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[2013] ZACC 14
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Mayelane v Ngwenyama and Another (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013)
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CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 57/12
[2013] ZACC 14
In the matter between:
MODJADJI FLORAH MAYELANE
...................................................................
Applicant
and
MPHEPHU MARIA NGWENYAMA
......................................................
First
Respondent
MINISTER FOR HOME AFFAIRS
.....................................................
Second
Respondent
together with
WOMEN’S LEGAL CENTRE TRUST
...............................................
First
Amicus Curiae
COMMISSION FOR GENDER EQUALITY
.................................
Second
Amicus Curiae
RURAL WOMEN’S MOVEMENT
...................................................
Third
Amicus Curiae
Heard on : 20 November 2012
Decided on : 30 May 2013
JUDGMENT
FRONEMAN J, KHAMPEPE J AND
SKWEYIYA J (Moseneke DCJ, Cameron J and Yacoob J concurring):
Introduction
[1] This case raises questions
about the role that the consent of an existing wife (first wife) in a
customary marriage plays in
relation to the validity of her husband’s
subsequent polygynous
1
customary marriages. It also deals with the manner in which the
content of an applicable rule or norm of customary law should be
ascertained and, if necessary, developed in a manner that gives
effect to the Bill of Rights.
[2] These issues were not
central to the disposal of the case in the North Gauteng High Court,
Pretoria (High Court) or on appeal
in the Supreme Court of Appeal. It
is thus necessary, first, to explain how they came to the fore in the
application for leave
to appeal before us.
Facts and litigation history
[3] The main protagonists before
us are the applicant (Ms Mayelane) and the first respondent (Ms
Ngwenyama). The Minister for Home
Affairs is the second respondent.
She played no active part in the proceedings and abides by the
decision of this Court. The Women’s
Legal Centre Trust (first
amicus), the Commission for Gender Equality (second amicus) and the
Rural Women’s Movement (third
amicus) were admitted as friends
of the Court.
[4] Ms Mayelane alleges that she
concluded a valid customary marriage with Hlengani Dyson Moyana (Mr
Moyana) on 1 January 1984.
Ms Ngwenyama alleges that she married Mr
Moyana on 26 January 2008. Mr Moyana passed away on 28 February 2009.
Both Ms Mayelane
and Ms Ngwenyama subsequently sought registration of
their respective marriages under the Recognition of Customary
Marriages Act
2
(Recognition Act). Each disputed the validity of the other’s
marriage. Ms Mayelane then applied to the High Court for an
order
declaring her customary marriage valid and that of Ms Ngwenyama
null and void on the basis that she (Ms Mayelane) had
not consented
to it. The High Court granted both orders. Ms Ngwenyama took the
matter on appeal to the Supreme Court of Appeal.
That Court confirmed
the order declaring Ms Mayelane’s customary marriage valid, but
overturned the order of invalidity in
relation to Ms Ngwenyama’s
customary marriage. It found the latter customary marriage to be
valid as well. Ms Mayelane
now seeks leave to appeal against this
latter part of the Supreme Court of Appeal’s order.
[5] Although Ms Mayelane alleged
in her founding papers in the High Court that Xitsonga customary law
required her consent for the
validity of her husband’s
subsequent customary marriage and that she had never consented to his
marriage to Ms Ngwenyama,
this issue was not considered by
either the High Court or the Supreme Court of Appeal. Both Courts
determined the matter by interpreting
and applying section 7(6) of
the Recognition Act
3
and therefore did not consider it necessary to have regard to
Xitsonga customary law on the issue of consent.
4
[6] The High Court interpreted
section 7(6) as creating an obligatory requirement for the validity
of a subsequent customary marriage
and held that, if the husband
fails to obtain court approval of the written contract regulating the
matrimonial property regime
of the subsequent marriage, that marriage
is void.
5
The Supreme Court of Appeal disagreed and found that the requirements
for validity of customary marriages are to be found in section 3
of the Recognition Act
6
and that the consequences of non-compliance with section 7(6) were
adequately met by treating subsequent customary marriages as
being
marriages out of community of property.
7
In other words, the Supreme Court of Appeal found that section 7(6)
of the Recognition Act does not relate to the validity of customary
marriages, but to the proprietary consequences thereof.
[7] By treating section 7(6) as
a requirement for the validity of subsequent customary marriages, the
High Court found it unnecessary
to deal with the other ground for the
alleged invalidity of Ms Ngwenyama’s customary marriage (that
is, the failure to procure
Ms Mayelane’s consent in relation
thereto). Although the consent issue was argued as an alternative in
the Supreme Court
of Appeal, that Court did not consider it necessary
to deal with the question. The Court reasoned that there was no
cross-appeal
challenging the High Court’s finding “on
its acceptance of the validity of the second customary marriage.”
8
[8] This Court directed the
parties to address in written argument the question of whether a
cross-appeal was necessary to deal
with the consent issue and the
consequences if it was not. If a cross-appeal was not necessary, the
Supreme Court of Appeal should
have determined the consent issue.
[9] In her founding papers in
the High Court Ms Mayelane stated that Xitsonga customary law
requires the consent of the first wife
for the validity of a
husband’s subsequent customary marriages and that she was never
informed nor asked by her husband to
consent, nor provided any
consent, to his alleged customary marriage to Ms Ngwenyama. Ms
Mayelane’s brother-in-law (her
deceased husband’s
brother) corroborated this under oath. Ms Ngwenyama did not deny
these allegations, but sought to establish
the validity of her own
marriage to Mr Moyana by denying that Ms Mayelane was ever married to
him and by stating that ilobolo negotiations
were entered into in
relation to her own marriage.
[10] Ms Mayelane pointed out in
the High Court that the documents to prove the validity of
Ms Ngwenyama’s marriage were
not attached to her affidavit
and that this, coupled with the failure to challenge Ms Mayelane’s
legal assertion regarding
the content of Xitsonga customary law and
her factual assertion regarding her lack of consent to the marriage,
was sufficient evidence
to decide the matter in Ms Mayelane’s
favour.
[11] Ms Ngwenyama and the amici
opposed this approach, mainly on the basis that there was
insufficient evidence to establish the
proper content of the alleged
customary rule. They contended that, from available formal sources in
the legal literature, it is
not clear whether, or to what extent,
consent is a requirement for the validity of a subsequent marriage in
Xitsonga customary
law. In particular, they emphasised that there is
a dearth of information on what the personal and proprietary
consequences of
non-compliance with any requirement of that kind may
be.
Issues
[12] The material issues for
determination are:
a) Should the consent issue have
been determined by the Supreme Court of Appeal
b) Is the consent of a first
wife necessary for the validity of her husband’s subsequent
customary marriage? This entails
considering—
(i) whether the Recognition Act
directly prescribes the first wife’s consent as a requirement
for validity; and
(ii) whether living Xitsonga
custom makes such a prescription.
c) If neither the express
provisions of the Recognition Act nor Xitsonga customary law creates
this requirement, does the Constitution
require the law to be
developed?
Approach
[13] We intend to deal with the
issues in the following manner. The parties’ contentions will
be set out in summary before
dealing briefly with the question
whether leave to appeal should be granted. We conclude that leave
must be granted. The merits
of the appeal are initiated by discussing
whether a cross-appeal was necessary in the Supreme Court of Appeal
in order for the
issue of consent to be considered. We find that it
was not. We then turn to customary law under the Constitution and the
Recognition
Act in general, before dealing with the crucial issue of
consent under both the Recognition Act and Xitsonga customary law. In
the course of doing this we set out the manner in which the content
of Xitsonga customary law was ascertained in this Court. We
conclude
that the Recognition Act is premised on a customary marriage that is
in accordance with the dignity and equality demands
of the
Constitution and that Xitsonga customary law must be developed, to
the extent that it does not yet do so, to include a requirement
that
the consent of the first wife is necessary for the validity of a
subsequent customary marriage. Because this finding might
unfairly
prejudice parties to existing customary marriages, the order will
only have prospective effect. We nevertheless conclude
that
Ms Ngwenyama’s marriage was invalid because Ms Mayelane
was not informed thereof, in contravention of Xitsonga
customary law
as it existed at the time.
The parties and their
contentions
[14] The written and oral
argument of the parties and amici contributed much to the substance
of the judgment, and for that we wish
to express our gratitude to
them. We do not intend to set out their respective contentions in any
detail.
[15] In brief summary the
following can be stated. There was agreement that a cross-appeal by
Ms Mayelane was not necessary in order
for the Supreme Court of
Appeal to have determined the consent issue; that constitutional
matters of importance are raised in this
Court in relation to the
consent issue; and that it would accordingly be in the interests of
justice to grant leave to appeal.
Ms Mayelane argued that the consent
issue could be determined on a proper interpretation of the
Recognition Act, but submitted
that even if the consent issue fell to
be determined according to non-statutory customary law, it could be
decided in her favour
on the record before us. That approach found no
support from any of the other participants in the proceedings. Ms
Ngwenyama and
all three amici contended that there was insufficient
information on record to make definitive findings on whether consent
was
a requirement under customary law for the validity of subsequent
marriages and what the personal and proprietary consequences of
non-compliance in customary law were if consent was indeed required
but not obtained. All agreed that further information on these
aspects was required, but differed on whether the matter should be
referred back to the High Court to obtain the necessary information
or whether this Court should undertake that task. There were also
nuanced differences in the parties’ arguments on the extent
to
which consent should be a requirement for subsequent customary
marriages if it was not already a requirement.
Condonation
[16] There
are three condonation applications before this Court: the applicant’s
late filing of the application for leave
to appeal and the
applicant’s late filing of the record.
9
We discuss each of these in turn. Condonation will
be granted if it is in the interests of justice to do so.
10
The interests of justice must be determined by
reference to all relevant factors, including the nature of the relief
sought, the
extent and cause of the delay, the nature and cause of
any other defect in respect of which condonation is sought, the
effect on
the administration of justice, prejudice and the
reasonableness of the applicant’s explanation for the delay or
defect.
11
[17] This matter raises
fundamental issues regarding the relationship between customary law,
legislation dealing specifically with
customary law and the
Constitution. The outcome of this judgment will affect not only the
parties before us but entire communities
who live according to
Xitsonga custom. Furthermore, this judgment may more broadly affect
the courts’ jurisprudence related
to the development of
customary law. The applicant seeks condonation for the late filing,
by one day, of the application for leave
to appeal and, by 13 days,
of the record. Given the importance of the issues in this matter, the
fairly short period of delay and
the fact that there has been no
prejudice as a result of the late filings, we find it is in the
interests of justice to grant both
of the applicant’s
applications for condonation.
[18] The amici have provided
invaluable submissions throughout the proceedings before this Court.
In particular, the amici’s
submissions in response to this
Court’s request for further information regarding Xitsonga
customary law have been crucial
to the outcome of this case. In
addition, neither of the parties opposes the first amicus’
application for condonation and
the delay of approximately two weeks,
while not insignificant, has been adequately explained by the first
amicus. Accordingly,
it is in the interests of justice to grant the
first amicus’ application for condonation.
Leave to appeal
[19] Leave to appeal is granted
where the dispute raises a constitutional issue and where it is in
the interests of justice to do
so.
12
[20] The present matter clearly
raises constitutional questions insofar as it relates to the
interpretation of legislation envisaged
by the Constitution
13
and the fundamental rights to equality
14
and human dignity.
15
This case also implicates the courts powers and obligations both to
apply customary law
16
and to promote the spirit, purport and objects of the Bill of Rights
when developing customary law.
17
[21] Furthermore the question
whether, in terms of customary law, the consent of the first wife in
a customary marriage is necessary
for the validity of her husband’s
subsequent customary marriage is an important and pressing issue. The
personal and proprietary
consequences for the women involved are
obvious. In addition, the different conclusions reached by the High
Court and the Supreme
Court of Appeal regarding the interpretation of
the Recognition Act indicate that a measure of authoritative
certainty is appropriate
and desirable. The interests of justice
accordingly require this Court to hear this matter.
Merits of the appeal
Is a cross-appeal necessary?
[22] It has long been accepted
in our law that an appeal court may support the order of the court of
first instance on a basis different
from the reasoning of that
court.
18
No cross-appeal by the successful party in that court against any
particular but adverse part of the reasoning of the judgment
of the
lower court in its favour is necessary. The reason for this is that
the adverse part of the reasoning of the lower court
does not amount
to a separate “judgment or order” within the meaning of
section 20(1) of the Supreme Court Act
19
that needs to be altered or amended. It seems this may have been
overlooked by, or not drawn to the attention of, the Supreme Court
of
Appeal.
Customary law under the
Constitution
[23] 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.”
20
Section 39(2) provides that when developing customary law a court
“must promote the spirit, purport and objects of the Bill
of
Rights.”
21
The Constitution thus “
acknowledges
the originality and distinctiveness of indigenous law as an
independent source of norms within the legal system
”
such that customary law “
feeds
into, nourishes, fuses with and becomes part of the amalgam of South
African law.
