Abstract:
Interpreting legislation dealing with the validity of customary marriages in South
Africa has proven to be a daunting task (see Bekker and West “The validity of
‘further’ customary marriages: A legal conundrum” 2012 THRHR 515–519). The
reason for this is that the interpretation revolves around the balancing of competing
interests or rights of the most vulnerable members of the society, namely,
wives and children of customary marriages (see Kambule v The Master 2007 3
SA 403 (E); Wormald NO v Kambule 2006 3 SA 562 (SCA) and Wormald v
Kambule [2004] 3 All SA 392 (E)). This was recently shown by the decisions of
the North Gauteng High Court in MM v MN 2010 4 SA 286 (GNP)) and the
South Gauteng High Court in MG v BM 2012 2 SA 253 (GSJ). Although distinguishable,
both cases deal with the validity of a subsequent or further customary
marriage entered into by a husband during the subsistence or existence of a
customary marriage with another woman. In the first case (MG v BM), the North
Gauteng High Court held that the second or subsequent customary marriage was
invalid because of the husband’s failure to comply with the provisions of section
7(6) of the Recognition of Customary Marriages Act 120 of 1998. In the second
case (MG v BM), the South Gauteng High Court expressed doubt as to the
correctness of the decision of the North Gauteng High Court to the effect that
failure to comply with the abovementioned provisions leads to the invalidity of
the subsequent customary marriage. The decision of the North Gauteng High
Court was taken on appeal to the Supreme Court of Appeal (Ngwenyama v
Mayelane (474/11) [2012] ZASCA 94 (1 June 2012)).
