Mayelane V Ngwenyama on the Importance of Consent and its Application to all Polygynous Marriages in South Africa
Any notion of the first wife’s equality with her husband would be completely undermined if he were able to introduce a new marriage partner to their domestic life without her consent.1
On 30 May 2013, the Constitutional Court held that, if a man who is already married under Tsonga customary law decides to take another customary wife, he must get the consent of his first wife before doing so, in order to make sure the second marriage is valid. This was decided in Mayelane v Ngwenyama and Another2, where the Legal Resources Centre (LRC) represented the Rural Women’s Movement and the Commission for Gender Equality, who were admitted as second and third amici curiae. The case raised other legal issues, including the relationship between customary law, customary law legislation and the constitutional rights, but for the sake of this chapter, the author focuses on the need for consent in polygynous marriages and the reasons advanced by Court on why it is important. The article will also explain the extent to which the requirement of consent, as articulated in Mayelane, can be applicable to other customary systems in South Africa.
From the onset it is important to note that Mayelane does not deal with the constitutionality of polygynous marriages, despite their inherent inequality, as only men may marry more than once; women may not. As no party challenged the validity of polygyny in South Africa, the Court was therefore not in a position to decide on this issue. As such, the Court specifically left open the possibility of a constitutional challenge on the validity of polygyny within the constitutional framework of South Africa.
The factual scenario, which is very common to those in polygynous marriages, is as follows. In 1984, Mr Hlengani Dyson Moyana married Ms Modjadji Florah Mayelane (Applicant) in terms of Tsonga custom. In 2008, without his wife’s knowledge or consent, he entered into a second customary marriage with Ms Mphephu Maria Ngwenyama (Respondent) and died a month later.3 Both Ms Mayelane and Ms Ngwenyama subsequently sought to register their respective marriages under the Recognition of Customary Marriages Act (RCMA)4, with each of them denying the existence and validity of the other’s marriage.5
In her founding papers in the High Court, the Applicant alleged that Xitsonga customary law mandated the husband in an existing customary marriage to seek his wives’ consent before concluding a subsequent customary marriage and, further, that she had not given such consent to her husband when he married the Respondent.6 The Respondent argued that there was no proof that consent was currently required to conclude subsequent marriages in the Xitsonga custom. Both the High Court and the Supreme Court of Appeal had not decided on this issue, as they simply decided the dispute between the parties by focusing solely on section 7(6) of the RCMA.7 Both courts, therefore, did not consider consent within the Xitsonga customary law. When the Mayelane case came before the Constitutional Court, the following issues had to be determined:
- Should the consent issue have been determined by the Supreme Court of Appeal?
- Is the consent of a first wife necessary for the validity of her husband’s subsequent customary marriage? This entails considering –
- whether the RCMA directly prescribes the first wife’s consent as a requirement for validity; and
- whether living Xitsonga custom makes such a prescription.
- If neither the express provisions of the RCMA nor Xitsonga customary law creates this requirement, does the Constitution require the law to be developed?
ARGUMENTS ADVANCED BY LRC ON BEHALF OF ITS CLIENTS
On behalf of the amici curiae, the LRC argued the following points in court:
- The need for constitutional recognition of living customary law as an independent source of law, rights and obligations, including in relation to the validity of customary marriages.
- Custom is alive and, as such, capable of change and adopting the principles of equality and dignity as enshrined in our Constitution.
- The method for the determination of the content of customary law articulated in the case of Shilubana and others v Nwamitwa 2009 (2) SA 66 (CC).
- The role of section 39(2) in the development of customary law in order to ensure that it is consistent with the spirit, purport and objects of the Bill of Rights. It was submitted that section 39(2) can only be engaged once the nature of customary law has been ascertained and it is determined that, in specific respects, it is constitutionally deficient.
- The role of patriarchy within custom cannot be ignored, especially how it places women in vulnerable positions. This, together with the equality of spouses as enshrined in both the Constitution of South Africa and the Recognition of Customary Marriages Act, supports a finding that consent ought to be made a normative requirement in concluding subsequent customary marriages. This finding would be a start in addressing the power imbalances imposed by patriarchy in polygamous customary marriages.
- In the event that consent is required, the nature and form of the consent (though the Court did not make a pronouncement on this).
FINDINGS OF THE CONSTITUTIONAL COURT ON CONSENT AND THEIR IMPLICATIONS
The Court found that the Recognition of Customary Marriages Act did not prescribe the first wife to give consent to her husband if he wished to conclude a subsequent customary marriage. Due to the fact that section 3(1)(b) of the Recognition of Customary Marriage requires any customary marriage to be negotiated and entered into in terms of customary law, the Court had to determine the content of Xitsonga custom. The Court, therefore, directed parties to provide further representations on Xitsonga customary law after the hearing had already taken place. A number of affidavits were filed by the parties. With the assistance of an expert, the LRC filed five affidavits, including one of a woman who was a third wife in a customary marriage. She detailed how she got married to her husband as a third wife with the consent of his first wife.