”
22
[24] This Court has, in a number
of decisions, explained what this resurrection of customary law to
its rightful place as one of
the primary sources of law under the
Constitution means.
23
This includes that:
a) customary law must be
understood in its own terms, and not through the lens of the common
law;
24
b) so understood, customary law
is nevertheless subject to the Constitution and has to be interpreted
in the light of its values;
25
c) customary law is a system of
law that is practised in the community, has its own values and norms,
is practised from generation
to generation and evolves and develops
to meet the changing needs of the community;
26
d) customary law is not a fixed
body of formally classified and easily ascertainable rules. By its
very nature it evolves as the
people who live by its norms change
their patterns of life;
27
e) customary law will continue
to evolve within the context of its values and norms consistently,
with the Constitution;
28
f) the inherent flexibility of
customary law provides room for consensus-seeking and the prevention
and resolution, in family and
clan meetings, of disputes and
disagreements;
29
and
g) these aspects provide a
setting which contributes to the unity of family structures and the
fostering of co-operation, a sense
of responsibility and belonging in
its members, as well as the nurturing of healthy communitarian
traditions like
ubuntu
.
30
[25] Paradoxically, the strength
of customary law – its adaptive inherent flexibility – is
also a potential difficulty
when it comes to its application and
enforcement in a court of law. As stated by Langa DCJ in
Bhe
,
“[t]he difficulty lies not so much in the acceptance of the
notion of ‘living’ customary law. . . but in determining
its content and testing it, as the Court should, against the
provisions of the Bill of Rights.”
31
This difficulty will be addressed later on in this judgment.
The Recognition Act
[26] The Recognition Act
represents “a belated but welcome and ambitious legislative
effort to remedy the historical humiliation
and exclusion meted out
to spouses in marriages which were entered into in accordance with
the law and culture of the indigenous
African people of this
country.”
32
Past law accorded marriages under customary law recognition only as
customary “unions” and this “grudging recognition
of customary marriages prejudiced immeasurably the evolution of rules
governing these marriages.”
33
The Recognition Act is legislation “specifically deal[ing] with
customary law”, as envisaged in terms of section 211(3)
of the
Constitution. Its enactment was inspired by the dignity and equality
rights and the normative value system of the Constitution.
34
It is an adaptation of customary law which “salvage[s] and
free[s] customary law from its stunted and deprived past.”
35
[27] The Recognition Act defines
customary law as “customs and usages traditionally observed
among the indigenous African
peoples of South Africa and which form
part of the cultures of those peoples”
36
and a customary marriage as “a marriage concluded in accordance
with customary law”.
37
[28] Section 3(1) of the
Recognition Act provides that:
“
For
a customary marriage entered into after the commencement of this Act
to be valid―
(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.”
[29] Section 3(1)(a) introduces
express substantive validity requirements that were not required
under pre-colonial notions of customary
law: the majority age and the
consent of both parties to the impending marriage. This development
is significant since, in pre-colonial
times, “marriage was
always a bond between families and not between individual spouses”
38
and the bride- and groom-to-be were thus not always the most
important decision-makers with regard to their pending nuptials.
Section 3(1)(b) goes on to stipulate that “the marriage must be
negotiated and entered into or celebrated in accordance with
customary law”. Customary law may thus impose validity
requirements in addition to those set out in subsection (1)(a). In
order to determine such requirements a court would have to have
regard to the customary practices of the relevant community.
39
[30] The Recognition Act does
regulate, in some detail, various aspects and incidents of customary
marriages. For instance, section
6 of the Recognition Act states
that:
“
A
wife in a customary marriage has, on the basis of equality with her
husband and subject to the matrimonial property system governing
the
marriage, full status and capacity, including the capacity to acquire
assets and to dispose of them, to enter into contracts
and to
litigate, in addition to any rights and powers that she might have at
customary law.”
[31] Section 7(6) goes on to
provide 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.”
[32] Importantly, however, the
Recognition Act does not purport to be – and should not be seen
as – directly dealing
with all necessary aspects of customary
marriage. The Recognition Act expressly left certain rules and
requirements to be determined
by customary law, such as the validity
requirements referred to in section 3(1)(b). This ensures that
customary law will be able
to retain its living nature and that
communities will be able to develop their rules and norms in the
light of changing circumstances
and the overarching values of the
Constitution.
The consent requirement: the
Recognition Act
[33] As set out above,
40
Ms Mayelane has alleged that the law required her husband to have
received her consent in order for his subsequent marriage to
Ms
Ngwenyama to be valid. Such a requirement can arise in one of three
ways: as an express stipulation of the Recognition Act;
as a rule of
Xitsonga customary law; or as a requirement of the Constitution.
[34] Does the Recognition Act
directly prescribe that a first wife must grant her consent to her
husband’s subsequent customary
marriages in order for those
marriages to be valid? We think not.
[35] We now turn to the scheme
of the Recognition Act. Section 2 introduces the movement from
customary “unions” to
marriages properly so-called.
Sections 3 and 4 introduce new requirements regarding the validity
and registration of customary
marriages, while section 5 makes
specific provision regarding the determination of the age of an
alleged minor to a customary marriage.
Section 6 empowers women as
equal partners in a customary marriage and establishes their “full
status and capacity”.
This provision may be seen as a direct
response to the earlier statutory enactment which entrenched the
perpetual minority of black
women.
41
Sections 7 and 8 deal with the proprietary consequences and the
dissolution of customary marriages respectively. Section 9 requires
that the age of majority be established in accordance with statute
rather than with the provisions of living customary law. Finally,
section 10 regulates changes in the prevailing matrimonial property
regime.
[36] Section 3(1)(a), even
though it is contained in the section dealing with validity
requirements, does not prescribe that the
first wife’s consent
is a requirement for the validity of her husband’s subsequent
customary marriages. Where it does
deal with consent, it speaks only
of the consent of “both” “prospective spouses”:
the bride- and the groom-to-be.
[37] Subsections (3) and (4) of
section 3 go on to deal with situations where the Recognition Act
requires a third party’s
consent for the validity of a
marriage, and stipulates that in certain circumstances the parties’
parents, legal guardians
or the Minister for Home Affairs must
consent to the marriage.
It can therefore safely be
concluded that the express requirements for validity stipulated in
section 3 of the Recognition Act
do not directly prescribe the first
wife’s consent to a subsequent marriage.
Section 6 entrenches spousal
equality by providing that a customary wife has “full status
and capacity”. This includes
the capacity to acquire and
alienate assets, the capacity to conclude contracts, the capacity to
conduct litigation and such
further rights and powers as may be
prescribed by living customary law. This section does not purport,
however, to introduce
validity requirements that must be met prior
to the conclusion of a marriage; rather, it imposes consequences on
a marriage that
has already been validly concluded.
Section 7 clearly contemplates
the possibility of a husband entering into more than one customary
marriage. Subsection (6) thus
provides that if a man wishes to
conclude a further marriage, he must apply to court for approval of
the matrimonial property
regime governing his marriages. Subsection
(8) goes on to provide that both the existing and the prospective
wife must be joined
to the authorisation proceedings, as parties
with an obvious and protectable interest in the matter.
Nevertheless, section 7
cannot be read to found a requirement of the
first wife’s consent for the validity of a subsequent marriage
and thus cannot
assist Ms Mayelane in the present circumstances.
The section simply makes no
mention of a first wife’s consent being a requirement for the
validity of the subsequent marriage:
at most, the court must account
for the circumstances of the family groups affected and may go no
further than refusing to approve
the particular matrimonial property
regime put forward if, in its opinion, the interests of, amongst
others, the first wife and
her family would not be “sufficiently
safeguarded” thereby. On a more fundamental level, section 7
does not deal
with the validity requirements for a marriage at all –
it deals with the applicable matrimonial property regime. To
interpret
it as imposing validity requirements over and above those
set out in section 3 would undermine the scheme of the Recognition
Act. For these reasons we endorse the Supreme Court of Appeal’s
interpretation of section 7(6).
Pursuant to section 3(1)(b) of
the Recognition Act, we must therefore turn to living Xitsonga
customary law to determine whether
Ms Mayelane’s claim can be
sustained.
The consent requirement:
Xitsonga customary law
This Court has accepted that
the Constitution’s recognition of customary law as a legal
system that lives side-by-side with
the common law and legislation
42
requires innovation in determining its ‘living’ content,
as opposed to the potentially stultified version contained
in past
legislation and court precedent. However, to date, this Court has
not engaged in an incremental development of customary
law as
contemplated by section 39(2) of the Constitution. In
Bhe
,
the Court invalidated the customary rule of succession regarding
male primogeniture and, by a majority, replaced that rule with
the
statutory regime regarding intestate succession then applicable to
non-adherents of customary law.
43
Gumede
involved confirmation proceedings relating to the
invalidity of legislation.
44
Shilubana
gave recognition to and accepted the development of
customary law already undertaken by traditional authorities.
45
In order to adjudicate Ms
Mayelane’s claim we must determine the content of Xitsonga
customary law regarding a first wife’s
consent to her
husband’s subsequent marriages. The process of determining the
content of a particular customary norm can
present some challenges,
as alluded to above.
46
In
Alexkor
it was noted that in 1988 the Law of Evidence
Amendment Act
47
provided, for the first time, that all the courts were authorised to
take judicial notice of indigenous law,
48
but cautioned:
“
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. . . .
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. It is not necessary for the purposes of this
judgment to decide how such conflicts are to
be resolved.”
49
(Footnotes omitted.)
[45] Van der Westhuizen J,
writing for the Court in
Shilubana,
noted that the process of
determining the content of a particular customary norm must be one
informed by several factors:
a) consideration of the
traditions of the community concerned;
b) the right of communities that
observe systems of customary law to develop their law;
c) the need for flexibility and
development must be balanced against the value of legal certainty,
respect for vested rights and
the protection of constitutional
rights; and
d) while development of
customary law by the courts is distinct from its development by a
customary community, the courts, when
engaged with the adjudication
of a customary-law matter, must remain mindful of their obligations
under section 39(2) of the Constitution
to promote the spirit,
purport and objects of the Bill of Rights.
50
What this tells us is that
caution, patience and respect are needed to ensure that, in taking
its place as an institution of our
democratic dispensation, living
customary law reflects the rights and values of the Constitution
from which it draws its legal
force.
The parties and amici were
directed to provide further representations on Xitsonga customary
law after the hearing. It may well
be asked what the need for
further material is. The first answer lies in the necessity to treat
customary law with the deference
and dignity it deserves as one of
the constitutionally-recognised sources of our law. The mere
assertion by a party of the existence
of a rule of customary law may
not be enough to establish that rule as one of law. Determination of
customary law is a question
of law, as is determination of the
common law. It was contended that because Ms Mayelane made a factual
averment in her papers
that Xitsonga customary law required her
consent for the validity of her husband’s marriage to Ms
Ngwenyama, and because
Ms Ngwenyama failed to rebut or reject that
averment, Ms Mayelane’s averment regarding Xitsonga customary
law had been
sufficiently proved. Ms Mayelane also relied on the
fact that her version was largely confirmed by her deceased
husband’s
brother supporting affidavit.
This cannot be correct. First,
a court is obliged to satisfy itself, as a matter of law, on the
content of customary law, and
its task in this regard may be more
onerous where the customary-law rule at stake is a matter of
controversy. With the constitutional
recognition of customary law,
this has become a responsibility of the courts. It is incumbent on
our courts to take steps to
satisfy themselves as to the content of
customary law and, where necessary, to evaluate local custom in
order to ascertain the
content of the relevant legal rule.
Second, courts must understand
concepts such as “consent” to further customary
marriages within the framework of customary
law, and must be careful
not to impose common-law or other understandings of that concept.
Courts must also not assume that such
a notion as “consent”
will have a universal meaning across all sources of law.
Third, it is important to
ensure that customary law’s congruence with our constitutional
ethos is developed in a participatory
manner, reflected by the
voices of those who live the custom. This is essential to dispel the
notion that constitutional values
are foreign to customary law and
are being imposed on people living under customary law against their
will. There is an untapped
richness in customary law which may show
that the values of the Constitution are recognised, or capable of
being recognised,
in a manner different to a common-law
understanding.
It should also 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 those factors
may be relevant in determining the
validity of further customary
marriages under section 3 of the Recognition Act and its consequent
effect on section 7(6).
As noted earlier, neither the
High Court nor the Supreme Court of Appeal considered it necessary
to have regard to Xitsonga customary
law on the issue of consent.
Therefore, neither court gave any attention to either the
adequacy of the content of Xitsonga customary law relating to
consent
or to whether the development of Xitsonga customary law was
necessary in the circumstances. Because the issue was raised
squarely
before us for the first time it needed to be addressed.
Remittal to the High Court would have involved an unnecessary
duplication
of costs and time in relation to both issues.
