Two wives, but only if first agrees — court

THE Constitutional Court yesterday declared a customary marriage between a man and a woman he married without the consent of his first wife null and void.

It also said the consent of the first wife was a necessary dignity and equality component of a further customary marriage and that, from now on, further Xitsonga customary marriages must comply with that consent requirement to be valid.

“A subsequent marriage will be invalid if consent from the first wife is not obtained,” the Constitutional Court said in the judgment written by justices Johan Froneman, Sisi Khampepe and Thembile Skweyiya.

The judgment means that a Xitsonga customary marriage where the first wife consents 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 not complying with the constitution. Polygynous marriages are recognised in customary law and in the Recognition of Customary Marriages Act.

But the legislation governing the marriages must find a balance between gender equality and cultural rights.

Modjadji Mayelane married Hlengani Moyana according to Xitsonga customary law in 1984. After Mr Moyana died in 2009, Ms Mayelane tried to register her marriage, only to discover that Mphephu Ngwenyama, had also sought to register a marriage to him. Ms Mayelane had won an application in the North Gauteng High Court declaring that the marriage between Mr Moyana and Ms Ngwenyama was invalid because Mr Moyana had failed to comply with the Customary Marriages Act.

But in June last year, the Supreme Court of Appeal upheld Ms Ngwenyama’s appeal by dismissing the high court’s order.

Ms Mayelane appealed against that judgment.