On 30 May 2013, the Constitutional Court held that if a man who is already married in terms of custom wishes to marry another wife under Xitsonga custom, he must seek the consent of his existing wife. This implies that the man’s existing wife must first agree to allow her husband to marry another woman before he may do so. Should the husband proceed to conclude a subsequent marriage without his existing wife’s consent, the subsequent marriage is null and void under law.
1. The equality argument
In coming to this decision, the Court also emphasised Section 6 of the RCMA, which entrenches spousal equality by stating unambiguously that a customary wife has, ‘full status and capacity’. As the Court pointed out in the judgment, capacity within the confines of marriage includes, ‘the capacity to acquire and alienate assets, the capacity to conclude contracts, the capacity to conduct litigation and such further rights and powers as may be prescribed by living customary law8.’ As the Court rightly pointed out, section 6 does not add any additional requirements that must be met when concluding a customary marriage; rather, it imposes spousal consequences on a customary marriage that is already concluded.9
The judgment emphasised the importance of the equality clause when it is stated that, ‘the Constitution demands equality in the personal realm of rights and duties as well.10’ The crucial need of equality in customary marriages is highlighted by the Court when they explain:
‘It requires little imagination or analysis to recognise that polygynous marriages differentiate between men and women. Men may marry more than one wife; women may not marry more than one husband. Nevertheless, the validity of polygynous marriages as a legal institution has not been challenged before us and, for present purposes, we must work within a framework that assumes its existence and validity. Are the first wife’s rights to equality and human dignity compatible with allowing her husband to marry another woman without her consent? We think not. The potential for infringement of the dignity and equality rights of wives in polygynous marriages is undoubtedly present. First, it must be acknowledged that “even in idyllic pre-colonial communities, group interests were framed in favour of men and often to the grave disadvantage of women and children”. While we must accord customary law the respect it deserves, we cannot shy away from our obligation to ensure that it develops in accordance with the normative framework of the Constitution.’11
The right to culture is recognised; however, its recognition and practice must not undermine the right to equality and dignity of women whose husbands want to marry subsequent wives. The Court here tackles the systematic benefit that men acquired from the development of societal values that generally favoured men. Within the constitutional democracy, the Court must ensure that the rights enshrined in the Constitution are respected, promoted and fulfilled. As such, the right to culture as entrenched in the Constitution must be balanced with the rights of women, and courts cannot allow a system that perpetually undermines the equality of wives to continue flourishing.
2. The patriarchy argument
Patriarchy refers to a society characterised by existing and, ‘historic unequal power relations between women and men where women are systematically disadvantaged and oppressed12.’ In a patriarchal society, the subjugation of women is grounded on, ‘the inequality of justified allocation of roles while gender encompasses the allocation of roles to individuals according to sex.13’ Within the context of polygamous marriages, it has already been stated that only men can marry additional spouses, women cannot. The Court argued that, to allow men to marry additional spouses without seeking the consent of their first wife, is allowing the subjugation of women to continue. Allowing women to continue living in a society that favours the interest of men was contrary to the constitutional tenets, especially the right to equality and dignity.
Perhaps this argument could go further than simply tackling the role of women when a man who is already married wishes to marry another woman. Surely, within the same constitutional tenets, the fact that only men can marry more than one woman at a time would also need to be brought in line with the Constitution. However, this was not an issue before Court and it will probably be a topic for another court to decide should the premise be challenged constitutionally. For now, it suffices to note that the Court was emphatic in refusing to allow men already married to marry additional women at will, without seeking the consent of their existing wife.
3. The agency and dignity argument
The Court recognised that Xitsonga custom operated in terms of a generous spirit aimed at accommodating the concerns and needs of the first wife and her family in the event that the husband sought to enter into another marriage14. However, only the man had the choice to marry again.
Having emphasised dignity as both a value and right that is firmly entrenched in the Constitution of South Africa, the Court affirmed the need for women to have agency over their own lives as an integral part of realising their right to dignity. Failure to allow a woman to exercise agency over her own life and marriage is an affront to dignity. As such, the Court specifically stated that:
‘… the right to dignity includes the right-bearer’s entitlement to make choices and to take decisions that affect his or her life – the more significant the decision, the greater the entitlement. Autonomy and control over one’s personal circumstances is a fundamental aspect of human dignity. However, a wife has no effective autonomy over her family life if her husband is entitled to take a second wife without her consent. Respect for human dignity requires that her husband be obliged to seek her consent and that she be entitled to engage in the cultural and family processes regarding the undertaking of a second marriage. Given that marriage is a highly personal and private contract, it would be a blatant intrusion on the dignity of one partner to introduce a new member to that union without obtaining that partner’s consent.’