The parties and amici were thus
directed to provide further representations on Xitsonga customary
law in this regard after the
oral hearing.
51
They all responded, except the second respondent, who filed a notice
to abide. The richness and diversity of these responses
provided
justification for the three reasons advanced above for seeking
further representation on Xitsonga customary law.
Evidence
The diversity of the responses
might at first seem to represent a problem, but as we shall seek to
show, it does not. The affidavits
filed by the parties represent
four categories: (a) evidence from individuals in polygynous
marriages under Xitsonga customary
law; (b) evidence from an advisor
to traditional leaders; (c) evidence from various traditional
leaders; and (d) expert testimony,
drawing conclusions from
available primary material. Evidence that related to the specific
circumstances of Ms Ngwenyama’s
marriage was also
tendered, but that did not deal directly with the questions posed in
the directions and we shall only deal
with it in the context of the
relief that should be granted.
Three witnesses living in
polygynous marriages filed affidavits. Their evidence is of great
value as an indication of the perspective
of those who ordinarily
adhere to customary law. Hosi Bungeni from the Vhembe district in
the province of Limpopo stated that
he is married to two wives
according to custom. He sought the consent of his first wife before
marrying the second because that
is what he understood the custom to
be. Once the first wife consents she becomes involved in the process
of identifying the other
wife and in the events leading to the
second marriage. If she does not consent the second marriage is
invalid, but that will
not affect the legitimacy of the children
born of the second marriage. Mrs Rikhotso, the fourth wife in a
customary marriage,
largely confirmed his version. Mr Shirinda,
a traditional healer, has six wives. He confirms that the first wife
must be
informed and give consent to subsequent marriages. If she
does not the subsequent marriage will not be valid, but the children
born of it will not be illegitimate and will not be adversely
affected in inheritance. He goes further, however, to deal with
the
situation where consent is withheld. The elders of both families are
then called in to resolve matters. If they decide there
is good
reason for the first wife’s refusal, the husband will be
informed accordingly. If they decide there is no good
reason to
refuse consent the first wife will be approached to persuade her to
change her mind. He thus concludes that consent
of the first wife is
necessary, but he “cannot make this statement too strongly”,
because disagreements are usually
resolved.
Mr Mayimele, an elder and
advisor to traditional leaders, stated that the “first wife
may be informed, but the husband the
makes decision.” The
first wife only becomes involved when her daughter’s lobola is
used as lobola for the subsequent
wife. She can then direct who she
prefers as a subsequent wife. When the husband dies his assets are
divided equally between
the wives. Dr Shilubane, a male commissioner
in the Commission on Traditional Leadership Disputes and Claims,
notes, however,
that the decision to marry may come from three
groups: the first wife, her husband, or his relatives. In the first
case no problems
will arise and the first wife will be involved in
the process of harmoniously proceeding to a subsequent marriage. In
the other
two situations the first wife must be informed. If she
disagrees, but the husband’s family supports him, she has a
choice
still to be involved in the marriage process. If she fails to
do that the family proceeds without her. If she is not informed at
all the second woman will be regarded as a concubine if the
husband’s relatives do not support the husband.
Further evidence was provided
through the testimony of traditional leaders. Reference has already
been made to Hosi Bungeni’s
evidence. According to former
Acting Headman Sethole of Nkovane village the husband must inform
the first wife of his intention
to marry. He will often mandate her
to assist in identifying the appropriate woman. If he had already
done that himself, he will
ask the first wife to be one of the
emissaries in the lobola negotiations. This is done to create
harmony between all concerned.
The first wife is always expected to
agree to a husband taking a second or subsequent wife. If she
unreasonably withholds consent
she would be sent to her parents
homestead to reconsider. If she then returns to her husband but
remains unreasonable in refusing
co-operation the husband may marry
without consent or divorce her. The dissolution of the marriage,
however, cannot take place
by the husband simply leaving the first
wife. For a proper divorce he must call the two families together
for a decision concerning
the divorce. If the fault is his, he is
expected to leave the house for the first wife and children and
build his new house elsewhere.
If he persists in living with the
second woman without the approval of the extended family and his
first wife, the second marriage
is not recognised. The same applies
where the first wife was never informed and the husband left to go
and live with the second
woman. If there is agreement on the divorce
the lobola is returned to the husband’s family. If this is not
done the divorce
is not complete unless the husband elects to
abandon the return of the lobola. Where there are children from the
first marriage,
the lobola would normally not be returned.
Headman Maluleke does not
regard consent of the first wife to be necessary. Because lobola
negotiations take place openly between
families it is unlikely that
the first wife will ever be unaware of an impending second marriage.
He cautions that if this Court
decides that consent is or must be a
requirement for the validity of a subsequent marriage it will have a
hugely disruptive effect
on existing arrangements if the order
operates retrospectively. The issue of retrospectivity will be
considered when dealing
with remedy.
That brings us to the experts.
They come to different conclusions as to whether consent is a
requirement for the validity of a
subsequent marriage. Professor
Boonzaaier, an anthropologist with extensive research experience in
the field of Xitsonga customary
law, comes to the conclusion that
consent is not a requirement and relies for this on a case that
appeared to confirm that the
consistent refusal of a first wife
would lead to a divorce, with lobola to be returned, but the husband
would not require the
consent to conclude the subsequent marriage.
Dr Mhlaba, a senior lecturer in law and jurisprudence, comes to
a different
conclusion, but his treatment of the consequences of
refusal to consent conforms to a large extent with the evidence that
when
the first wife does not consent the families become involved in
order to resolve the matter. He considers it uncertain whether
a
marriage in the face of persistent refusal of consent is valid or
not, and what the consequences for children are. Lastly,
it is
necessary to record that there appears to be agreement that
polygynous marriages are not the norm in Xitsonga society.
Dr
Mhlaba, for example, provides a helpful context to the problem, by
stating that “most Tsonga families are fully nuclear;
a
typical Tsonga family comprises of a husband, wife and children.”
But the choice of further marriages is still available
to VaTsonga
men.
We do not think this picture of
Xitsonga customary law that the further evidence has given us should
be viewed as presenting a
difficulty in deciding the case before us.
It is a necessary process that courts must go through to give
customary law its proper
place. We thank the members of the
community, advisors, and traditional leaders who have assisted us,
for the dignified way in
which they have explained their customs to
us. The further evidence has shown that there are nuances and
perspectives that are
often missed or ignored when viewed from a
common-law perspective. Nevertheless, while we must treat customary
law with respect
and dignity, it remains the courts’ task to
bring customary law, as with the common law, in line with the values
of the
Constitution.
The perspective we gain from
the evidence is not one of contradiction, but of nuance and
accommodation. It seems to us that one
can safely say the following:
(a) although not the general practice any longer, VaTsonga men
have a choice whether to enter
into further customary marriages; (b)
when VaTsonga men decide to do so they must inform their first wife
of their intention;
(c) it is expected of the first wife to agree
and assist in the ensuing process, leading to the further marriage;
(d) if she
does so, harmony is promoted between all concerned; (e)
if she refuses consent, attempts are made to persuade her otherwise;
(f) if that is unsuccessful, the respective families are called to
play a role in resolving the problem; (g) this resolution process
may result in divorce; and finally, (h) if the first wife is not
informed of the impending marriage, the second union will not
be
recognised, but the children of the second union will not be
prejudiced by this as they will still be regarded as legitimate
children. It is not necessary to go further than this and it must be
emphasised that, in the end, it is the function of a 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: a court
must determine for
itself how best to ascertain that content.
Equality and dignity
Section 9(1) of the
Constitution provides that everyone is “equal before the law
and has the right to equal protection and
benefit of the law.”
Section 9(3) proceeds to list
grounds on which a person may not unfairly be discriminated against,
and expressly includes gender
as one of those grounds. In
Harksen v
Lane
, this Court confirmed that discrimination on a listed
ground is de facto unfair discrimination.
52
Thus, any gender-based discrimination is presumed to be unfair under
section 9 of the Constitution.
This Court has repeatedly
emphasised the importance of the right to equality as a cornerstone
of our constitutional democracy.
As noted in
Hugo
:
53
“
At
the heart of the prohibition of unfair discrimination lies a
recognition that the purpose of our new constitutional and democratic
order is the establishment of a society in which all human beings
will be accorded equal dignity and respect regardless of their
membership of particular groups.”
In
Fraser
this Court
stated:
54
“
There
can be no doubt 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. In the very first paragraph of
the preamble it is declared that there is a ‘.
. . need to
create a new order . . . in which there is equality between men and
women and people of all races so that all citizens
shall be able to
enjoy and exercise their fundamental rights and freedoms’.”
(Footnote omitted.)
The Constitution demands
equality in the personal realm of rights and duties as well.
Legislative recognition of equality takes
many forms. The Domestic
Violence Act
55
provides specific protection to spouses
56
when they are or have been subjected to domestic violence. The
husband’s common law marital power with regard to the person
and property of the wife in civil marriages was abolished even
before the advent of the Constitution,
57
as was the common-law position of the husband as the head of the
family. Both parents have full parental responsibilities and
rights
of the children born of their marriage.
58
Section 10 of the Constitution
enshrines the right to human dignity in that everyone “has
inherent dignity and the right
to have their dignity respected and
protected.”
The right to dignity, together
with the right to life, has been held by this Court to be “the
most important of all human
rights, and the source of all other
personal rights” in the Bill of Rights.
59
This Court has further clarified that dignity is not merely a value,
but a “justiciable and enforceable right that must
be
respected and protected.”
60
It is in the light of these
constitutional guarantees that we must determine whether the
Constitution demands that the consent
of the first wife be given
before a subsequent customary marriage can validly be entered into.
Xitsonga customary law and
consent
There is no doubt that the
exercise to determine the content of Xitsonga customary law has
shown that it displays a generous spirit
that is rooted in
accommodating the concerns of the first wife and her family when the
husband seeks to enter into another marriage.
But it remains his
choice to marry again. She does not have that choice. It requires
little imagination or analysis to recognise
that polygynous
marriages differentiate between men and women. Men may marry more
than one wife; women may not marry more than
one husband.
Nevertheless, the validity of polygynous marriages as a legal
institution has not been challenged before us and,
for present
purposes, we must work within a framework that assumes its existence
and validity.
Are the first wife’s
rights to equality and human dignity compatible with allowing her
husband to marry another woman without
her consent? We think not.
The potential for infringement of the dignity and equality rights of
wives in polygynous marriages
is undoubtedly present. First, it must
be acknowledged that “even in idyllic pre-colonial
communities, group interests
were framed in favour of men and often
to the grave disadvantage of women and children”.
61
While we must accord customary law the respect it deserves, we
cannot shy away from our obligation to ensure that it develops
in
accordance with the normative framework of the Constitution.
Second, where subsequent
customary marriages are entered into without the knowledge or
consent of the first wife, she is unable
to consider or protect her
own position. She cannot take an informed decision on her personal
life, her sexual or reproductive
health, or on the possibly adverse
proprietary consequences of a subsequent customary marriage. Any
notion of the first wife’s
equality with her husband would be
completely undermined if he were able to introduce a new marriage
partner to their domestic
life without her consent.
Third, the right to dignity
includes the right-bearer’s entitlement to make choices and to
take decisions that affect his
or her life – the more
significant the decision, the greater the entitlement. Autonomy and
control over one’s personal
circumstances is a fundamental
aspect of human dignity.
62
However, a wife has no effective autonomy over her family life if
her husband is entitled to take a second wife without her consent.
Respect for human dignity requires that her husband be obliged to
seek her consent and that she be entitled to engage in the
cultural
and family processes regarding the undertaking of a second marriage.
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.
In accordance with this Court’s
jurisprudence requiring the determination of living customary law
that is consistent with
the Constitution, we thus conclude that
Xitsonga customary law must be developed, to the extent that it does
not yet do so, to
include a requirement that the consent of the
first wife is necessary for the validity of a subsequent customary
marriage. This
conclusion is in accordance with the demands of human
dignity and equality. These demands are evident from the terms of
the Recognition
Act, which we shall now consider.
Section 3(1)(b) provides that
one of the requirements for a valid customary marriage entered into
after the commencement of the
Recognition Act is that “the
marriage must be negotiated and entered into or celebrated in
accordance with customary law.”
The application of customary
law is subject to the Constitution
63
and its development must promote the spirit, purport and objects of
the Bill of Rights. The achievement of human dignity and
equality is
one of the founding values of the Republic
64
and those values are also fundamental rights under the Bill of
Rights.
65
When section 3(1)(b) thus speaks of customary law marriages, it
necessarily speaks of marriages in accordance with human dignity
and
fundamental equality rights upon which our Constitution is based. It
is no answer to state that the definition of customary
law and
customary marriages in the Recognition Act does not expressly state
this. Those definitions must be read together with
the Constitution
and this Court’s jurisprudence.
