The validity of a second or further customary marriage : call for the amendment of the Recognition of Customary Marriages Act of 1998 : Ngwenyama v Mayelane

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)).