THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 474/2011
Reportable

In the matter between:

MPHEPHU MARIA NGWENYAMA

Appellant

and

MODJADJI FLORAH MAYELANE                               First Respondent

MINISTER OF HOME AFFAIRS

Second Respondent

Neutral citation:
Ngwenyama v Mayelane & another (474/11) [2012]
ZASCA 94 (1 June 2012)

Coram:

MTHIYANE DP, PONNAN JA et NDITA AJA

Heard:

14 May 2012

Delivered:

1 June 2012

Summary: Customary marriages – polygamy- Interpretation- s 7(6) of the
Recognition of Customary Marriages Act 120 of 1998- whether failure by the
husband to enter into a contract regulating matrimonial property renders
subsequent customary marriage invalid – provisions of s 7(6) not intended to
invalidate subsequent customary marriage.

______________________________________________________________
ORDER
______________________________________________________________

On appeal from:
North Gauteng High Court, Pretoria (Bertelsmann J sitting
as court of first instance):
The appeal succeeds partially to the extent that the order of the court
below is set aside and replaced with the following:
'(a) Prayer (a) of the notice of motion (declaring a customary marriage
between Hlengani Dyson Moyana (the deceased) and the First
Respondent null and void ab initio ) is dismissed.
(b) Prayer (b) (directing the Second Respondent to register the
marriage between the applicant and the deceased Hlengani Dyson
Moyana nin: 5701085803086) is granted.
(c) Each party is ordered to pay its own costs.'
2.
There is no order as to costs.

______________________________________________________________

JUDGMENT
______________________________________________________________

NDITA AJA (MTHIYANE DP, PONNAN JA concurring)

Introduction

[1] This appeal concerns the interpretation of s 7(6) of the Recognition of
Customary Marriages Act1 (the Act). The section regulates the proprietary
consequences of a customary marriage in circumstances where the husband

1 Recognition of Customary Marriages Act 120 of 1998.

wishes to enter into a second customary marriage. The appeal comes before
us with the leave of the court a quo.

[2] The first respondent, Ms Mdjadji Florah Mayelane, as applicant,
instituted motion proceedings against the appellant, Ms Mphephu Maria
Ngwenyama, in the North Gauteng High Court in which she sought an order
(a) declaring the customary marriage contracted between the appellant and
Hlengani Dyson Moyana (the deceased) null and void ab initio; (b) directing
the second respondent to register the customary marriage between the first
respondent and the deceased and (c) costs. Bertelsmann J granted the
application. The second respondent, Minister of Home Affairs, filed a notice to
abide the decision of the and consequently does not feature any further in this
appeal. Any reference to the respondent should be understood to refer to the
first respondent. The judgment in the court a quo is reported as MM v MN &
another 2010 (4) SA 286 (GNP).

The Facts

[3] The facts and circumstances relating to this appeal are as follows: The
respondent was married to the deceased, according to customary law and
tradition at Nkovani Village, Limpopo, on 1 January 1984. Three children, all
now majors, were born out of the union. The marriage was not registered. The
deceased died on 28 February 2009 and the marriage was still subsisting.
When the respondent sought to register the customary union at the
Department of Home Affairs after the death of the deceased, she was advised
that the appellant had also sought to register a customary marriage allegedly
contracted between her and the deceased on 26 January 2008. The
respondent asserts that the purported marriage between the deceased and
the appellant was null and void ab initio as she had not been consulted before
it was concluded and the deceased had failed to comply with s 7(6) the Act of
which provides that a husband in a customary marriage who wishes to enter
into a further customary marriage with another woman must apply to the court
to approve a written contract governing the proprietary consequences of the
marriages.

[4] The deceased‘s elder brother, Mr Mzamani Temson Moyana, deposed
to an affidavit confirming the respondent‘s marriage to the deceased. In
addition, he stated that in terms of their custom and tradition, the first wife
must be consulted before a second customary marriage is concluded, and
such a marriage should be witnessed by the husband‘s blood relatives.

Section 7(6)

[5] Section 7(6) provides as follows:
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.‘

[6] It is common cause that the marriage contracted between the appellant
and the deceased was not preceded by an application for an order approving
a contract regulating the future matrimonial system of both marriages.