In
Gumede
this Court
stated that the Recognition Act not only makes provision for
recognition of customary marriages, but “[m]ost
importantly,
it seeks to jettison gendered inequality within marriage and the
marital power of the husband by providing for the
equal status and
capacity of spouses.”
66
Further on in
Gumede
Moseneke DCJ states:
“
Beyond
the Constitution, the Recognition Act is the starting point of this
equality analysis. It must be understood within the context
of its
legislative design. Its avowed purpose . . . is to transform spousal
relations in customary marriages. The legislation not
only confers
formal recognition on the marriages but also entrenches the equal
status and capacity of spouses and sets itself the
task of regulating
the proprietary consequences of these marriages. In doing so, the
Recognition Act abolishes the marital power
of the husband over the
wife and pronounces them to have equal dignity and capacity in the
marriage enterprise.”
67
Four things need 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.
68
The second is that the wife’s full status and 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.
69
The fourth is that the full status and capacity of a wife in a
customary marriage is not restricted by the wording of the section.
70
The legal status of persons
refers to their standing in the law, their “overall legal
position in relation to other persons
and the community: the
aggregate of [their] various rights, duties and capacities”.
71
Under the Constitution the legal status of persons is based on
everyone being equal before the law and having the right to equal
protection and benefit of the law.
72
This would, in ordinary terms, 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.
That the first wife in a
customary marriage has a material interest in the matrimonial
property system regulating further marriages
is given cognisance in
the Recognition Act. Section 7(4)(b) and (8) require existing
spouses to be joined in proceedings relating
to proposed changes
flowing from further customary marriages entered into before and
after the commencement of the Recognition
Act by their husbands.
But a marriage is about much
more than property. In marriage, the status of the parties undergo a
change recognised at various
levels of the law, for example, in the
law of succession,
73
certain aspects of citizenship,
74
the attainment of majority,
75
and in the marital privilege not to be compelled to disclose the
content of communications between spouses during the marriage.
76
These provisions reflect the recognition given to the personal
rights and duties of spouses in a marriage.
When section 6 of the
Recognition Act states that a wife in a customary marriage has, on
the basis of equality with her husband,
full status and capacity,
77
it means that she also has full status and capacity in relation to
the personal consequences of marriage.
The Recognition Act is thus
premised on a customary marriage that is in accordance with the
dignity and equality demands of the
Constitution. A customary
marriage where the first wife has consented to the further marriage
conforms to the principles of equality
and dignity as contained in
the Constitution. Where the first wife does not give consent, the
subsequent marriage would be invalid
for non-compliance with the
Constitution.
The facts of this matter
concern the situation where there is only one existing wife in a
customary marriage and her husband purports
to enter into a
subsequent customary marriage. The mere fact that there may be
situations where there is more than one wife in
an existing
customary marriage cannot mean that the constitutional norm of
equality cannot find application in those cases. But
that situation
is not before us. That is one reason why we should not determine
that issue here. Another, no less important reason,
is that living
customary law should be allowed its own space to adjust to that
requirement to the extent that it may not yet
do so.
Retrospectivity
The finding that the consent of
the first wife is a necessary dignity and equality component of a
further customary marriage in
terms of section 3(1)(b) of the
Recognition Act means that, from now on, further customary
marriages must comply with that
consent requirement. A subsequent
marriage will be invalid if consent from the first wife is not
obtained. One potential difficulty
raised in argument is that the
effect of the judgment may not become widely and promptly known. To
this end the order makes provision
for its wider publication and
distribution.
Another problem is that we are
not able to determine what the position in customary law systems
other than the Xitsonga system
is. It may be that consent was not a
requirement in some customary law systems and in those cases
retrospective application may
have inequitable consequences for
women who entered into a further customary marriage without knowing
that consent was a requirement
for the validity of those marriages.
In those cases it would be unfair to deprive wives in a further
marriage of the protection
that recognition of validity of their
marriage under the Recognition Act would bring. And as Hosi Maluleke
has pointed out, existing
arrangements in Xitsonga customary law
will also be adversely affected by a retrospective order. Our order
makes it clear that
the general requirement of consent operates only
prospectively, to customary marriages entered into after this
judgment has been
published in the form set out in the order of this
Court.
With regard to the particular
facts of this case, it is clear, from the further affidavits filed
in this Court, that Xitsonga
customary law, even before its
development in this judgment, required that the first wife be
informed of her husband’s
impending subsequent marriage. There
is no evidence to suggest that Ms Mayelane was ever informed of the
impending further marriage
of Mr Moyana to Ms Ngwenyama. It is
therefore clear that the latter marriage is invalid for want of
compliance with the requirements
of Xitsonga customary law as they
existed at the time of the purported marriage.
Costs
The Supreme Court of Appeal
considered that this is a case where, on appeal, no party should be
mulcted in costs for vindicating
a right under the Bill of Rights.
We see no reason why the same approach should not be followed in
this Court, or why a similar
order on costs should not have been
made in the High Court.
Order
[89] The following order is
made:
Leave to appeal is granted.
The applicant’s and
first amicus applications for condonation are granted.
The appeal is upheld.
Paragraph 1(a) of the order
in the Supreme Court of Appeal is set aside and replaced with:
“
The
customary marriage between Hlengani Dyson Moyana and the first
respondent, Mphephu Maria Ngwenyama, is declared null and void.”
Xitsonga customary law is
developed to require the consent of the first wife to a customary
marriage for the validity of
a subsequent customary marriage
entered into by her husband.
The order in paragraph 5
shall operate prospectively.
The Registrar of this Court
is directed to send a copy of this judgment and summary (attached
as annexure A) to Houses of
Traditional Leaders and the Minister
for Home Affairs with a request that they distribute them in any
way they deem appropriate.
ZONDO J:
Introduction
[90] I have had the opportunity
of reading the judgments prepared by Froneman, Khampepe and Skweyiya
JJ (main judgment) and Jafta
J. I agree that leave to appeal should
be granted. I also agree with their conclusion that the appeal
should be upheld. The order
I would make would be one of setting
aside the part of the order of the Supreme Court of Appeal made in
favour of the first respondent
and replacing it with an order
dismissing the first respondent’s appeal. My approach to the
determination of this matter
differs from that adopted in the main
judgment. I shall, therefore, set out below my approach and my
reasons for the order that
I would make.
[91] The main judgment has
correctly set out the facts of this case. Consequently, I do not
propose to engage in the same exercise
except to the limited extent
necessary to ensure a proper understanding of this judgment. The
applicant was married to the late
Mr
Hlengani
Dyson
Moyana by customary law. Their marriage took place at
Nkovani Village, Limpopo Province
. Mr
Moyana died on 28 February 2009. Subsequent to Mr Moyana’s
death it appears that a dispute arose between the applicant
and the
first respondent. The first respondent claimed to have also been
married to Mr Moyana by customary law.
[92] The applicant then brought
an application in the North Gauteng High Court, Pretoria (High
Court) for an order declaring invalid
any marriage that Mr Moyana
may have concluded with the first respondent on, among others, the
basis that by the custom of the
Vatsonga
78
the deceased needed to obtain her consent before he could enter into
a further customary marriage which he did not obtain. The
applicant
was supported on this point by the deceased’s elder brother,
Mr Mzamani Temson Moyana. The first respondent opposed
the
application and contended that the applicant’s own marriage to
the deceased was invalid. She did not dispute the applicant’s
version that according to custom the consent of the first wife was a
requirement for the validity of her marriage. The High Court
granted
the order.
79
There was an appeal to the Supreme Court of Appeal which held the
applicant’s customary marriage to be valid but overturned
the
order of invalidity in relation to the first respondent’s
customary marriage. The Supreme Court of Appeal directed
the
Minister to register the applicant’s customary marriage to her
deceased husband. Thereafter the applicant applied to
this Court for
leave to appeal against the order of the Supreme Court of Appeal
overturning the High Court’s order of invalidity
of the first
respondent’s alleged customary marriage to the deceased.
The question for
determination
[93] The question for
determination is whether, if it is true that the deceased and the
first respondent were married to each
other by customary law when
the deceased died, that marriage was valid despite the fact that the
first respondent did not give
her consent to that marriage. Before
one can answer that question, one must determine what the
requirements for a valid customary
marriage are.
[94] When we heard argument in
this matter, the record before us was the same record that was
before the High Court and the Supreme
Court of Appeal. However,
subsequent to the hearing and after judgment had been reserved, this
Court asked the parties and amici
to deliver further affidavits on
the question of whether among the Vatsonga the first wife’s
consent is a requirement for
the validity of her husband’s
further customary marriage with another woman. The parties and amici
delivered further affidavits
on the issue. I shall deal later with
the question whether or not this Court should have called for
additional evidence.
[95] Since I am of the view
that the additional affidavits should not have been called for and
this Court should have decided
the matter on the same record that
was before the High Court and the Supreme Court of Appeal, I propose
to deal first with this
matter on the basis of the same record that
was before the High Court and the Supreme Court of Appeal.
Thereafter, I shall consider
the impact of the new evidence to see
whether the presence of the additional affidavits affects the
result. In other words, I
shall decide the matter both in the way in
which I think it should be decided if one leaves the additional
evidence out of account
and also in the manner in which I think it
should be decided even with the additional evidence, assuming that
the Court was right
in calling for additional affidavits.
How the matter should be
decided on the same record that was before the Court a quo
[96] Section 211(3) of the
Constitution enjoins courts to “apply customary law when that
law is applicable, subject to the
Constitution and any legislation
that specifically deals with customary law.” The validity of a
customary marriage is governed
by the provisions of the Recognition
of Customary Marriages Act
80
(Recognition Act). According to the preamble, the objects of the
Recognition Act include “[t]o make provision for the
recognition of customary marriages” and the specification of
“the requirements for a valid customary marriage”.
[97] Before setting out the
requirements for a valid customary marriage, it is necessary to have
regard to the definition of a
“customary marriage” in
the Recognition Act. The Recognition Act defines a customary
marriage as a “marriage
concluded in accordance with customary
law”. The effect of this definition is that a marriage that is
not concluded in
accordance with customary law is not a customary
marriage. Of course, this definition makes it necessary to also have
regard
to the definition of “customary law”. The
Recognition Act defines “customary law” as “the
customs
and usages traditionally observed among the indigenous
African peoples of South Africa and which form part of the culture
of
those peoples”. This means that, whenever it is sought to
establish what the customary law position is on a certain issue
in
the context of the Recognition Act, it must be established what “the
customs and usages traditionally observed among”
the relevant
group of the indigenous African peoples are which “form part
of the culture of” that group of people.
[98] The result of the exercise
referred to above will be the customary law of that group of people
on that issue. That can be
established by way of evidence from a
person or persons who have knowledge of the relevant custom or
customs and usages as contemplated
in the definition of “customary
law”. A person who gives evidence about such matters need not
be an expert witness
nor does such a person need to occupy a
particular position of authority in the relevant group of people.
Anyone who has knowledge
of the relevant custom or customs and
usages may give evidence about them. I now turn to the requirements
for a valid customary
marriage.
[99] This Court stated in
Shilubana and Others v Nwamitwa
81
that “the practice of a particular community is relevant when
determining the content of a customary-law norm.”
82
It then said: “As this court held in
Richtersveld
,
the
content of customary law must be determined with reference to both
the history and the usage of the community concerned
.”
83
(Emphasis added.) After acknowledging that the determination of
“[l]iving” customary law is not always easy and that,
sometimes, it may not be possible to determine a new position with
clarity, this Court said that where there is a “dispute
over
the law of a community,
parties should strive to place evidence
of the present practice of that community before the courts, and
courts have a duty to
examine the law in the context of a community
and to acknowledge developments if they have occurred
.”
84
(Emphasis added.) At the end of its consideration of the preliminary
question, this Court said: “To sum up: where there
is a
dispute over the legal position under customary law, a court must
consider both the traditions and the present practice
of the
community.”
[100] Section 2 of the
Recognition Act governs the recognition of customary marriages
whereas section 3 governs the requirements
for the validity of a
customary marriage. Section 2 reads as follows:
“
(1)
A marriage which is a valid marriage at customary law and existing
at the commencement of this Act is for all purposes recognised
as a
marriage.
(2) A customary marriage
entered into after the commencement of this Act, which complies with
the requirements of this Act, is
for all purposes recognised as a
marriage.
(3) If a person is a spouse in
more than one customary marriage, all valid customary marriages
entered into before the commencement
of this Act are for all
purposes recognised as marriages.
(4) If a person is a spouse in
more than one customary marriage, all such marriages entered into
after the commencement of this
Act, which comply with the provisions
of this Act, are for all purposes recognised as marriages.”
In my view, the phrase “which
complies with the requirements of this Act” in section 2(2)
refers to the requirements
of this Act concerning the validity of a
customary marriage. In other words the phrase does not refer to
requirements of the
Recognition Act which have nothing to do with
the validity of a customary marriage.
