Consent of the first wife necessary before husband can marry according to African Marriage Custom. So rules the Constitutional Court

2013-06-01 16:51

This is a groundbreaking judgment of the Constitutional Court regarding the imperative of obtaining the consent of the first wife first in terms of African Customary Marriage which needs to be disseminated as widely as possible.

In fact the Constitutional Court has ordered that a copy of the entire judgment, all over 90 pages on length be sent to various government departments such as Home Affairs so that every potential person who is going to be married or is married according to African Customary Law be made aware of her rights!

The case in question is cited as

Modjadji v Ngwenyama and Another [2013] ZACC 14

Brief summary of facts

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This was judgment handed down on 30 May 2013 in a matter regarding Tsonga customary marriages in which the Court was called upon to determine the extent to which the absence of a first wife’s consent to her husband’s subsequent polygynous marriages affects the validity of the latter marriages. That is to say is her consent imperative when the husband decides to marry another wife according to custom?

Modjadji, the applicant married her late husband (the deceased) in 1984 in terms of Tsonga customary law. Their marriage was not registered. After his death the applicant was informed that her husband had purported to conclude a further customary marriage with Ngwenyama, the first respondent. The applicant successfully applied to the North GautengHigh Court, Pretoria (High Court) for an order declaring her customary marriage valid and the first respondent’s purported customary marriage invalid.

The matter was taken on appeal to the Supreme Court of Appeal which confirmed the validity of the applicant’s customary marriage, but ruled that the first respondent had also concluded a valid customary marriage with the deceased.

#Note that at no point was the issue of whether or not consent was necessary argued before either the High or the Supreme Court of Appeal. It was then taken on appeal to the Constitutional court where the applicant argued that the purported second marriage was invalid 'because she (the applicant) had not consented to it.'

Before the Constitutional Court

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The first respondent's response to that was that, it would be inappropriate to determine the consent issue raised by the applicant as there was no proper evidence on the applicable customary-law regime and further because that issue had not properly been traversed in the courts below. She asked the Constitutional Court to uphold the decision of the Supreme Court of Appeal.

Majority Decision

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Judge Froneman, with whom the majority consisting of Khampepe J and Skweyiya J, and concurred by Deputy Chief Justice Moseneke, Cameron J and Yacoob J, the Constitutional Court upheld the appeal. They held that, at the time of the conclusion of the purported marriage between the first respondent and the deceased, Tsonga customary law required that the first wife be informed of her husband’s subsequent customary marriage. The first respondent’s marriage was found to be invalid because the applicant had not been informed.

They were, nevertheless, of the opinion that, in accordance with this Court’s obligations to develop 'living customary law' in a manner that is consistent with the Constitution, Tsonga customary law had to be developed to include a requirement, to the extent that it does not yet do so, that the consent of the first wife is necessary for the validity of her husband’s subsequent customary marriage. Why? Because, the court held that this development stems from the fundamental demands of human dignity and equality under the Constitution.

Why is this judgment important?

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The import of the judgment is that, from now on, further Tsonga customary marriages must comply with the consent requirement in order to be valid.

Note well that.......

There were separate judgment handed down, one by Judge Ray Zondo agreeing with the majority and the other , by Judge Jafta (with whom Chief Justice Mogoeng and Judge Nkabinde concurred) dissenting.

Zondo J agreed that leave to appeal should be granted and that the appeal should be upheld, but for different reasons. He held that the applicant’s evidence before the High Court was sufficient to show that Tsonga custom required afirst wife’s consent for the validity of her husband’s subsequent customary marriages.

In a dissenting, Jafta J (with whom Mogoeng CJ and Nkabinde J concurred) agreed that leave to appeal should be granted and that the appeal should be upheld, but concluded that there was no need to develop Tsonga customary law in the circumstances of this case. He held that the development was both unnecessary because there was sufficient evidence on record to support the applicant’s case, and undesirable because development of the law should be undertaken by courts of their own accord 'only in exceptional circumstances'.

Saber Ahmed Jazbhay

@follow me @legaleaglesone and @jazlaw24

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