In the high court

[7] Bertelsmann J, considered the equal status and capacity afforded to
spouses in a customary marriage and came to the conclusion that s 7(6) is
aimed at protecting the proprietary interests of both the existing and
prospective spouse. He emphasised the prejudice likely to be suffered by the
existing spouse where the second marriage has not been disclosed, dealt with
by the contract and sanctioned by the court and held thus:
‗The failure to comply with the mandatory provisions of this subsection cannot but
lead to the invalidity of a subsequent customary marriage, even though the Act does
not contain an express provision to that effect. Cronje and Heaton argue in South
African Family Law 2ed at 204, that the court‘s intervention would be rendered
superfluous - which the legislature could not have intended - if invalidity did not
result from a failure to observe ss (6).‘

However, he found that the failure of the husband to comply with the
provisions of s 7(6) rendered the second customary marriage null and void
ab initio as the provisions of the section are peremptory.
The learned judge continued at para 25:
‗A further argument, that failure to comply with the subsection leads to invalidity of
the subsequent further customary marriage, arises from the peremptory language of
the provision: the word ‗must‘, read with the provisions of subsection (7)(b)(iii),
empowering the court to refuse to register a proposed contract, indicates that the
legislature intended non-compliance to lead to voidness of a marriage in conflict with
the provision.‘

The issues

[8] The core issue in this appeal turns on whether the failure by the
husband to make an application to court to approve a written contract
regulating the matrimonial property system of both the first and second
marriages, as envisaged in s 7(6) of the Act, invalidates the subsequent
customary marriages from inception, in the absence of an express provision in
the Act to that effect.

In this court

[9] At the hearing of this appeal, counsel for the appellant submitted that
the conclusion arrived at by the court below as to the consequences of non-
compliance with s 7(6) is incorrect because the section is not peremptory.
Moreover, it could not have been the intention of the legislature, said counsel
to effect so fundamental a change to the customary law of polygamy by
subjecting the validity of a second marriage to prior
consent by a court,
which could withhold it. Relying on two decisions of the Constitutional Court in
Hassam v Jacobs NO 2 and Gumede v President of the Republic of South
Africa 3  counsel for the appellant further argued that the interpretation

2 Hassam v Jacobs NO & others 2009 (5) SA 572 (CC).
3 Gumede v President of the Republic of South Africa & others 2009 (3) SA 152 (CC).

accorded to the section by the court a quo is in conflict with s 39(2) of the
Constitution.4

[10] The Women‘s Legal Trust was admitted as amicus curiae. Counsel for
the amicus aligned herself with the appellant‘s submissions and added,
basing her argument on Brink v Kitshoff NO, 5  that the court a quo, in
interpreting the provisions of s 7(6) was enjoined to consider historical
inequalities based on race, gender, marital status and class, as well the
realities of women married under customary law generally and women in
polygamous marriages, in particular. She further contended that an
interpretation that renders the second customary marriage invalid
undermines the subsequent wife‘s right to dignity and equality. The amicus
outlined the harsh impact of invalidating an otherwise valid customary
marriage in three stages: viz divorce, death and succession as well as social
standing of the second wife and her children. According to the amicus, the
interpretation accorded to s 7(6) by the court a quo gives priority to the rights
of the first wife and in so doing defeats the purpose of the Act to protect all
wives in polygamous marriages by creating a mechanism for a certain and
equitable matrimonial property regime. Such an interpretation is, so went the
argument, at odds with the Constitution and the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW) ratified
without reservation by the Republic of South Africa in 1996.

[11]  The respondent‘s counsel in his turn argued that the appellant, on the
facts presented failed to establish that her customary marriage to the
deceased was valid. Although this issue was debated in court, I must at the
outset state that this court need not decide it as there is no cross-appeal
challenging the finding of the court a quo on its acceptance of the validity of
the second customary marriage. It was further submitted on behalf of the
respondent that s 7 (6) was aimed at protecting the interests of the existing

4The Constitution of the Republic of South Africa, 1996.
5 Brink v Kitshoff NO 1996 (4) SA 197 (CC) para 44.

wife, it is for that reason that she must be joined in the proceedings
determining the proposed contract regulating the matrimonial property. I deal
with this issue in my conclusion.
Discussion
[12] The stated purpose of the Act is:
‗To make provisions for the recognition of customary marriages; to specify the
requirements for a valid customary marriage; to regulate the registration of
customary marriages; to provide for the equal status and capacity of spouses in
customary marriages; to regulate the proprietary consequences of customary
marriages and the capacity of spouses of such marriages.‘
In short, the Act marks a significant break from the past when customary,
and more particularly polygamous marriages were considered repugnant to
public policy. In so doing it seeks to protect and advance the rights of women
married in accordance with customary law and tradition. To this end, the
Constitutional Court in Gumede v President of the Republic of South Africa6
restated the purpose of the Act as follows:
‗The Recognition Act is inspired by the dignity and equality rights that the
Constitution entrenches and the normative value systems it establishes. It is also
necessitated by our country‘s international treaty obligations, which require member
states to do away with all laws and practices that discriminate against women …‘
What is clear is that s 7(6) is intended to protect matrimonial property rights
of the spouses by ensuring a fair distribution of the matrimonial property in
circumstances where a husband is desirous of entering into a further
customary marriage.

[13] I have indicated earlier in this judgment that the court below based its
finding that the second marriage was null and void on the peremptory
language of s 7(6). The section states in plain language that a husband

6 Gumede v President of the Republic of South Africa fn 3 supra para 21.

‗must‘ prior to contracting the further marriage enter into a contract regulating
the future marital property system of his marriages which must be approved
by the court. There is however no sanction for the failure to comply with s
7(6) because none was intended.

