MM v MN and Another

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, Yacoob J and Zondo J
• Judgment Date: 30 May 2013
• Citation: 2013 (4) SA 415 (CC)
• Docket Number: CCT 57/12 [2013] ZACC 14
• Hearing Date: 20 November 2012
• Counsel: C da Silva SC (with T Masevhe) for the applicant. N Maenetje SC (with T Ntsonkota) for the first respondent. S Cowen (with N Mji) for the first amicus. T Ngcukaitobi for the second and third amici.
• Court: Constitutional Court

Froneman J, Khampepe J and Skweyiya J (Moseneke DCJ, Cameron J A and Yacoob J concurring):

Introduction

[1] This case raises questions about the role that the consent of an existing wife (first wife) in a customary marriage plays in relation to the B validity of her husband's subsequent polygynous [1] customary marriages. It also deals with the manner in which the content of an applicable rule or norm of customary law should be ascertained and, if necessary, developed in a manner that gives effect to the Bill of Rights.

[2] These issues were not central to the disposal of the case in the North Gauteng High Court, Pretoria (high court) or on appeal in the C Supreme Court of Appeal. It is thus necessary, first, to explain how they came to the fore in the application for leave to appeal before us.

Facts and litigation history

[3] The main protagonists before us are the applicant (Ms M) and the D first respondent (Ms N). The Minister for Home Affairs is the second respondent. She played no active part in the proceedings and abides by the decision of this court. The Women's Legal Centre Trust (first amicus), the Commission for Gender Equality (second amicus) and the Rural Women's Movement (third amicus) were admitted as friends of the court. E

[4] Ms M alleges that she concluded a valid customary marriage with Hlengani Dyson Moyana (Mr Moyana) on 1 January 1984. Ms N alleges that she married Mr Moyana on 26 January 2008. Mr Moyana passed away on 28 February 2009. Both Ms M and Ms N subsequently sought F registration of their respective marriages under the Recognition of Customary Marriages Act [2] (Recognition Act). Each disputed the validity of the other's marriage. Ms M then applied to the high court for an order declaring her customary marriage valid and that of Ms N null and void on the basis that she (Ms M) had not consented to it. The high court granted both orders. Ms N took the matter on appeal to the G Supreme Court of Appeal. That court confirmed the order declaring Ms M's customary marriage valid, but overturned the order of invalidity in relation to Ms N's customary marriage. It found the latter customary marriage to be valid as well. Ms M now seeks leave to appeal against this latter part of the Supreme Court of Appeal's order.

[5] Although Ms M alleged in her founding papers in the high court that H Xitsonga customary law required her consent for the validity of her husband's subsequent customary marriage and that she had never consented to his marriage to Ms N, this issue was not considered by either the high court or the Supreme Court of Appeal. Both courts I

Froneman J, Khampepe J and Skweyiya J (Moseneke DCJ, Cameron J and Yacoob J concurring)

A determined the matter by interpreting and applying s 7(6) of the Recognition Act [3] and therefore did not consider it necessary to have regard to Xitsonga customary law on the issue of consent. [4]

[6] The high court interpreted s 7(6) as creating an obligatory requirement for the validity of a subsequent customary marriage and held that, B if the husband fails to obtain court approval of the written contract regulating the matrimonial property regime of the subsequent marriage, that marriage is void. [5] The Supreme Court of Appeal disagreed and found that the requirements for validity of customary marriages are to be found in s 3 of the Recognition Act [6] and that the consequences of C non-compliance with s 7(6) were adequately met by treating subsequent customary marriages as being marriages out of community of property. [7] In other words, the Supreme Court of Appeal found that s 7(6) of the Recognition Act does not relate to the validity of customary marriages, but to the proprietary consequences thereof.

[7] By treating s 7(6) as a requirement for the validity of subsequent D customary marriages, the high court found it unnecessary to deal with the other ground for the alleged invalidity of Ms N's customary marriage (that is, the failure to procure Ms M's consent in relation thereto). Although the consent issue was argued as an alternative in the Supreme Court of Appeal, that court did not consider it necessary to deal with the E question. The court reasoned that there was no cross-appeal challenging the high court's finding 'on its acceptance of the validity of the second customary marriage'. [8]

[8] This court directed the parties to address in written argument the question of whether a cross-appeal was necessary to deal with the F consent issue and the consequences if it was not. If a cross-appeal was not necessary, the Supreme Court of Appeal should have determined the consent issue.