[101] Section 3 of the
Recognition Act governs the validity of a customary marriage.
Section 3 reads in relevant part:
“
(1)
For a customary marriage entered into after the commencement of this
Act to be valid—
(a) the prospective spouses—
must both be above the age of
18 years; and
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.”
[102] In this case the
requirements in section 3(a)(i) and (ii) are not in issue. The
requirement in section 3(1)(b) is in issue.
It is under this
provision that the requirement of the consent of the first wife
would fall if it is a requirement for the validity
of a second or
further customary marriage involving her husband. The question to be
asked in determining whether a customary
marriage has complied with
the requirement in section 3(1)(b) is: was the marriage
negotiated and entered into or celebrated
in accordance with the
customs and usages traditionally observed by the relevant group of
the indigenous African peoples which
form part of the culture of
that group of people?
85
If the answer is yes, the requirement has been complied with and the
second or further customary marriage is valid. If the answer
is no,
the requirement has not been complied with and the marriage is not
valid.
Is the consent of the first
wife a requirement for the validity of a customary marriage between
a man and his second wife
?
[103] Whether or not the
consent of the first wife was required for the validity of the
alleged customary marriage between the
deceased and the first
respondent depends upon whether “the customs and usages
traditionally observed among” the
Vatsonga “and which
form part of the culture” of the Vatsonga require that the
consent of the first wife be obtained
when a second or further
customary marriage involving her husband is “negotiated and
entered into or celebrated”.
If, in terms of those customs and
usages, the consent of the first wife is required, then that is the
customary law of the Vatsonga.
If, in terms of those customs and
usages, the first wife’s consent is not required, then that is
the customary law of the
Vatsonga. In other words what the customary
law of the Vatsonga people is on this issue is determined by what
the customs and
usages are that are traditionally observed among the
Vatsonga which form part of their culture.
[104] The applicant said in her
founding affidavit that: “If any marriage was concluded, I
submit that the marriage was
void
ab initio
because I never
consented to such marriage.” At the end of the same paragraph
she reiterated that she never consented to
the marriage between the
deceased and the first respondent.
[105] In a supporting affidavit
the deceased’s elder brother, who was 71 years old when he
deposed to the affidavit, says:
“
In
terms of our custom the first wife must be consulted and consent to
the marriage of the second wife. Secondly, the blood relatives
of
the husband must be present to witness the marriage. I have spoken
to all my siblings and they all deny that they paid lobola
to the
1
st
Respondent. I have spoken to one Mphephu Matsembi who the 1
st
respondent alleges witnessed the marriage. She explained to me that
on the date mentioned on annexure ‘C’ she did
go to the
1
st
Respondent’s house at the invitation of the deceased. She
explained that the deceased wanted to pay some introduction fee,
not
lobola, to the 1
st
respondent’s
parents. As 1
st
respondent was previously married and was old and had five children
from her previous marriage, no lobola can be paid for her
according
to custom. The intention was to introduce my brother to the parents
of the 1
st
respondent as he was staying with her and sleeping there because it
was closer to his work.”
[106] In her answering
affidavit the first respondent did not deny the evidence given by
the applicant and the deceased’s
elder brother. She also did
not put in dispute the deceased’s elder brother’s
further evidence that the blood relatives
of the husband must be
present to witness a marriage involving their relative. In this
regard the elder brother’s evidence
is that he spoke to all
his siblings and they all denied that the deceased paid ilobolo for
the first respondent. The first respondent
said that she was
attaching to her affidavit “a copy of the lobola negotiation
marked annexure ‘A’ as well
as the affidavits of the
witnesses who were present during the lobola negotiations marked
annexure ‘B’ and ‘C’.”
However, no
such annexures were attached to her affidavit.
[107] There is no reason to
doubt the deceased’s elder brother’s evidence about what
the custom of the Vatsonga is
with regard to the consent of the
first wife when her husband wishes to enter into a further customary
marriage with another
woman. As the first respondent has not
challenged the applicant’s and the deceased’s elder
brother’s evidence
about the first wife’s consent being
a requirement for the validity of her husband’s further
marriage to another
woman, this matter must be dealt with on the
basis that on this issue the applicant’s evidence is
undisputed. I cannot
see on what basis we can decide the matter on a
different factual basis than that which is common cause between the
applicant
and the first respondent on the record before us. There is
no basis upon which it can be suggested that the deceased’s
elder brother does not know the custom in connection with which he
has given evidence in his affidavit.
[108] The first respondent
bears the onus to prove that there was a marriage between her and
the deceased and that that marriage
“was negotiated and
entered into or celebrated” in accordance with the custom and
usages traditionally observed among
the Vatsonga and which form part
of their culture. After all, if a marriage did take place between
herself and the deceased,
she is the one person who should have
personal knowledge of what procedure was followed and how the
marriage was negotiated,
entered into or celebrated. She adduced no
evidence to show that such a marriage took place and, if so, how it
was negotiated
and entered into or celebrated or who represented the
deceased’s family in the negotiations and who witnessed such
marriage.
In the absence of evidence supporting her claim on these
issues, not only has the first respondent failed to show that there
was a customary marriage but she has even failed to show that there
was a marriage of any kind between herself and the deceased.
Accordingly, I conclude that no marriage has been proved to have
existed between the deceased and the first respondent at the
time of
the former’s death but, if a marriage did exist, it was not a
valid customary marriage.
[109] So far, I have dealt with
this matter in the manner in which, in my view, it ought to be dealt
with in the absence of the
new evidence. However, since there is new
evidence that has been delivered by way of affidavits by the parties
and amici pursuant
to the directions of this Court, I will also
consider the matter in the light of the additional evidence.
Deciding the matter in the
light of the additional affidavits
Directions calling for
additional evidence
[110] The main judgment deals
with the matter in the light of the directions this Court issued to
the parties and amici inviting
them to deliver evidence by way of
affidavits on whether, in terms of Xitsonga customary law, the
consent of the first wife is
a requirement for the validity of a
further customary marriage that her husband may wish to conclude
with another woman. The
question that arises is whether this Court
should have issued those directions. I now propose to consider
whether this Court
should have called for the further evidence and
to then deal with the matter in the light of that evidence.
Should this Court have
called for new evidence?
[111] In my view this Court
should not have issued the directions. As I have said earlier, the
effect of the definition of “customary
law” in the
Recognition Act is that customary law is determined by ascertaining
what the customs and usages of the relevant
indigenous group of
South African peoples are in relation to a particular point. Once
you have established what the relevant
custom and usages of the
relevant group are, you have the customary law position of that
group of people on the point in question.
[112] Viewed in this context,
it is clear that the directions issued by this Court called for
evidence about what the custom and
usages or practices of the
Vatsonga are on whether the consent of the first wife is a
requirement for the validity of a further
customary marriage between
her husband and another woman. This could only be factual evidence
about what the customs and practices
of the Vatsonga are. The
responses to such directions could contain contradictory evidence on
what the custom and usages or practices
are and this Court could
find that it has no way of resolving the conflict in the evidence.
It would not have a way of resolving
that conflict because,
realistically, this Court would not sit as a trial court and listen
to oral evidence of witnesses who
would need to be subjected to
cross-examination if there was a dispute of fact in the affidavits.
[113] This Court would also not
be able to use the
Plascon-Evans
86
approach to resolve material disputes of fact that may arise out of
affidavits delivered in response to such directions. The
Court could
not use the
Plascon-Evans
approach because that approach
normally applies where the applicant has had the opportunity in the
court of first instance to
apply that a material dispute of fact be
referred to oral evidence but elected not to make that application.
Where it is this
Court that calls for additional evidence, there
would be no basis for invoking the
Plascon-Evans
approach
when the party who may be disadvantaged by the use of that approach
has not had the opportunity to ask for the issue
to be referred to
oral evidence. An appreciation of the difficulties associated with
the admission of disputed new evidence in
this Court seems to me to
be the rationale behind the requirement in Rule 31
87
that new material or evidence that a party or amicus may apply to
have admitted to this Court must be undisputed evidence.
[114] Another reason why this
Court should not have called for further evidence is that in this
matter it is sitting as a court
of appeal and its function is to
decide whether on the same evidence that was before the Court a quo
the decision of that Court
was right or wrong.
88
Sitting as such and performing that function, this Court should not,
in my view,
mero motu
call for new evidence except, maybe, in
exceptional circumstances. The main judgment does not set out any
exceptional circumstances
justifying the admission of new evidence
on appeal.
[115] A further reason why this
Court should not have issued the directions is that the parties in
this matter had had ample opportunity
in the High Court to present
evidence by way of affidavits on the issue under consideration and
none of the parties was not afforded
enough opportunity in the High
Court to present as much evidence as it wanted to in order to prove
its case. That being the case
this Court should decide this appeal
on the basis of the evidence that was before the High Court. If that
evidence was not enough
to justify making an order declaring invalid
any customary marriage that may have existed between the first
respondent and the
applicant’s late husband, the applicant’s
appeal should have been dismissed. If the evidence was enough, then
this
Court would uphold the appeal, set aside the relevant order of
the Supreme Court of Appeal and, for it, substitute a declaratory
order to the effect referred to in the preceding sentence. Where
parties have no complaint about the adequacy of the opportunity
they
had in the High Court of filing whatever affidavits they wished to
file and that Court decided the matter on the evidence
before it and
the Supreme Court of Appeal also decided a subsequent appeal on that
evidence, this Court should generally decide
the appeal on the same
record as the High Court and the Supreme Court of Appeal did. There
was no warrant for this Court to call
for new evidence in respect of
which it would sit as a court of first and final instance.
The new evidence
[116] I do not propose to
detail the evidence contained in the various additional affidavits
delivered pursuant to the directions
of this Court. I propose to
make only two or three observations about the evidence. The evidence
can be grouped under three categories.
The first category is that of
evidence that is to the effect that among the Vatsonga, the consent
of the first wife is a requirement
for the validity of her husband’s
further customary marriage to another woman. The second category is
that of evidence
that is to the effect that the first wife’s
consent is not a requirement and the husband only needs to inform
her of his
intention to marry another woman. The third is that of
two deponents. The one deponent is Mr Chavane Samson Sethole. He is
a
member of the Vatsonga. His evidence is in effect that the first
wife’s consent is required but it may not be withheld
unreasonably and, if it is withheld unreasonably, the husband may
enter into a further customary marriage without the first wife’s
consent or divorce her. The other deponent is Professor Carl
Boonzaaier, an anthropologist. Professor Boonzaaier puts
himself in the category of the witnesses who say that the first
wife’s consent is not a requirement but the basis upon which
he states this supports the notion that the first wife’s
consent is a requirement.
89
What is to be done with the
new evidence?
[117] The main judgment
approaches the new evidence on the basis that there are no
contradictions in the additional affidavits.
It says that the
perspective gained from the new evidence is “not one of
contradiction, but of nuance and accommodation.”
90
It then proceeds to state what it says can be safely said in light
of that evidence.
91
The following is what the main judgment then states as emerging from
the new evidence, namely:
“
(a)
although not the general practice any longer, Vatsonga men have the
choice whether to enter into further customary marriages;
(b) when
they decide to do so they must inform their first wife of their
intention; (c) it is expected of the first wife to agree
and assist
in the ensuing process, leading to the further marriage; (d) if she
does so, harmony is ensured between all concerned;
(e) if she
refuses consent, attempts are made to persuade her otherwise; (f) if
that is unsuccessful, the families are called
in to resolve the
problem; (g) this resolution process may result in divorce; and
finally, (h) if the first wife is not informed
of the impending
marriage, the second union will not be recognised, but the children
of the second marriage will not be prejudiced
by this as they will
still be regarded as legitimate children.”
92
It is stated in the main
judgment that it is not necessary to go further than the above
conclusions. It says it must be emphasised
that “in the end,
it is the function of a court to decide what the content of
customary law is, as a matter of law not
fact.” It continues:
“It does not depend on the rules of evidence: a court must
determine for itself how best to
ascertain that content.” On
the basis of the additional affidavits the main judgment concludes
that the first wife needs
to be informed of the husband’s
intention to conclude a further marriage with another woman.
[118] I am unable to agree with
the main judgment that there are no contradictions or disputes of
fact in the additional affidavits.
When I read those affidavits, the
single most material dispute of fact, namely, whether, among the
Vatsonga, a man needs to obtain
his first wife’s consent
before he can enter into a second or further customary marriage with
another woman, seems to be
quite prominent. The main judgment’s
conclusion that there are no disputes of fact on the issue under
consideration runs
contrary to the contents of the affidavits. I
demonstrate this by way of reference to the contents of the
affidavits below.
The deponents who say the
first wife’s consent is a requirement
[119] In his affidavit Mr
Nkanyani inter alia says:
“
It
is the custom of the Xitsonga/Shangaan speaking people for the
husband to first obtain willingness or permission of the first
wife
to enter into marriage with the second and subsequent wives.”