[14] The court a quo concluded that the use of the word ‗must‘ indicates
that the legislature intended non-compliance with s 7(6) to invalidate a
subsequent customary marriage. It is trite that the primary rule in the
construction of a statutory provision is to ascertain the intention of the
legislature by giving words of the provision under consideration the ordinary
grammatical meaning which their context dictates, unless to do so would lead
to an absurdity the legislature could not have contemplated.  The language
used is but one of the ways of determining the intention of the legislature, so
is the aim and purpose of that particular provision. Whilst words must be
given their ordinary meaning a contextual and purposive reading of the
statute is also important. This is more so in the circumstances of the instant
matter, where it is alleged that the interpretation accorded by the court below
offends some of the rights enshrined in the Constitution. Ngcobo J in Bato
Star7 explains the importance of context in statutory interpretation as follows:
‗Certainly no less important than the oft-repeated statement that the words and
expressions used in a statute must be interpreted according to their ordinary
meaning is the statement that they must be interpreted in the light of their context.
But it may be useful to stress two points in relation to the application of this principle.
The first is that ―the context‖ as here used, is not limited to the language of the rest
of the statute regarded as throwing light of a dictionary kind on the part to be
interpreted. Often of more importance is the matter of the statute, its apparent scope
and purpose, and, within limit, its background.‘

7 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & others 2004 (4) SA 490 (CC),
para 89 citing Jaga v Dönges 1950 (4) SA 653 (A).

[15] Counsel for the appellant emphasised that when regard is had to the
purpose and object of the Act, the court a quo ought to have considered the
provisions of s 39(2) of the Constitution which state that:
‗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.‘
The Constitutional Court in Investigating Directorate: Serious Economic
Offences & others v Hyundai Motor Distributors (Pty) Ltd8 with reference to s
39(2) said:
‗The Constitution requires that judicial officers read legislation, where possible, in
ways which give effect to its fundamental values. Consistently with this, when the
constitutionality of legislation is in issue, they are under a duty to examine the
objects and purport of an Act and to read the provisions of the legislation, so far as
possible, in conformity with the Constitution.‘
This court has also repeatedly stressed the necessity to interpret legislation
and statutory provisions purposively.9 The objective set out in the preamble
of the Act can be best achieved by giving effect to s 39(2) of the Constitution.
The purpose of s 7(6)
[16] There are divergent views regarding the purpose and interpretation of s
7(6) and its impact on customary marriages. As earlier alluded to, the court a
quo reasoned that the fact that s 7(7)(b)(iii)10 empowers the court to refuse to
register a proposed contract indicates that the legislature intended non-
compliance to be visited with nullity. Citing Cronje and Heaton, South African
Family Law 2 ed at 204, the court further held that if a customary marriage

8 Investigating Directorate: Serious Economic Offences & others v Hyundai Motor Distributors
(Pty) Ltd & others; In re Hyundai Motor Distributors (Pty) Ltd & others v Smit NO & others
2001 (1) SA 545 (CC) para 22
9 Standard Bank Investment Corporation Ltd v Competition Commission & others; Liberty Life
Association of Africa Ltd v Competition Commssion & others 2000 (2) SA 797 (SCA) paras
16-22.
10 Section 7(b) (iii) provides that when considering the application in terms in terms of
subsection 6 the court must refuse the application if in its opinion the interests of any of the
parties involved would not be sufficiently safeguarded by means of the proposed contract.

were to remain valid in the face of non-compliance, the court‘s intervention
would be rendered superfluous and that could not have been the intention of
the legislature.  According to the learned authors referred to by the court a
quo, the husband‘s capacity to enter into a further customary marriage
depends upon the approval of the contract by the court. A different view is,
however, espoused by I P Maithufi and G M B Moloi 11 and the authors
conclude as follows:
‗It is further submitted that non-compliance with this requirement in these
circumstances will not lead to the nullity of the marriage and that such marriages will
be regarded as out of community of profit and loss. The main purpose of the
requirement is to avoid unnecessary litigation concerning property brought into the
marriage and property that may be acquired during the subsistence of the marriage.‘
Similarly, Pieter Bakker12 argues that:
‗The second marriage should therefore be valid even when the requirements of
section 7(6) have been disregarded. Non-compliance with section 7(6) will not affect
the first wife negatively where she was married out of community of property with
the exclusion of the accrual system. Where the first wife was married out of
community of property, the property system will continue after her spouse marries
his second wife. The only contract that can be drafted is an agreement to continue
with the marriage out of community of property. Therefore non-compliance will have
no effect on the first wife if the first marriage is out of community of property.‘

[17] Judicial decisions are also disharmonious with regard to the effect of
non-compliance with s 7(6) on a customary marriage. In MG v BM13 Moshidi
J had occasion to consider whether there was a valid customary marriage
between the deceased and the applicant. The learned judge concluded that
the marriage remained valid despite failure to comply with s 7(6) the
deceased husband, and declined to follow the decision of the court a quo, in
the instant matter. Moshidi J correctly stated that once there is a valid

