Ngwenyama v Mayelane and Another (474/2011) [2012] ZASCA 94; 2012 (4) SA 527 (SCA); 2012 (10) BCLR 1071 (SCA); [2012] 3 All SA 408 (SCA) (1 June 2012)

Ngwenyama v Mayelane and Another (474/2011) [2012] ZASCA 94; 2012 (4) SA 527 (SCA); 2012 (10) BCLR 1071 (SCA); [2012] 3 All SA 408 (SCA) (1 June 2012)

The Supreme Court of Appeal held that s 7(6) of the Recognition of Customary Marriages Act 120 of 1998 is not intended to invalidate subsequent customary marriages for non-compliance. The section regulates proprietary consequences, not the validity of the marriage itself. The requirements for a valid customary marriage are set out in s 3 of the Act, and there is no express provision that non-compliance with s 7(6) results in nullity. The duty to apply for approval of a proprietary contract is placed on the husband, and it would be unjust to penalise the wife for his failure. A purposive and constitutional interpretation, consistent with equality and dignity rights, compels the conclusion...

Citation
[2012] ZASCA 94
Parties
Appellant: M M N; Respondent: M F M; Respondent: Minister of Home Affairs
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 June 2012
Case Number
474/2011
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court
Outcome
Appeal succeeds partially; the order of the court below is set aside and replaced.
Judges
Mthiyane, Ponnan, Ndita
Legal Topics
Customary Marriage, Recognition of Customary Marriages Act, Proprietary Consequences, Polygamy, Statutory Interpretation, Equality Rights
Family and Children Customary Marriage Recognition of Customary Marriages Act Proprietary Consequences Polygamy Statutory Interpretation Equality Rights

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 16 Party arguments 2
Sign in to unlock

Parties

M M N

Appellant

M F M

Respondent

Minister of Home Affairs

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court

Legal Issues

  1. 1 Does failure by a husband to enter into a contract regulating matrimonial property under s 7(6) of the Recognition of Customary Marriages Act render a subsequent customary marriage invalid?
  2. 2 Is s 7(6) of the Act intended to invalidate subsequent customary marriages for non-compliance?
  3. 3 What is the proper interpretation of s 7(6) in light of constitutional equality and dignity rights?

Ratio Decidendi

The Supreme Court of Appeal held that s 7(6) of the Recognition of Customary Marriages Act 120 of 1998 is not intended to invalidate subsequent customary marriages for non-compliance. The section regulates proprietary consequences, not the validity of the marriage itself. The requirements for a valid customary marriage are set out in s 3 of the Act, and there is no express provision that non-compliance with s 7(6) results in nullity. The duty to apply for approval of a proprietary contract is placed on the husband, and it would be unjust to penalise the wife for his failure. A purposive and constitutional interpretation, consistent with equality and dignity rights, compels the conclusion...

Court Disposition

Appeal succeeds partially; the order of the court below is set aside and replaced.

Orders

  • Prayer (a) of the notice of motion (declaring a customary marriage between Hlengani Dyson Moyana and the First Respondent null and void ab initio) is dismissed.
  • Prayer (b) (directing the Second Respondent to register the marriage between the applicant and the deceased Hlengani Dyson Moyana) is granted.