In his affidavit Dr Mhlaba
inter alia says:
“
In
all Vatsonga communities, consent of the first wife is an essential
requirement for the husband to conclude a second marriage.
If the
man already has more than one wife, only the first wife must consent
to a subsequent marriage. It is the first wife’s
duty to
discuss the subsequent marriage with the other wives, but there is
no requirement that they agree.”
In his affidavit Mr Shirinda
inter alia says:
“
In
my experience, which I believe accords with custom, the first wife
must give consent before the husband takes a second wife
or
subsequent wives. It is wrong, according to our custom for a man to
marry a subsequent wife without discussing the proposal
with the
first wife and without the first wife giving her consent to the
marriage.”
The witnesses who say that
the first wife’s consent is not required and that she only
needs to be informed of her husband’s
intentions
[120] In his affidavit Dr Paul
Shilubane says that a man is required to inform his first wife of
his intention to enter into a
further customary marriage with
another woman but does not need to obtain her consent. He says that
a failure by a man to inform
his first wife of his intention to
marry another woman results in the invalidity of the further
marriage.
[121] In his affidavit
Mr Mayimele says: “The first wife may be informed, but
the husband makes the decision.”
[122] In his affidavit Mr
Maluleke says:
“
As
regards the tradition and practice of taking subsequent wives under
Tsonga custom, the prospective bridegroom should inform
his existing
wife about his intentions to marry another wife. He informs her so
that she should not be surprised in seeing another
wife. It is not a
requirement to even advise as to the identity of the prospective
subsequent wife. Whether she gives her consent
or not, the
prospective bridegroom will proceed with his plan to marry another
wife.”
Mr Maluleke also says in
another paragraph: “It is not a requirement that the existing
wife must give consent to a prospective
subsequent marriage by the
husband.”
[123] It is clear from the
excerpts and references to the contents of the affidavits of some of
the persons who deposed to the
additional affidavits that there are
clear contradictions between, on the one hand, the first set of
witnesses referred to above
who say that the first wife’s
consent is a requirement and, on the other, the second set of
witnesses, who say that, according
to Xitsonga custom and practice,
the first wife’s consent is not required but she only needs to
be informed. One deponent
even says in effect that the first wife’s
consent is required but, if she unreasonably refuses to give it, the
man may
go ahead and enter into a further customary marriage with
another woman.
[124] Even if there were no
contradictions or disputes of fact in the additional affidavits and
the contents of the additional
affidavits were all to the effect
that the consent of the first wife is not a requirement and the
first wife only needs to be
informed of her husband’s
intentions, the matter could still not be adjudicated on the basis
that there are no contradictions
or that there is no dispute of fact
in this matter. There would still be a material dispute of fact
because the applicant and
the deceased’s elder brother, said
in their respective affidavits filed in the High Court that,
according to Xitsonga custom,
the first wife’s consent is a
requirement for the validity of a subsequent marriage between her
husband and another woman
and more than half of the additional
affidavits that have been filed say the same thing and, therefore,
support the applicant’s
and the deceased’s elder
brother’s evidence in this regard.
[125] In summarising what
emerges from the additional affidavits the main judgment states
that, when Xitsonga men enter into further
customary marriages “they
must inform their first wife of their intention” and “if
the first wife is not informed
of the impending marriage the second
union will not be recognised”.
93
This means that the main judgment prefers the evidence of Mr
Maluleke and Dr Shilubane on the issue under consideration. Both
said in their affidavits that, according to Xitsonga custom and
practices, the first wife must be informed of her husband’s
intention to marry another woman. Mr Mayimele said that the first
wife may be informed.
[126] It is clear from the
contradictory nature of the evidence that emerges from the
additional affidavits that we are faced
with a material dispute of
fact in the affidavits on whether the first wife’s consent is
a requirement or whether the requirement
is that she be informed of
her husband’s intention to marry another woman. We are dealing
with an appeal in a matter brought
to the High Court by way of
motion proceedings. I am unable to see the legal basis upon which we
can prefer one version over
another on this dispute of fact in a
motion matter. In this regard we have to remember that we are
dealing with section 3(1)(b)
of the Recognition Act and trying to
establish whether, if there was a marriage between the deceased and
the first respondent,
for that marriage to constitute a valid
customary marriage, the deceased needed the applicant’s
consent or he only needed
to have informed her. Establishing that
requires us to establish the customs and usages traditionally
observed by the Vatsonga
which form part of their culture. Customs
and usages “traditionally observed” by any group of
people is a question
of fact and not of law. When there is a
material dispute of fact in a matter brought to court by way of
motion proceedings, it
cannot be decided on the papers without the
use of the
Plascon-Evans
approach in circumstances where the
dispute is not referred to oral evidence.
[127] If the matter is to be
decided on the basis of all the affidavits before the Court, the
proper approach would not involve
preferring one version over the
other. It would simply be that, on the evidence before the Court,
the position is that the customary
law applicable to the Vatsonga
either requires the first wife’s consent or requires that the
first wife be informed of
her husband’s intention to enter
into a further customary marriage with another woman. In the present
case it is undisputed
that the applicant did not give her husband
her consent nor has it been shown that the deceased informed the
applicant of his
intention to marry the first respondent.
Accordingly, on either basis the first respondent had no valid
customary marriage with
the deceased at the time of the latter’s
death.
[128] I have pointed out that
the first respondent bore the onus of proving that she and the
applicant’s deceased husband
had concluded a valid customary
marriage which was in existence when the deceased passed away. In
this case the first respondent
did not even prove that a marriage of
whatever kind was concluded between herself and the deceased. The
first respondent was
required to set out what the requirements of a
valid customary marriage are and to show by way of evidence how
those requirements
were met in the case of her relationship with the
deceased. She did not do so. Other than saying that there had been
ilobolo
negotiations, she said nothing else. Since she did not say
that ilobolo negotiations are the only requirement for a valid
customary
marriage with a man who is already a party to another
customary marriage, it cannot be held, even on her own case, that
her relationship
with the deceased constituted a customary marriage.
That being the case an order to the effect that no valid customary
marriage
existed between her and the deceased at the time of the
latter’s death is fully justified.
[129] I note that, when
affidavits were filed pursuant to the directions of this Court, the
first respondent opportunistically
filed affidavits which she did
not file in the High Court which seek to show that there was a
marriage between herself and the
deceased and that there were
certain people who attended the wedding and that it was conducted in
accordance with the customs
of the Vatsonga. She did not make an
application for the admission of those affidavits nor has she
proffered any explanation
why they were not filed in the High Court
and why they should be admitted at this stage. This Court should not
allow chaotic
litigation which is what we will have if litigants
disregard the Rules of this Court and Court directions and do as
they please.
There are good reasons why there are rules for the
conduct of litigation in the courts and they should be observed and
should
only be departed from when there is good cause for such
deviation or where it is in the interests of justice to do so. A
party
cannot elect not to file affidavits in the High Court and be
content to have the case adjudicated without such affidavits in that
Court and in a subsequent appeal to the Supreme Court of Appeal but,
when the matter is before this Court, file affidavits under
the
pretext that they are filed pursuant to the directions of this Court
when in fact they were not being filed pursuant to those
directions.
[130] On the approach I adopt
in deciding this matter, like Jafta J, I am of the opinion that the
development of Xitsonga customary
law is not necessary to reach the
conclusion that, in so far as the first respondent may have had a
marriage with the deceased,
such marriage was invalid. This is the
case irrespective of whether one takes into account the additional
affidavits. I am also
in full agreement with the views expressed by
Jafta J in [142]-[150] of his judgment.
[131] Whether I deal with the
matter on the basis of the affidavits that were before the High
Court and the Supreme Court of Appeal
or on the basis of those
affidavits plus the additional affidavits, I would grant leave to
appeal, uphold the appeal, set aside
the relevant part of the order
of the Supreme Court of Appeal and replace it with an order
declaring that there was no valid
customary marriage between the
first respondent and the deceased at the time of the latter’s
death.
JAFTA J (Mogoeng CJ and
Nkabinde J concurring):
[132] I have
read the main judgment
94
and the judgment of Zondo J in this matter. I
agree with the main judgment that leave to appeal must be granted
and the appeal
be upheld. I also agree that the second customary
marriage should be declared invalid because it was not “negotiated
and
entered into or celebrated in accordance with customary law”
that applied to the community to which the “spouses”
in
that marriage belong.
[133]
However, I differ with the main judgment in relation to the
development of customary law on whether consent should be given
before a husband can marry another wife in terms of Xitsonga
customary law. The main judgment develops Xitsonga customary law
to
the extent that it does not include a requirement that “the
consent of the first wife is necessary for the validity
of a
subsequent customary marriage.”
95
[134] My
dissent is based on these reasons. First, the parties to the dispute
(both the applicant and the first respondent) did
not ask for the
development of Xitsonga customary law, not in the High Court or the
Supreme Court of Appeal and not in this Court.
The reason for this
stance is simply that it is not disputed between them that consent
of the first wife is a requirement for
the validity of a subsequent
customary marriage under Xitsonga customary law that governs them.
The applicant averred in her
founding affidavit that in terms of
Xitsonga custom consent of the first wife is a requirement for the
validity of a subsequent
marriage. In this regard she was supported
by the affidavit of her brother-in-law, Mr Moyana, the details of
which are quoted
in the judgment of Zondo J.
96
[135] As it appears in the main
judgment, this Court was of the view that the evidence was
inadequate to establish the existence
of the Xitsonga customary law
rule relied on by the applicant. Directions were issued calling for
further evidence after the
hearing of the matter. Such evidence was
furnished to the Court in the form of various affidavits which are
summarised in the
main judgment. The majority of deponents to those
affidavits confirmed and supported the applicant and her
brother-in-law in
asserting that in terms of Xitsonga custom,
consent of the first wife is required for a subsequent customary
marriage to be valid.
[136] These deponents include
traditional leaders who practise and follow the custom in question.
The first traditional leader
is Hosi Bungeni who has two wives
married according to Xitsonga custom. Before marrying his second
wife he sought and obtained
the consent of the first wife. He stated
that if the first wife refuses to consent, the subsequent marriage
becomes invalid.
This pronouncement is supported by another
traditional leader, Hosi Sethole. He said the husband is required to
inform his first
wife who must consent to a subsequent marriage. If
the first wife withholds her consent she is sent to her maiden home
and if
upon her return she still refuses to consent the husband may
marry without it, if consent was unreasonably withheld.
Alternatively,
the husband may divorce the first wife.
[137] Further support is found
in the evidence of Hosi Nkanyani, a senior traditional leader in the
Vhembe district, Limpopo Province.
He, too, stated that a husband
must first obtain consent of the first wife before he can enter into
a subsequent customary marriage.
This evidence is reinforced further
by the affidavit of Dr Mhlaba, a senior lecturer in the School of
Law at the University of
Limpopo. He was asked by the lawyers for
the second and third amicus curiae to investigate the matter. In his
investigation,
he interviewed two traditional leaders, Hosi Nxumala
(by representation through Nduna Mayinga) and Hosi Mohlaba II. He
also interviewed
Nduna Mohlaba as well as Mr Mabunda, a tribal
councillor and Mr Mkhawana, a chief’s adviser. His selection
of these individuals,
he says, was based on their knowledge of
customary law. Based on the interviews he had Dr Mhlaba said:
“
In
all Vatsonga communities, consent of the first wife is an essential
requirement for the husband to conclude a second marriage.
If the
man already has more than one wife, only the first wife must consent
to a subsequent marriage. It is the first wife’s
duty to
discuss the subsequent marriage with the other wives, but there is
no requirement that they agree.”
[138] The evidence supporting
the applicant in her assertion of the customary law rule on consent
is overwhelming. In addition
to the evidence of traditional leaders,
there is testimony of Mrs Rikhotso who is a fourth wife in a
customary marriage
setting and Mr Shirinda, a traditional
healer with six wives. In his affidavit Mr Shirinda
emphatically states:
“
It
is wrong, according to our custom for a man to marry a subsequent
wife without discussing the proposal with the first wife
and without
the first wife giving her consent to the marriage.”
[139] In the light of this
evidence, it has been established that the custom observed by the
community to which the applicant
and her late husband belong
requires consent of the first wife for a subsequent marriage to be
valid. This meets the concern
that the Court had on the adequacy of
evidence establishing the customary law rule relied on by the
applicant. Accordingly, there
is no need for developing Xitsonga
customary law in so far as the present case is concerned. I reach
this conclusion mindful
of the fact that in the evidence gathered by
the Court, there is also testimony to the effect that the custom
normally requires
the first wife to be informed of her husband’s
decision to enter into a subsequent marriage. What is important to
keep
in mind is that none of the witnesses who testified differently
have said that the custom, as known to them, is practised and
followed by the applicant’s community which is relevant to
these proceedings.