11 The current legal status of customary marriages in South Africa,  2002 TSAR at 599
12 The New Unofficial Customary Marriage: Application of Section 7(6) of the Recognition of
Customary Marriages Act 120 of 1998 2007 (70) THRHR 482.
13 MG v BM & others 2012 (2) SA 253 (GSJ)

subsequent customary marriage, the second wife also acquires certain
rights. He further questioned why the second wife should be penalised or
prejudiced on account of the failure of the husband to comply with the
requirements of s 7(6), more so when the Act does not contain an express
provision invalidating customary marriages contracted without compliance
with the section. He held that the section could not be interpreted as
invalidating an otherwise valid customary marriage.

[18] The respondent relied on the judgment of Dlodlo J in Mrapukana v
Master of the High Court14  wherein the court stated, albeit obiter, that a man
who seeks to enter into a further customary marriage must first enter into a
written agreement that will set out the manner in which the material
possession and wealth of the family will be managed. Stated differently, the
contract is a prerequisite for the validity of the further customary marriage.
This statement is no more than a restatement of the section as Dlodlo J
understood it. Dlodlo J did not consider the impact of s 7(6) as it was not an
issue before him. Any reliance on this judgment is therefore misplaced.
Conclusion
[19] The purpose of the section must be determined in the light of the
legislative scheme which guided its promulgation. At the heart of the Act, is
the intention to advance the rights of women married according customary
law in order that they acquire rights to matrimonial property they did not have
before the enactment of the Act.  Effectively, the Act seeks to realise the right
to equality envisaged in the Bill of Rights. With this in mind, it becomes
difficult to reason that s 7 (6) could be intended solely for the protection of the
wife in an existing marriage. The court a quo correctly considered and
acknowledged the equal status and capacity afforded to spouses in a
customary marriage and came to the conclusion that s 7(6) is aimed at
protecting the proprietary interests of both the existing and prospective
spouses, but failed to afford a purposive interpretation to the section so that

14 Mrapukana v Master of the High Court & another [2008] JOL 22875 (C).

second wife is equally protected. Properly construed s 7(6) is for the benefit
women in both monogamous and polygamous customary marriages. This
much is obvious from the wording of s 2(3) which provides:
‗If a person is a spouse in more than one customary marriage, all valid customary
marriages entered into before the commencements of this Act are for all purposes
recognised as marriages.‘
It follows that whatever protection is afforded to women married according to
customary law equally applies to women in polygamous marriages.  I am
fortified in this view by the dictum in Hassam v Jacobs NO15 where Nkabinde
J said:
‗By discriminating against women in polygynous Muslim marriages on the grounds of
religion, gender and marital status, the Act clearly reinforces a pattern of stereotyping
and patriarchal practices that relegates women in these marriages to being unworthy
of protection. Needless to say, by so discriminating against those women, the
provisions in the Act conflict with the principle of gender equality which the
Constitution strives to achieve. That cannot, and ought not, be countenanced in a
society based on democratic values, social justice and fundamental human rights.
The purpose of the Act would clearly be frustrated rather than furthered if widows to
polygynous Muslim marriages were excluded from the benefits of the Act simply
because their marriages were contracted by virtue of Muslim rites. The constitutional
goal of achieving substantive equality will not be fulfilled by that exclusion. These
women, as was the case with the applicant, often do not have any power over the
decisions by their husbands whether to marry a second or a third wife.
It follows therefore that the exclusion of widows in polygynous Muslim marriages from
the protection of the Act is constitutionally unacceptable because it excludes them
simply on the prohibited grounds. In any event, it would be unjust to grant a widow in
a monogamous Muslim marriage the protection offered by the Act and to deny the
same protection to a widow or widows of a polygynous Muslim marriage.‘

15 Fn 2 supra paras 37-39.

[20] Although the above was stated in the context of polygynous Muslim
marriages, by parity of reasoning, it equally applies to polygynous marriages
concluded in accordance with customary law. It will be recalled that the Act
was promulgated in response to constitutional values and human rights, more
specifically the right to equality and non-discrimination. If this court were to
uphold the interpretation of s 7(6) adopted by the court a quo, it would be
seriously undermining the very equality that the Act seeks to uphold.