Within this context, the Court also emphasised the need to ensure that in exercising agency over their lives, women in customary marriages must be able to make informed decisions about their personal life, sexual or reproductive health, or on the possibly adverse proprietary consequences of a subsequent customary marriage. Denying them the opportunity to consent to an additional wife being brought into the marriage undermines their right to dignity and equality.
DOES THE JUDGMENT APPLY TO OTHER CUSTOMARY MARRIAGES CONCLUDED OUTSIDE THE XITSONGA CUSTOM?
The Constitutional Court has confirmed that in considering living customary law, law is not based on precedent but on the practices of the community15. As the Court stated, ‘it should be borne in mind that customary law is not uniform. A particular custom may have one of various acceptable manifestations of a consent requirement, together with a wealth of custom-based ancillary rules dealing with the effects of not requiring consent, including its proprietary effects, for example, in the law of succession. All factors may be relevant in determining the validity of further customary marriages.16’
Though the custom that was before the Court was Xitsonga, it is argued that the judgment points to how the Constitutional Court will decide on the issues of equality and dignity of spouses in customary marriage. This should not be understood as saying that Mayelane set a requirement for consent for all marriages in all customs. The judgment, however, has a positive impact on all other customs that have customary marriages because of its emphasis on equality. It is a reassurance of equality of spouses as expressed in both the Recognition of Customary Marriages Act and the Constitution of South Africa. Within the context of equality, the judgment is also a pronouncement that in a constitutional framework of South Africa, polygyny cannot be allowed to exist in a manner that either obliterates or undermines rights of women. Rather, the spouses must be equally responsible for who is brought into the marriage and the consequence of this decision, especially for health and proprietary reasons.
Additionally, the arguments advanced by the Court with relation to patriarchy, agency and dignity are not limited to the Xitsonga customary values of marriage, but are rather a reflection of what these values mean within our constitutional democracy and marriage generally. As such, it is submitted that these arguments clearly indicate the roles that women play in polygyny. They are no longer voiceless beings that simply comply with the will of their husbands. Whether this translates in reality or not, the message of the Court is clear. More will have to be done to raise awareness about equality, agency and choice for women in marriage and the constitutional mandate to bring all cultural marital laws and practices in line with the Constitution.
Every Court that will be faced with the issue of consent within another customary marriage framework will still have to comply with the steps set out in the Shilubana17 judgment before deciding on whether or not to develop the custom before in relation to the requirement of consent. The steps set out in Shilubana are: (a) the determination of the traditions of the community concerned from a historical perspective; (b) the assessment of the variability of the customs and traditions by the community itself; (c) the need for flexibility; and (d) the need for the development of customary law in accordance with section 39(2) of the Constitution. This four-stage exercise is not important for its own sake; it is important because of the constitutional imperative that customary law must be given effect, where it is applicable. The four-stage exercise of Shilubana is also important in the role of section 39(2) of developing customary law in order to ensure that it is consistent with the spirit, purport and objects of the Bill of Rights. Therefore, within the ambit of the arguments in the Mayelane vs Ngwenyama judgment, it is hard to imagine that a court will come to a different conclusion on the need to ensure that the equality, dignity, agency and choice of women married in terms of a customary context is respected, promoted and fulfilled.
While it is recognised that there are a number of crucial issues that must still be addressed in the context of customary marriages, this judgment is an important step in chipping away at the subjugation of women in marriage, including customary marriages. It is the right direction in clearly affirming that patriarchy no longer has a place within our constitutional democracy. Instead, the court emphasised agency, choice and equality as some of the fundamental values that our Constitution strives for in marriage. For that, the Mayelane v Ngwenyama judgment is worth noting, even among some of its shortcomings that have been rightly pointed out in other contexts.
- Para 72.
- 2013 (4) SA 415 (CC).
- Para 4.
- 120 of 1998.
- Para 4.
- Ibid para 5.
- Para 39
- Para 39
- Para 66
- Para 70–71.
- ‘What is patriarchy?’ available at http://londonfeministnetwork.org.uk/home/patriarchy, accessed 9 June 2016.
- Brian Mathebula and Matshidiso Motsoeneng Patriarchy and The Informal Economy: The Case for Women Empowerment, SPII Working Paper 10 – MAY 15 available at http://www.spii.org.za/wp-content/uploads/2015/06/Patriarchy-Paper-Working-Paper-10.pdf
- Para 70.
- Mayalene para 51.
- Mayelane para 51.
- Shilubana and others v Nwamitwa 2009 (2) SA 66 (CC)