[140] It is
not unheard of that within the same broader group of African people
we find customary law rules which differ. This
may occur as a result
of development that takes place in various communities within a
group. An example of this happened in
Shilubana.
97
At issue in that case was the enforcement of the
customary law rule of primogeniture in terms of which only male
children of a
chief may inherit the chieftainship. The Valoyi
community within the Vatsonga ethnic group had developed the rule to
include
female children. This Court recognised and upheld the
developed customary law rule and held that a daughter could succeed
her
father and become a chief. The rule did not apply to the whole
Vatsonga group but to that particular community.
[141] Having regard to the body
of evidence as a whole, the objective sought to be attained by the
Court has been achieved. The
custom followed by the applicant’s
community when a husband wishes to conclude a subsequent customary
marriage is established.
For a subsequent marriage to be valid, the
first wife must give her consent. The facts on record show that the
applicant’s
consent was not obtained before the purported
customary marriage between her husband and the first respondent was
concluded.
It follows that the first respondent’s marriage is
invalid.
[142] But the main judgment
goes further to develop Xitsonga customary law, to the extent that
it does not already require consent
of the first wife. As is
apparent above, this development is not necessary for reaching the
outcome in the present case. In fact
the development falls outside
the scope of the current case. As mentioned earlier none of the
parties have asked for it. But
even if one of them did, it would
have been inappropriate to raise the development of customary law
for the first time in this
Court. It was not raised in the High
Court. Nor was it raised in the Supreme Court of Appeal. Therefore,
this Court deals with
the development of Xitsonga customary law as a
court of first and last instance. That is undesirable and where it
is not necessary
for a determination of a dispute, in my view, it
should not be done.
[143] There
are good reasons for the principle that the claim for the
development of the common law, and by parity of reasoning
customary
law, should be pleaded in the High Court and failing which to be
raised in the Supreme Court of Appeal. A properly
pleaded claim
allows the other parties to meet it head on and place before a court
evidence necessary for assessing the propriety
of the development.
In this case we do not know why the other Vatsonga communities
follow the custom of simply informing the
first wife instead of
requiring her consent. On the face of it, the rule appears to be
inconsistent with the rights to dignity
and equality, entrenched in
the Bill of Rights. But we know that under appropriate circumstances
these rights can be limited.
Because the case was not about the
validity of the developed rule, we do not know if there is
justification for it.
98
In the circumstances of this case it would be
dangerous to assume that there is no justification. There can be
little doubt that
the rule under development here constitutes a law
of general application within the relevant community and that it may
impose
a reasonable and justifiable limitation on the rights
mentioned.
99
[144] Moreover, Xitsonga
customary law as developed in the main judgment appears not to be in
line with the Constitution. To require
the consent of the first wife
only is not consistent with the equality clause. And if the rule is
to be developed to require
consent of all existing wives, there may
be difficulties arising out of its application. Take for example the
case of a man with
13 wives who wishes to marry another wife. If he
marries with consent of 12 wives only because one of them did not
consent, can
it be said that the marriage is invalid? Would the lack
of consent by one wife vitiate a marriage concluded with the consent
of 12 other wives? These issues were not canvassed because of the
manner in which the case was prosecuted in other courts and in
this
Court.
[145] With regard to the
development of the common law, this Court has refused to undertake
it in circumstances where one of the
parties asked for the
development for the first time in this Court. The Court pointed out
that a development of that kind makes
this a Court of first and last
instance on the issue. A development of the common law in
circumstances where it was not raised
in the other courts is
permissible only in exceptional circumstances. I can think of no
reason why the development of customary
law should be treated
differently. Section 39(2) of the Constitution in terms of which the
main judgment undertakes the development
provides:
“
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights.”
[146] Clearly section 39(2)
refers to both the common law and customary law in one breath. It
requires every court to promote
the “spirit, purport and
objects of the Bill of Rights” in developing either the common
law or customary law. Consequently,
there can be no justification in
treating them differently when it comes to circumstances under which
development may be undertaken.
[147] In
Lane and Fey NNO v Dabelstein and
Others
100
this Court affirmed that a party will be allowed
to seek the development of the common law if the request is made for
the first
time in this Court, under special circumstances. In that
case this Court said:
“
Where
the development of the common law is the issue, the views and
approach of the ordinary courts, and particularly the SCA,
are of
particular significance and value. Save in special circumstances,
this Court should not consider this kind of matter as
a court of
first instance.
No
relevant factors have been raised by the applicants that would
constitute such special circumstances.”
101
(Footnotes omitted.)
[148] The fact that the
customary law rule under consideration for development here
implicates the rights to dignity and equality
does not distinguish
this case from
Lane.
In that case, too, rights in the Bill of
Rights, including the equality clause, were relied upon in
motivating the request for
the development of the common law. That
notwithstanding, this Court refused to develop the common law for
reasons already mentioned.
Therefore, in these circumstances there
is no justification I can think of for departing from the precedent
in
Lane
. Duplication of costs and time do not, in my view,
constitute special circumstances justifying this Court to deal with
the development
of Xitsonga customary law as a court of first and
last instance. More so because no party has asked for it.
[149] Recently, this Court
reaffirmed this principle in
Everfresh Market Virginia (Pty) Ltd
v Shoprite Checkers (Pty) Ltd.
102
In that case Moseneke DCJ said:
“
Everfresh
has to establish special circumstances that would justify this Court
being a court of first and last instance in a matter
that implicates
the development of the common law of contract. It has not done so.
It will be recalled that Everfresh did not
even advance any grounds
why it is in the interests of justice to grant leave to appeal. If
anything, several factors point against
this Court tackling the wide
ranging commercial intricacies related to renewal clauses in
existing leases. The adaptation of
the common law Everfresh urges
upon us includes at least four possibilities: recognising the
validity of a lease at a reasonable
rental; recognising an implied
(
ex
lege
)
term that rental is reasonable; requiring contracting parties who
have a discretion to negotiate to do so reasonably (
arbitrio
boni viri
);
or imposing a duty on the parties to negotiate in good faith. All
this we are urged to do without the benefit of the views
of the High
Court and of the Supreme Court of Appeal.
. . .
Everfresh has not advanced nor
can I find any special circumstances which would render it in the
interests of justice for this
Court to hear a claim for the
development of the common law of contract relating to a renewal
clause in a lease, as a court of
first and final instance.”
103
[150] Unlike the two cases
referred to above where the applicants raised for the first time in
this Court the issue of developing
the common law, in this case the
applicant did not seek the development of customary law. Nor was it
sought by the respondents.
Instead, the issue was raised by the
amicus. In my view, an amicus cannot raise an issue which the
parties themselves are not
permitted to raise. Moreover, no special
circumstances have been shown which justify the development of
customary law by this
Court as a court of first and last instance.
The same outcome of the case may be reached without the development
in question.
[151] In the present
circumstances the alleged customary marriage between Ms Ngwenyama
and the applicant’s late husband
may be declared invalid only
on two grounds. First, it may be annulled because Ms Ngwenyama has
failed to prove that the marriage
came into existence. Second, it
may be declared invalid because it was not “initiated and
celebrated” in terms of
Xitsonga customary law in that consent
of the first wife was not obtained before it was concluded. The
declaration of invalidity
based on either ground renders the
development of the relevant rule unnecessary. But a reliance on the
latter ground would mean
that the main judgment accepts that as at
the time of conclusion of the marriage concerned, consent of the
first wife was an
essential requirement. This is so because the main
judgment directs that the rule, as developed by it, will apply
prospectively.
Therefore, the declaration cannot be based on the
developed rule.
[152] However, the main
judgment finds that on the facts of this case, there was no
compliance with the customary law rule that
required the first wife
to be informed of the impending marriage, before the second marriage
was concluded.
104
Therefore, the second marriage is considered to be invalid “for
want of compliance with the requirements of Xitsonga custom
as it
existed at the time of the purported marriage.”
105
The difficulty with this finding is that it is based on the
customary law rule that required the first wife to be informed.
There is no evidence establishing that this particular rule applied
to the community of Ms Mayelane and her late husband. On the
contrary, there is overwhelming and undisputed evidence to the
effect that before the second marriage Xitsonga custom followed
by
that community required consent of the first wife for a subsequent
marriage to be valid. In my view this evidence ought not
to be
overlooked nor are there grounds I can think of on which it may be
rejected when it is not disputed by Ms Ngwenyama or
the second
respondent.
[153] Therefore the undisputed
facts show that Xitsonga customary law followed by the relevant
community already requires consent
of the first wife. This alone
renders the development of the rule unnecessary. This is more so, if
the reason given by the main
judgment for not dealing with a
situation where there is more than one wife, is taken into account.
The main judgment declined
to consider how the developed rule will
be applied in a case where a man has two or more wives, on the basis
that such a case
is not before us. The rule that requires the first
wife to be informed is similarly not before us and by parity of
reasoning
it ought not to be developed.
[154] The principle that the
Court should not determine a dispute as a court of first and last
instance is rooted in the proposition
that the losing party is
denied an opportunity to appeal which is guaranteed by the
Constitution.
106
Developing the customary law rule in present circumstances where we
have no information from those who follow the rule will seriously
disadvantage communities in which the rule applies. Our request to
these communities was for them to state the rule for the benefit
of
the Court. The directions we issued did not warn them that should we
find the rule furnished to be inconsistent with the Constitution,
we
will develop it without giving them a hearing.
107
[155] However, what is stated
in this judgment must not be taken as insulating customary law from
development. Indeed, our Courts
are obliged to develop both the
common law and customary law if they are found to be inconsistent
with the Constitution. The
question is whether the proper approach
is followed. As was observed in
Carmichele v Minister of Safety
and Security
,
108
the principles laid down by this Court
109
“become singularly compelling when the issue is whether or how
the common law is to be developed under section 39(2) of
the
Constitution, particularly when this Court has not previously been
required to do so.”
110
In
Christian Education South Africa
this Court said:
“
[T]he
exclusion of other courts from the exercise of a jurisdiction given
to them by the Constitution would clearly not be in
the general
interests of justice and the development of our jurisprudence.”
111
[156] The principles referred
to above cannot be outweighed by considerations of costs and time
which were not raised by any of
the parties to the present
litigation. Moreover, the argument that considerations of costs and
time may justify the development
of the common law in this Court as
a court of first and last instance was rejected in
Amod
.
112
All the cases referred to here constitute binding authority which
this Court must follow unless it is convinced that they were
wrong.
The main judgment does not say they were wrong nor does it
distinguish them from the present case.
[157] For these reasons I would
not grant the orders relating to the development of Xitsonga
customary law.
Annexure A
Summary of
Modjadji Florah Mayelane v Mphephu Maria Ngwenyama and
Another
2013 ZACC 14
for information purposes only.
The South African
Constitution guarantees that all people must be treated equally and
with human dignity. This means that husbands
and wives must have
equal rights in a marriage.
The Constitutional
Court has held that, if a man wishes to marry more than one wife
under Xitsonga custom, he must get consent from
his existing wife.
This means that his first wife must first agree to allow her husband
to marry another woman before he may do
so.
If the husband’s
first wife does not agree to allow him to marry another woman and the
husband decides to marry again without
her agreement, the new
marriage is not valid under law. This means that the new marriage is
not legal and the second woman will
not be considered the husband’s
wife under the Recognition Act (120 of 1998).
This rule applies to
all Xitsonga Customary marriages concluded after 30 May 2013. Any
Xitsonga customary marriages concluded before
this date are not
affected by this judgment.
For the Applicant: Advocate C da
Silva SC and Advocate T Masevhe instructed by Rammutla at Law Inc.
For the First Respondent:
Advocate N Maenetje SC and Advocate T Ntsonkota instructed by
Legal Aid South Africa.
For the First Amicus: Advocate S
Cowen and Advocate N Mji instructed by the Women’s Legal
Centre.
For the Second and Third Amici:
Advocate T Ngcukaitobi instructed by the Legal Resources Centre.
1
Polygyny
is “polygamy in which a man has more than one wife” as
compared to polyandry which is “polygamy in
which a woman has
more than one husband”.
Concise Oxford English Dictionary
11 ed
, revised (Oxford University Press, Oxford
2009
)
.
2
120
of 1998.
3
See
below for the text of section 7(6).
4
MG
v BM and Others
2012 (2) SA 253
(GSJ) (High Court judgment) at
paras 21-5 and
MN v
MM and Another
2012 (4) SA 527
(SCA) (Supreme Court of Appeal judgment) at para 11.
5
High
Court judgment above n 4 at paras 24-5.
6
See
below for text of section 3(1).
7
Supreme
Court of Appeal judgment above n 4 at paras 37-8.
8
Id
at para 11.
9
In
addition, the second and third amici applied for condonation for the
late filing of their application to be admitted as amici.
Condonation for the late filing of the application was granted by
this Court in an order dated 19 October 2012.
10
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[2000]
ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3.
11
Id.