[21] The discriminatory interpretation of s 7(6) excluding women in
polygamous marriages, validly married according to customary law, and
recognised as such in their communities is deeply injurious to women in such
marriages as it affects them negatively. Such women would be adversely
affected in the areas of, inter alia, succession, death and social standing. It
constitutes a gross and fundamental infringement of their right to dignity, right
to equal status in marriage as well as the rights to physical and emotional
integrity. The effect extends to children born of such a marriage, who would,
by virtue of the interpretation accorded to s 7(6) by the court a quo, be
instantly rendered illegitimate. The harsh consequences of such a declaration
on the children are unthinkable. Furthermore, such an interpretation would be
in stark contrast with the manner in which the people affected live their lives.
For example, if all the requirements of a customary marriage have been
complied with and the wife is for all intents and purposes socially recognised
as a wife, and non-compliance with the section renders her unmarried, that
would be out of step with the living customary law. The very purpose for which
the Act was intended, equality of recognition and spouses of customary
marriages, would be defeated. An interpretation that renders a polygamous
customary marriage recognised in customary law invalid, is clearly untenable
and could not have been intended by the legislature. In line with the purposive
approach outlined in Hyundai, that courts must prefer an  interpretation of
legislation that falls within the constitutional bounds over that which does not,
if such an interpretation can be reasonably ascribed to the section, it follows
that the decision of the court a quo cannot be confirmed.

[22] The section of the Act dealing with validity of a customary marriage
(s 3) is not by any means related or linked to s 7(6). In striking a balance
between the text and context of the Act, the preamble states the purpose the
Act seeks to achieve and specifically refers to the validity of customary
marriages. The requirements for validity of a customary marriage in s 3(1) are
simply that:
(i)
the spouses must be above the age of 18 years; and
(ii)
both must consent to be married to each other under customary law;

and
(iii)   the marriage must be negotiated and entered into or celebrated in
accordance with customary law.

[23] The Act does not specify the requirements for the celebration of a
customary marriage. In this way, the legislature purposefully defers to the
living customary law. Put differently, this requirement is fulfilled when the
customary law celebrations are generally in accordance with the customs
applicable in those particular circumstances. But once the three requirements
have been fulfilled, a customary marriage, whether monogamous or
polygamous, comes into existence. Notwithstanding the absence of a
sanction for non-compliance with s 7(6) the scheme of the Act and the
broader context of the statute compels a conclusion that the section could
never have been intended to have any impact on the validity of the second
marriage. This scheme of the Act amply demonstrates that the main purpose
of the s 7(6) is to determine and regulate proprietary consequences and does
not seek to invalidate an otherwise valid polygamous customary marriage,
which complies with s 3.  The underlying theme of the whole of s 7 is fairness
and equity in dealing with the matrimonial property and not the validity of a
customary marriage. To this end s 7(7) provides that:
‗When considering the application in terms of subsection 6–

(a) the court must–
(i)
in the case of a marriage in community of property or which is subject
to the accrual system–
(aa)
terminate the matrimonial property system which is applicable to the
marriage; and
(bb)
effect a division of the matrimonial property; and
(ii)
ensure an equitable distribution of the property; and
(iii)
take into account all the relevant circumstances of the family groups
which would be affected if the application is granted;
(b)    the court may–
(i) allow further amendments to the terms of the contract;
(ii) grant the order subject to any condition it may deem just; or
(iii)  refuse the application if in its opinion the interests of any of the parties
involved would be not be sufficiently safeguarded by means of the
proposed contract.‘
Section 7(8) on the other hand entitles all persons having sufficient interest in
the matter, and in particular the applicant‘s existing spouse or spouses and
his prospective spouse, to be joined in the proceedings instituted in terms of
subsection (6). The joinder of spouses and prospective spouses shows that
the legislature intended to protect the rights of both wives. The duty to act in
compliance with s 7(6) is placed on the husband. It would be unjust to
invalidate an otherwise valid marriage on the basis of the husband‘s failure
when no duty was placed on the wife.

[24] On the interpretation advanced on behalf of the respondent, the
requirements of s 7(6) must precede the conclusion of a further customary
marriage; otherwise, the marriage is invalid. This submission must be

considered in the historical context of customary marriages as articulated by
Masoneke DCJ in Gumede16as follows:
‗Before I confront the equality claim, it may be helpful to discuss up-front the
operative statutory arrangements. The Recognition Act was assented to and took
effect well within our new constitutional dispensation. It 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. Past courts
and legislation accorded marriages under indigenous law no more than a scant
recognition under the lowly rubric of customary ―unions‖.‘
The learned judge continues at paragraph 24:
‗I revert to consider the main and other purposes of the Recognition Act. Without a
doubt, the chief purpose of the legislation is to reform customary law in several
important ways. The facial extent of the reform is apparent from the extended title of
the Recognition Act. The legislation makes provision for recognition of customary
marriages. Most 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. It specifies essential requirements for a valid customary marriage and
the registration of marriages. In this way, it introduces certainty and uniformity to the
legal validity of customary marriages throughout the country.‘
The proper context of the Act is elucidated above. Clearly the determination of
s 7(6) must be in a manner that is consistent with the Constitution. An
interpretation which holds that s 7(6) affects the validity of a subsequent
marriage relegates customary marriages, once again, to the very status the
Act sought to elevate it from as, based on it, there would be no second
customary marriage without the approval of the court. Concerns about
proprietary interests are sufficiently addressed in the Act as courts have been
given a wide discretion to determine what is just and equitable in a given
case. I have in this judgment already stated that a purposive interpretation of
this section compels a conclusion that the legislature did not intend non-
compliance to invalidate a valid customary marriage.