[9] In her founding papers in the high court Ms M stated that Xitsonga customary law requires the consent of the first wife for the validity of a G husband's subsequent customary marriages and that she was never informed nor asked by her husband to consent, nor provided any consent, to his alleged customary marriage to Ms N. Ms M's brother-in-law (her deceased husband's brother) corroborated this under oath. Ms N did not deny these allegations, but sought to establish the validity of her own marriage to Mr Moyana by denying that Ms M was ever H married to him and by stating that ilobolo negotiations were entered into in relation to her own marriage.

Froneman J, Khampepe J and Skweyiya J (Moseneke DCJ, Cameron J and Yacoob J concurring)

[10] Ms M pointed out in the high court that the documents to prove the A validity of Ms N's marriage were not attached to her affidavit and that this, coupled with the failure to challenge Ms M's legal assertion regarding the content of Xitsonga customary law and her factual assertion regarding her lack of consent to the marriage, was sufficient evidence to decide the matter in Ms M's favour. B

[11] Ms N and the amici opposed this approach, mainly on the basis that there was insufficient evidence to establish the proper content of the alleged customary rule. They contended that, from available formal sources in the legal literature, it is not clear whether, or to what extent, consent is a requirement for the validity of a subsequent marriage in C Xitsonga customary law. In particular, they emphasised that there is a dearth of information on what the personal and proprietary consequences of non-compliance with any requirement of that kind may be.

Issues

[12] The material issues for determination are: D

(a)

Should the consent issue have been determined by the Supreme Court of Appeal?

(b)

Is the consent of a first wife necessary for the validity of her husband's subsequent customary marriage? This entails considering — E

(i)

whether the Recognition Act directly prescribes the first wife's consent as a requirement for validity; and

(ii)

whether living Xitsonga custom makes such a prescription.

(c)

If neither the express provisions of the Recognition Act nor Xitsonga customary law creates this requirement, does the Constitution F require the law to be developed?

Approach

[13] We intend to deal with the issues in the following manner. The parties' contentions will be set out in summary before dealing briefly G with the question whether leave to appeal should be granted. We conclude that leave must be granted. The merits of the appeal are initiated by discussing whether a cross-appeal was necessary in the Supreme Court of Appeal in order for the issue of consent to be considered. We find that it was not. We then turn to customary law under the Constitution and the Recognition Act in general, before H dealing with the crucial issue of consent under both the Recognition Act and Xitsonga customary law. In the course of doing this we set out the manner in which the content of Xitsonga customary law was ascertained in this court. We conclude that the Recognition Act is premised on a customary marriage that is in accordance with the dignity and equality I demands of the Constitution and that Xitsonga customary law must be developed, to the extent that it does not yet do so, to include a requirement that the consent of the first wife is necessary for the validity of a subsequent customary marriage. Because this finding might unfairly prejudice parties to existing customary marriages, the order will only have prospective effect. We nevertheless conclude that Ms N's marriage J

Froneman J, Khampepe J and Skweyiya J (Moseneke DCJ, Cameron J and Yacoob J concurring)

A was invalid because Ms M was not informed thereof, in contravention of Xitsonga customary law as it existed at the time.

The parties and their contentions

[14] The written and oral argument of the parties and amici contributed B much to the substance of the judgment, and for that we wish to express our gratitude to them. We do not intend to set out their respective contentions in any detail.

[15] In brief summary the following can be stated. There was agreement C that a cross-appeal by Ms M was not necessary in order for the Supreme Court of Appeal to have determined the consent issue; that constitutional matters of importance are raised in this court in relation to the consent issue; and that it would accordingly be in the interests of justice to grant leave to appeal. Ms M argued that the consent issue could be D determined on a proper interpretation of the Recognition Act, but submitted that even if the consent issue fell to be determined according to non-statutory customary law, it could be decided in her favour on the record before us. That approach found no support from any of the other participants in the proceedings. Ms N and all three amici contended that there was insufficient information on record to make definitive findings E on whether consent was a requirement under customary law for the validity of subsequent marriages and what the personal and proprietary consequences of non-compliance in...