12
Section
167(3)(b) read with section 167(6) of the Constitution. See also
Everfresh Market Virginia (Pty) Ltd v Shoprite
Checkers (Pty) Ltd
[2011] ZACC
30
;
2012 (1) SA 256
(CC);
2012 (3) BCLR 219
(CC)
at para 17 and
S v
Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC)
at
para 12.
13
Section
211 of the Constitution empowers Parliament to regulate customary
law by way of legislation.
14
Section
9 of the Constitution.
15
Id
section 10.
16
Id
section 211(3).
17
Id
section
39(2).
18
Mphahlele
v First National Bank of South Africa Ltd
[1999] ZACC 1
;
1999 (2) SA 667
(CC);
1999 (3) BCLR 253
(CC) at para
18;
Minister van Polisie v Van der
Vyver
[2013] ZASCA 39
at para 35;
Smith v Smith
2001 (3) SA 845
(SCA); and
Bay
Passenger Transport Ltd v Franzen
1975
(1) SA 269
(AD) at 278A-D
.
19
59
of 1959.
20
Section
211 reads:
“
(1)
The institution, status and role of traditional leadership,
according to customary law, are recognised, subject to the
Constitution.
(2) A traditional authority that observes a system of
customary law may function subject to any applicable legislation and
customs,
which includes amendments to, or repeal of, that
legislation or those customs.
(3) The courts must apply customary law when that law
is applicable, subject to the Constitution and any legislation that
specifically
deals with customary law.”
21
Section
39(2) provides:
“
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights.”
See also
Bhe
and Others v Magistrate,
Khayelitsha, and Others (Commission For Gender Equality As
Amicus
Curiae
); Shibi v Sithole and Others; South African Human Rights
Commission and Another v President of the Republic Of South Africa
[2004] ZACC 17
;
2005 (1) SA 580
(CC);
2005 (1) BCLR 1
(CC) (
Bhe
)
at para 41 and
Ex Parte Chairperson of the Constitutional
Assembly: In re Certification of the Constitution of the Republic of
South Africa
,
1996
[1996] ZACC 26
; 1996 (4) 744 (CC);
1996 (10) BCLR 1253
(CC) (
Certification case
) at para 197.
22
Alexkor
Ltd and Another v Richtersveld Community and Others
[2003] ZACC
18
;
2004 (5) SA 460
(CC);
2003 (12) BCLR 1301
(CC) (
Alexkor
)
at para 51.
23
See
for example
Gumede v President of Republic of South Africa and
Others
[2008] ZACC 23
;
2009 (3) SA 152
(CC);
2009 (3) BCLR 243
(CC) at para 22. The other primary sources are legislation and the
common law.
24
Alexkor
above n 22 at paras 51 and 56.
25
Id
at para 51.
26
Id
at para 53.
27
Bhe
above n 21 at para 81.
28
Id
at paras 46 and 81.
29
Id
at para 45.
30
Id.
31
Id
at para 109.
32
Gumede
above n 23 at para 16.
33
Id
at paras 16-7.
34
Id
at para 21.
35
Id
at para 22.
36
Section
1 of the Recognition Act.
37
Id.
38
Gumede
above n 23 at para 18.
39
A
customary marriage is defined in section 1 of the Recognition Act as
“a marriage concluded in accordance with customary
law”.
In turn customary law is defined as “the customs and usages
traditionally observed among the indigenous African
peoples of South
Africa and which form part of the culture of those peoples”.
40
See
above.
41
Section
11(3)(b) of the Black Administration Act 38 of 1927, as amended by
section 1 of the Laws on Co-operation and Development
Amendment Act
91 of 1985.
42
Gumede
above n 23 at para 24.
43
Above
n 21 at paras 112-3. In other words, the regime, referred to above,
prescribed by the
Intestate Succession Act 81 of 1987
.
44
Gumede
above n 23 at paras 28-31.
45
Shilubana
and Others v Nwamitwa
[2008] ZACC
9
;
2009 (2) SA 66
(CC);
2008 (9) BCLR 914
(CC) (
Shilubana
)
at paras 67-87.
46
See
[25] above.
47
45
of 1988.
48
Above
n 22 at paras 52-3.
49
Alexkor
above n 22 at paras 53-4.
50
Shilubana
above n 45 at paras 44-9.
51
This
Court’s directions, dated 25 February 2013, stated in relevant
part—
“
1.
The parties and the amici are invited to file statements by way of
affidavit or affirmation on the issues described in paragraph
2
below. The statements must be lodged by 22 March 2013.
2. The above statements must address the following
questions:
(i) under Tsonga customary law, is the consent of a
first wife a requirement for the validity of subsequent customary
marriages
entered into by that first wife’s husband;
(ii) if so—
(a) what are the requirements, if any, regarding the
manner and form of this consent; and
(b) what are the consequences, if any, of the failure
to procure the first wife’s consent or of any defects in
relation
to the manner or form of the consent?
3. The above sworn statements must have due regard to
and adequately reflect authoritative sources of customary law, which
sources
may include writers on customary law, case law, testimony
from traditional leaders and other expert evidence.”
52
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997
(11) BCLR 1489
(CC) at para 54 (
Harksen v Lane
).
53
President
of the Republic of South Africa and Another v Hugo
[1997] ZACC
4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at para 41.
54
Fraser
v Children’s Court, Pretoria North and Others
[1997] ZACC
1
;
1997 (2) SA 261
(CC);
1997 (2) BCLR 153
(CC) at para 20.
55
116
of 1998.
56
Or
any person who is or has been in a domestic relationship.
57
By
the
General Law Fourth Amendment Act 132 of 1993
.
58
Sections
18
-
20
of the Children’s Act 38 of 2005.
59
S
v Makwanyane
and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 144.
60
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA
936
(CC);
2000 (8) BCLR 837
(CC) at para 35 (emphasis removed).
61
Gumede
above n 23 at para 19. See also Nhlapo “African customary law
in the interim Constitution” in Liebenberg (ed)
The
Constitution of South Africa from a Gender Perspective
(Community
Law Centre: University of the Western Cape, Cape Town 1995) at 160.
62
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA
323
(CC);
2007 (7) BCLR 691
(CC) at para 57.
63
See
section 211(3) of the Constitution, quoted above n 20.
64
Id
section 1.
65
Id
sections 9 and 10.
66
Gumede
above n 23 at para 24.
67
Id
at para 32.
68
Section
3(1)(a)(ii) of the Recognition Act.
69
For
customary marriages entered into after the commencement of the
Recognition Act see section 7(2).
70
Section
6 of the Recognition Act.
71
Van
Heerden, Cockrell and Keightley (eds)
Boberg’s Law of
Persons and the Family
(Juta & Co Ltd, Kenwyn 1999) at 65.
72
Section
9(1) of the Constitution.
73
Section
2(2)(b) and (c) of the Reform of Customary Law of Succession and
Regulation of Related Matters Act 11 of 2009.
74
Section
5(5)
of the
South African Citizenship Act 88 of 1995
.
75
Section
26 of the Marriage Act 25 of 1961.
76
Section
10 of the Civil Proceedings Evidence Act 25 of 1965.
77
This
is subject only to the matrimonial property system governing the
marriage.
78
Vatsonga
refers to the Tsonga people. The Vatsonga speak Xitsonga.
79
The
order of the High Court read thus:
“
It is ordered:
Declaring a customary marriage between Hlengani Dyson
Moyana ‘the deceased’ and first respondent null and
void
ab initio.
Directing the second respondent to register the
marriage between the applicant and the deceased Hlengani Dyson
Moyana, Id. No.
570108 5803 08 6.
That the costs of this application if opposed.”
80
120
of 1998.
81
[2008]
ZACC 9
;
2009 (2) SA 66
(CC);
2008 (9) BCLR 914
(CC).
82
Id
at para 46.
83
Id
(footnote omitted).
84
Id.
85
The
reason why I refer to the customs and usages traditionally observed
by the relevant group which forms part of the culture
of that group
is the definition of “customary law” in section 1 and
the fact that the requirement in section 3(1)(b)
of the
Recognition Act refers to customary law.
86
Plascon-Evans
Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E-635C (
Plascon-Evans
).
87
Rule
31 reads as follows:
“
(1) Any party
to any proceedings before the Court and an
amicus
curiae
properly admitted by the Court in any proceedings shall be entitled,
in documents lodged with the Registrar in terms of these
rules, to
canvass factual material that is relevant to the determination of
the issues before the Court and that does not specifically
appear on
the record: Provided that such facts—
(a) are common cause or otherwise incontrovertible; or
(b) are of an official, scientific, technical or
statistical nature capable of easy verification.
(2) All other parties shall be entitled, within the
time allowed by these rules for responding to such document, to
admit, deny,
controvert or elaborate upon such facts to the extent
necessary and appropriate for a proper decision by the Court.”
88
Health
Professions Council of SA v De Bruin
[2004]
4 All SA 392
(SCA) at para 23. See also
Tikly
and Others v Johannes, N.O., and Others
1963
(2) SA 588
(T) at 590H and
Commercial
Staffs (Cape) v Minister of Labour and Another
1946
CPD 632
at 638-41.
89
It
is clear from Professor Boonzaaier’s evidence that his
statement that the consent of the first wife is not a requirement
is
based on the case on which he has relied for that statement.
However, in my view that case does not provide support for Professor
Boonzaaier’s view. The case actually supports the opposite
view. Logic dictates that, if the first wife’s consent
was not
a requirement for the validity of a subsequent marriage between her
husband and another woman, it would not be necessary
to end her
marriage to her husband before he could enter into another marriage
with another woman. The man could simply enter
into a further
marriage with another woman while his marriage with his first wife
continued. A divorce or termination of the
first wife’s
marriage would be required only if the wife’s consent was a
requirement. The divorce would be resorted
to in order to enable the
man not to need her consent for his marriage to another woman
because, once her marriage has been ended,
she would no longer be
his first wife or wife and, therefore, her consent would no longer
be required. I, therefore, conclude
that the basis advanced by
Professor Boonzaaier for his statement that the first wife’s
consent is not required is not
sound.
90
Main
judgment at [61] above.
91
Id.
92
Id.
93
(a)
read with (b) and (h) in the main judgment at [61] above.
94
The
judgment prepared by Froneman, Khampepe and Skweyiya JJ.
95
Main
judgment at [75].
96
Zondo
J’s judgment at [105].
97
Shilubana
and Others v Nwamitwa
[2008] ZACC 9
;
2009 (2) SA 66
(CC);
2008
(9) BCLR 914
(CC) (
Shilubana
).
98
Bhe
and Others v Magistrate, Khayelitsha, and Others (Commission For
Gender Equality As
Amicus Curiae
); Shibi v Sithole and
Others; South African Human Rights Commission and Another v
President of the Republic Of South Africa
[2004] ZACC 17
;
2005
(1) SA 580
(CC);
2005 (1) BCLR 1
(CC) (
Bhe
)
99
Section
36 of the Constitution provides:
“
(1)
The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation
is
reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom, taking into account
all
relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any
other provision of the Constitution, no law may limit any right
entrenched
in the Bill of Rights.”
100
[2001]
ZACC 14
;
2001 (2) SA 1187
(CC);
2001 (4) BCLR 312
(CC) (
Lane
).
101
Id
at para 5.
102
[2011]
ZACC 30
;
2012 (1) SA 256
(CC);
2012 (3) BCLR 219
(CC).
103
Id
at paras 64 and 67.
104
Main
judgment at [86].
105
Id.
106
Bruce
and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC
3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC).
107
The
directions issued by the Court provided in relevant part:
“
1.
The parties and the amici are invited to file statements by way of
affidavit or affirmation on the issues described in paragraph
2
below. The statements must be lodged by 22 March 2013.
2. The above statements must address the following
questions:
(i) under Tsonga customary law, is the consent of a
first wife a requirement for the validity of subsequent customary
marriages
entered into by that first wife’s husband;
(ii) if so—
(a) what are the requirements, if any, regarding the
manner and form of this consent; and
(b) what are the consequences, if any, of the failure
to procure the first wife’s consent or of any defects in
relation
to the manner or form of the consent?
3. The above sworn statements must have due regard to
and adequately reflect authoritative sources of customary law, which
sources
may include writers on customary law, case law, testimony
from traditional leaders and other expert evidence.”
108
[2001]
ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC).
109
Amod
v Multilateral Motor Vehicle Accidents Fund
[1998] ZACC 11
;
1998
(4) SA 753
(CC);
1998 (10) BCLR 1207
(CC) at para 35 and
Christian
Education South Africa v Minister of Education
[1998] ZACC 16
;
1999 (2) SA 83
(CC);
1998 (12) BCLR 1449
(CC) at para 9.
110
Carmichele
above n 14 at para 53.
111
Christian
Education South Africa
above n 15 at para 9.
112
Above
n 15 at para 33. A unanimous judgment by Chaskalson P.