16 Supra fn 6 para 16

[25] The amicus curiae drew the attention of the court to human rights
instruments pointing to the vulnerability of women generally, and women in
polygamous marriages in particular. Article 16 of CEDAW obliges the country
to take all appropriate measures to eliminate discrimination against women in
all matters relating to marriage and family relations. Similarly, Article 6(b) of
the Protocol to the African Charter on Human and People‘s Rights in Africa to
which the country is a signatory obliges state parties to enact appropriate
national legislative measures to guarantee that the rights of women in
marriage and family, including polygamous marital relationships are promoted
and protected.
The above human rights instruments support the purpose of the Act. In my
view, by addressing the relevant clauses of the Act, the issue of equality and
polygamous marriage has been adequately addressed.
Costs
[26`] It is trite that generally, costs follow the result. However in Biowatch17
the court considered the impact of an award of costs on litigants wishing to
vindicate their rights under the Bill of Rights where the litigation is not frivolous
or vexatious. The rule is that the losing party is not mulcted in costs. The
rights the unsuccessful respondent sought to vindicate are neither frivolous
nor vexatious. In the circumstances the appropriate approach is to make no
order as to costs.

[27] It remains to mention that I have had the privilege to read the
concurring judgment of Ponnan JA and I find nothing different from what I
have already said. It is substantially a repetition of what I have said except for
what is contained in paragraph 5 and 10. For that reason, I concur in it.

17 Biowatch Trust v Registrar, Genetic Resources & others 2009 (6) SA 232 (CC) at 245C-249E.

[28] In the result the following order is made:
Order
1. The appeal succeeds partially to the extent that the order of the court
below is set aside and replaced with the following:
'(a) Prayer (a) of the notice of motion (declaring a customary marriage
between Hlengani Dyson Moyana (the deceased) and the First
Respondent  null and void ab initio ) is dismissed.
(b) Prayer (b) (directing the Second Respondent to register the
marriage between the applicant and the deceased Hlengani Dyson
Moyana nin: 5701085803086)  is granted.
(c) Each party is ordered to pay its own costs.'
2.
There is no order as to costs.

________________________

T NDITA

ACTING JUDGE OF APPEAL

PONNAN  JA

[29] Is a further customary marriage entered into without compliance with
the provisions of s 7(6) of the Recognition of Customary Marriages Act 120 of
1998 (the Recognition Act) null and void ab initio? That is the crisp yet rather
vexing question that confronts us. The high court (per Bertelsmann J) held
that it was. It is the correctness of that conclusion that forms the subject of this
appeal. Ndita AJA has reached a contrary conclusion to that of the high court
– a conclusion with which I am in respectful agreement. Given the complexity
of the matter, however, as also its importance to a particularly vulnerable

class of persons who, more often than not, are victims of deep patterns of
disadvantage, I prefer to articulate separately the considerations that impelled
me to that conclusion.

[30] The Recognition Act is inspired by the dignity and equality rights that
the Constitution entrenches and the normative value system it establishes
(Gumede v President of Republic of South Africa & others 2009 (3) SA 152
(CC) para 21). According to Moseneke DCJ (Gumede para 16):
'It 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. Past courts and legislation
accorded marriages under indigenous law no more than a scant recognition
under the lowly rubric of customary "unions".'

[31] The chief purpose of the Recognition Act is to reform customary law in
several important ways. As Moseneke DCJ (Gumede para 24) put it:
'The facial extent of the reform is apparent from the extended title of the
Recognition Act. The legislation makes provision for recognition of customary
marriages. Most 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. It specifies the essential requirements for a
valid customary marriage and regulates the registration of marriages. In this
way, it introduces certainty and uniformity to the legal validity of customary
marriages throughout the country. The Recognition Act regulates proprietary
consequences and the capacity of spouses and governs the dissolution of the
marriages, which now must occur under judicial supervision. An additional
and significant benefit of this legislative reform is that it seeks to salvage the
indigenous law of marriage from the stagnation of official codes and the
inscrutable jurisprudence of colonial "native" divorce and appeal courts.'

[32] Section 7(6) must be interpreted in the context of the scheme of the
Recognition Act as a whole. The Recognition Act defines a customary
marriage as 'a marriage concluded in accordance with customary law'. And
customary law 'means the customs and usages traditionally observed among
the indigenous African peoples of South Africa and which forms part of the
culture of those people'. Section 2(2) provides that:
'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.'
And s 2(4) reads:
'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.'
Section 3 headed 'Requirements for validity of customary marriages',
provides:
'(1)
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.'

