicant: Modjadji Florah Mayelane; Respondent: Mphephu Maria Ngwenyama; Respondent: Minister for Home Affairs
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
30 May 2013
Case Number
CCT 57/12
Procedural Posture
Leave to Appeal / Constitutional Court Judgment on Appeal From Supreme Court of Appeal
Outcome
Appeal upheld. The Supreme Court of Appeal's order declaring the second marriage valid is set aside. The second marriage is declared null and void. Xitsonga customary law is developed to require the first wife's consent for validity of subsequent customary marriages, prospectively.
Judges
Froneman, Khampepe, Skweyiya, Moseneke, Cameron, Yacoob, Zondo, Jafta, Mogoeng, Nkabinde
Legal Topics
Recognition of Customary Marriages Act, Customary Law Development, Equality and Dignity, Validity of Polygynous Marriages, Consent Requirement, Gender Discrimination
Constitutional Law Family and Children Recognition of Customary Marriages Act Customary Law Development Equality and Dignity Validity of Polygynous Marriages Consent Requirement Gender Discrimination

Case Brief

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Parties

Modjadji Florah Mayelane

Applicant

Mphephu Maria Ngwenyama

Respondent

Minister for Home Affairs

Respondent

Procedural Posture

Leave to Appeal / Constitutional Court Judgment on Appeal From Supreme Court of Appeal

Legal Issues

  1. 1 Should the Supreme Court of Appeal have determined the consent issue regarding the validity of the second marriage.
  2. 2 Is the consent of the first wife necessary for the validity of her husband's subsequent customary marriage under Xitsonga law and the Recognition Act.
  3. 3 Does the Constitution require the development of Xitsonga customary law to include a consent requirement for subsequent marriages.

Ratio Decidendi

The Constitutional Court held that, under Xitsonga customary law and the Recognition of Customary Marriages Act, the consent of the first wife is necessary for the validity of a subsequent customary marriage. The Court found that neither the Recognition Act nor Xitsonga custom, as previously interpreted, expressly required such consent, but constitutional principles of equality and dignity demand its inclusion. The Court developed Xitsonga customary law to require the first wife's consent for the validity of further customary marriages, aligning customary law with constitutional values. The order operates prospectively to avoid unfair prejudice to existing marriages. On the facts, the...

Court Disposition

Appeal upheld. The Supreme Court of Appeal's order declaring the second marriage valid is set aside. The second marriage is declared null and void. Xitsonga customary law is developed to require the first wife's consent for validity of subsequent customary marriages, prospectively.

Orders

  • Leave to appeal is granted.
  • The applicant’s and first amicus applications for condonation are granted.