Ascertainment of customary law : case note on MM v MN

• Date: 01 January 2016
• DOI: 10.10520/EJC-c6c0fe723
• Author: F. Osman
• Published date: 01 January 2016
• Pages: 240-246
• Record Number: sapr1_v31_n1_a13

240

CASE NOTE

ASCERTAINMENT OF CUSTOMARY LAW: CASE

NOTE ON MM V MN

F Osman

University of Cape Town

1. INTRODUCTION

Froneman J states in MM v MN:1 ‘The process of determining the content of a particular

customary norm can present some challenges.’ This case gives rise to a number of issues

which have been discussed in some part elsewhere,2 however this note considers the

Constitutional Court’s approach in MM v MN in ascertaining customary law and the

difculties the Court experienced.

The issue in MM v MN was whether a polygamous customary marriage was validly

concluded in Tsonga customary law and in particular, whether the rst wife’s consent

was required for the subsequent customary marriage. This note scrutinises how the

Constitutional Court ascertained the Tsonga customary law on the issue. Tentative

conclusions include that innovation and respect for customary law may not be enough

for the judgment to stand as good precedent.

2. CONSTITUTIONAL COURT

Neither the High Court3 nor Supreme Court of Appeal4 considered the issue of whether

the rst wife’s consent is required for a subsequent customary marriage though it was

1 MM v MN [2013] 4 SA 415 (CC) para 44.

2 Gardiol van Niekerk, ‘The courts revisit polygyny and the Recognition of Customary Marriages Act

120 of 1998: case note’ (2013) SAPL 369; Chuma Himonga and Anne Pope, ‘Mayelane v Ngwenyama

and Minister of Home Affairs: a reection on wider implications’ (2013) Acta Juridica 318; Helen

Kruuse and Julia Sloth-Nielsen, ‘Sailing between Scylla and Charybdis: Mayelane v Ngwenyama’

(2014) 17 (4) 1710; Pappa Maithu, ‘Modjadji Florah Mayelane v Mphephu Maria Ngwenyama

[2013] ZACC 14’ (2013) De Jure 1078.

3 MM v MN [2010] 4 SA 286 (GNP).

4 MN v MM [2012] 4 SA 527 (SCA).

https://doi.org/10.25159/2219-6412/2657

ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 31 | Number 1 | 2016 | pp. 240–246