[33] In terms of s 3(5) of the Act, s 24A of the Marriage Act 25 of 1961 is
rendered applicable to the marriage of a minor entered into without the
necessary consent. According to the latter provision a marriage between
persons of whom one or both are minors shall not be void merely because the
person whose consent is by law required for the entering into of a marriage
did not consent to the marriage, but may be dissolved by a competent court
on the ground of want of consent if application is made to it. Even then a court
shall not grant the application unless it is satisfied that the dissolution of the
marriage is in the interests of the minor or minors. A valid customary marriage

must be registered in terms of s 4 of the Act. Section 4(9) makes it clear
though that failure to register a customary marriage does not per se affect the
validity of that marriage.

[34] Section 6, which appears to 'usher in a remedial regime of equal worth
and capacity of spouses in customary marriages‘ (Gumede para 25),
provides:
'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.'
And finally, s 7(6), which applies to marriages concluded after the Act came
into force and which is located in that part of the Act headed: 'Proprietary
consequences of customary marriages and contractual capacity of spouses',
provides:
'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.'

[35] The Recognition Act has to be interpreted in a manner that promotes
the spirit, purport and objects of our Bill of Rights. This duty is one in respect
of which 'no court has a discretion' (Phumelela Gaming and Leisure Ltd v
Grünlingh and others 2007 (6) SA 350 (CC) para 26 and 27). In Brink v
Kitshoff NO 1996 (4) SA 197 (CC) para 44, O‘Regan J had this to say:
'Although in our society discrimination on grounds of sex has not been as
visible, nor as widely condemned, as discrimination on grounds of race, it has
nevertheless resulted in deep patterns of disadvantage. These patterns of
disadvantage are particularly acute in the case of black women, as race and
gender discrimination overlap. That all such discrimination needs to be
eradicated from our society is a key message of the Constitution. The

preamble states the need to create a new order in "which there is equality
between men and women" as well as equality between "people of all races".'

[36] Viewing the scheme of the Recognition Act as a whole therefore, it is
plain that   s 7(6) of the Act does not purport to regulate the validity of
polygnous customary marriages. That is sought to be achieved by s 3.
Section 7(6) appears on the face of it to regulate the proprietary
consequences of such a marriage. The Act itself does not contain an express
provision to the effect that non-compliance with s 7(6) results, without more, in
invalidity of the second customary marriage. The court below, however,
appeared to reason that the use of the word 'must' in the subsection means
that the section is peremptory and that invalidity must follow as a natural
consequence of non-compliance. There are strong indications and reasons
why non-compliance with s 7(6) ought not to result in the second customary
marriage being a nullity.

[37] First, when determining an application in terms of s 7(6), a court is
required by s 7(7) to terminate the existing matrimonial property system if the
earlier marriage was in community of property or subject to the accrual
system and to effect a division of the matrimonial property. The consequence
of a failure to comply with the provisions of the section therefore is that the
matrimonial property system existing before the conclusion of the second
customary marriage continues in existence and is not terminated by the
conclusion of the second marriage. This ought to adequately protect the rights
of the first spouse whilst leaving in place and valid the subsequent customary
marriage, with all of the attendant consequences and advantages of marriage.
Second, a nullity means that a court is not entitled at all, irrespective of the
particular circumstances of a case, to condone non-compliance with the
provisions of s 7(6) of the Act. The effect of non-compliance will thus be that
all subsequent marriages, irrespective of the circumstances, would be null
and void ab initio. Such a harsh and indiscriminate result could hardly have
been intended by the legislature. Nor, it seems to me, can it be countenanced

by our Constitution. Third, although no obligation is imposed on either the first
or subsequent wife by the legislature (the obligation to apply to court being
placed solely upon the husband), the potential hardship is visited on the wife
of the subsequent marriage. The potential hardships include the potential for
the alteration of the status of: a woman, who may since the inception of her
marriage have conducted herself as a married woman, to that of a concubine;
and her children from that of legitimate to illegitimate. In either event the
consequential social stigma and legal disability may cause irreparable harm to
the woman and her children. Fourth, the considerations as to illiteracy that
persuaded the court below to interpret the requirements of s 7(6) to protect
the first wife's fundamental rights, apply equally to the second wife. Fifth, it
could not have been the intention of the legislature to effect a fundamental
change to the customary law incident of polygyny by subjecting the validity of
a second marriage effectively to prior consent by a court which could be
withheld by it. Sixth, s 7(6) does not appear in that part of the Recognition Act
which prescribes the requirements for the validity of customary marriages.
Those requirements are to be found in s 3. And as I have already shown, non-
compliance with those requirements that the legislature has itself designated
as requirements for the validity of a customary marriage does not
automatically result in nullity. Why then, it must be asked, would non-
compliance with s 7(6).  Seventh, an interpretation that visits nullity on a
marriage concluded in breach of s 7(6) will perpetuate inequalities and
patterns of disadvantage between men and women. It both fails to afford
parties married in accordance with African custom, equal protection and
benefit of the law and it constitutes discrimination against women in second or
subsequent polygynous marriages. Women in polygynous marriages, like the
rest of this country‘s citizenry, enjoy a right to dignity. They are entitled to
equal respect and protection by our society. It would fundamentally violate the
right to dignity of a woman in a second or subsequent marriage to nullify her
marriage otherwise valid under customary law, because her husband failed
either through ignorance or design to obtain a court order under s 7(6) of the
Act. It would also violate her right to equality. An interpretation that visits
nullity on marriages concluded in breach of s 7(6) differentiates between
women in second or subsequent polygynous marriages and those in first

marriages. The purpose of the differentiation would, according to the court
below, be to protect a first wife. However, the Recognition Act, as I have
sought to show is designed to protect all spouses in polygynous marriages not
only the first spouse by creating a certain and equitable matrimonial property
regime in the polygynous context. Given the purpose of s 7(6), the
differentiation drawn by nullifying marriages concluded in its breach is
irrational. It is irrational because it defeats its very purpose. It is also
illegitimate because the Constitution requires that both spouses be protected.
Important as the interests of the first wife are, it is unfair to protect only her
interests given the vulnerability of all female spouses in polygynous marriages
and the importance of protecting their rights and interests as well. It is
particularly unfair given that the reason for nullity will often flow merely from
ignorance of the law (either by the husband or also his spouse) or lack of
resources or in some cases, may flow from a husband's deliberate breach of
the law. A rule that will punish a second or subsequent wife in good faith
cannot be fair. Indeed it is an extraordinarily harsh consequence when one
considers that the class of woman affected is least likely to have access to the
knowledge and resources required to ensure observance with s 7(6). Finally,
failure to recognise a marriage that would at customary law be valid appears
to me to be the very antithesis of what the legislature sought to achieve. In my
view the purpose of the Recognition Act, as the name suggests, is to afford
recognition to customary marriages and thus extend the greatest protection
possible to a particularly vulnerable class of persons, namely, female spouses
in polygynous marriages.

[38] I accordingly cannot endorse the conclusion of the court below that
non-compliance with the requirements of s 7(6) results without more in the
second customary marriage being void ab initio. I hold instead that the
consequence of such non-compliance is that the subsequent marriage would
be valid but that it would be one out of community of property. It plainly cannot
be a marriage in community of property as that would imply the existence of
two joint estates, which it is clear cannot co-exist. That conclusion, it seems to
me, would afford sufficient protection to the wife of the first customary

marriage. It, moreover, would accord with the injunction of the Constitutional
Court that all legislation be interpreted in accordance with the spirit and
purport of the Constitution.

_____________________
V PONNAN
JUDGE OF APPEAL

MTHIYANE DP

[39] I have had the privilege of reading the judgments of my colleagues
Ndita AJA and Ponnan JA.  I concur in both, save for paragraph 27 of the
main judgment.

_____________________
K K MTHIYANE
DEPUTY PRESIDENT

APPEARANCES:

For Appellant:

N H Maenetje SC

T Ntsankota

Instructed by:

Legal Aid South Africa

Pretoria

Bloemfontein Justice Centre

Bloemfontein

For 1st Respondent:

C A Da Silva SC

T R Masevhe

Instructed by:

H D Rammutla

Pretoria

Phatshoane Henny Inc

Bloemfontein

For 1st Respondent:

Instructed by:

The State Attorney

Pretoria

The State Attorney

Bloemfontein

Amicus Curiae

S Cowen

N  Mji

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
1 June 2012
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.
* * *
M M NGWENYAMA V F M MAYELANE &ANOTHER

Today, the Supreme Court of Appeal (SCA) handed down a judgment, in the case of
Mphephu Maria Ngwenyama v Modjadji Florah Mayelane, upholding an appeal against the
an order of the North Gauteng High Court declaring null and void ab initio a polygynous
marriage between the appellant and her deceased husband contracted in terms of customary
law, because it was not preceded by the conclusion of a contract regulating the future marital
property system  of both marriages, as envisaged in s 7(6) of the Recognition of Customary
Marriages Act 120 of 1998. The Women’s Legal Trust was admitted as amicus curiae in the
proceedings before this court.

The deceased was married to both the appellant and the respondent according customary law.
On his death both spouses who were not aware of each other’s respective marriages, sought
to register their customary marriages with the Department of Home Affairs where they
learned about each other for the first time. The respondent approached the North Gauteng
High Court seeking an order declaring that the appellant’s marriage was null and void ab
initio because the deceased husband had failed to approach the court for approval of  the
contract in terms of s 7(6) referred to above. The high court concluded that the marriage null

and void because of non-compliance with s 7 (6), consequent.
On appeal, this court held that even though the wording of s 7(6) is couched in a peremptory
language, courts were, when interpreting a statutory provision enjoined to prefer an
interpretation that falls within the constitutional bounds over that which does not. Such an
approach would result in untold hardship to women married customary law and would
adverse effects on the children born to such marriages as they would be rendered instantly
illegitimate. Properly construed, the legislature could never have intended failure to comply
with s 7 (6) does not render an otherwise valid customary marriage invalid.