The courts revisit polygyny and the Recognition of Customary Marriages Act 120 of 1998 : case note

AuthorG.J. Van Niekerk
DOI10.10520/EJC153131
Published date01 January 2013
Date01 January 2013
Pages369-487
publishedByUNISA Press
The courts revisit polygyny and the
Recognition of Customary Marriages
Act 120 of 1998
Ngwenyama v Mayelane 2012 4 SA 527 (SCA);
Mayelane v Ngwenyama 2013 4 SA 415 (CC)
1 Introduction
Historically, African customary marriage was regarded as abhorrent by the
European community owing to its polygynous nature and the institution of lobolo,
and because of which they did not recognise such marriages and relegated them
to the official status of ‘unions’. As a consequence, the courts had in effect
‘bastardised almost the entire Native population’. It is trite to say that this caused
1
immense suffering for African families, especially for women and children who
were excluded from legal protection in the familial environment. Over the years
their position was remedied to a limited extent by legislation that, in certain
circumstances, afforded them the same protection provided to spouses and
children from civil marriages.2
The eventual recognition of customary marriages by the Recognition of
Customary Marriages Act 120 of 1998 was widely welcomed, as was the certainty
and uniformity it ostensibly engendered. Unfortunately this Act cast the majority
3
of the requirements for and consequences of customary marriages in a Western
common-law form. This has led to the development of a new type of statutory
marriage, one that is far removed from the true and living customary marriage.
It has further buttressed the official customary law that has developed over the
years and that has added a new dimension to the legal pluralism prevailing in
South African Law Reform Commission Report on Customary Marriages Project 90 (Aug 1998)
1
(hereafter Report) para 2.3.10; Seedat’s Executors v The Master (Natal) 1917 AD 302.
For an overview of this distressing history, see Maithufi and Moloi ‘The current legal status of
2
customary marriages in South Africa’(2002) TSAR 599 at 602 and the sources referred to therein;
Du Plessis ‘Poligamie, buite-egtelikheid en intestate erfreg: Dhansay v Davids 1991 4 SA 200 (K)’
(1993) 56 THRHR 151 at 151-152.
Gumede v President of the Republic of South Africa 2009 3 SA 152 (CC) para 24.
3
470 (20 13) 28 SAPL
South Africa. It is not surprising that the interpretation of this Act has led to the
resolution of issues on an ad hocbasis, causing wide uncertainty in many
respects. The status of polygyny is one of the issues still shrouded in uncertainty.
4
Indeed, in MG v BM Moshidi J observed with regard to section 7(6) of the Act
5
(regulating the proprietary consequences of polygynous marriages) that ‘legal
journals and publications are replete with uncertainty regarding the proper and
future interpretation of the section’.
Of course, the difficulties relating to the interpretation of legislative
enactments regulating the application of African customary law in general, and
specifically of customary marriages and polygyny, are nothing new. More than a
century ago the courts grappled with similar problems: prima facie contradictory
provisions and, in general, clumsy legislative drafting made it as difficult then to
determine the intention of the legislature as they do now. For example, in the
early 1890s, referring to Proclamation 140 of1885 (Cape) and its impact on
polygynous marriages, Maasdorp J remarked in the Eastern Districts Court in
Nbono v Manoxoweni: ‘To my mind it is not quite clear what was really intended
to be done with reference to the recognition of marriages under native custom’.6
Ironically, this Proclamation was passed in pursuance to the recommendations
of the 1883 Commission enquiring into ‘native laws’ that polygynous marriages
should be recognised, not unlike the recommendation of the South African Law
Reform Commission in the 1990s. Interestingly enough, notwithstanding the
7
contemporary legislation, nineteenth-century courts in certain circumstances gave
effect to polygynous customary marriages, applying customary law. In Dantile v
M’Tirara,for example, De Villiers CJ found that polygynous marriages entered
8
into before Proclamation 140 of 26 August 1885 (Transkei) were valid marriages
as the Proclamation did not have retrospective effect. In this case the appeal
against a decision of a magistrate’s court, awarding a husband damages for the
adultery with his sixth wife, was accordingly dismissed.
See, eg, the divergent decisions in Fanti v Boto 2008 5 SA 405 (C); Mabuza v Mbatha 2003 4 SA
4
218 (C); Nontobeko Virginia Gaza v Road Accident Fund(SCA), unreported case no 314/04; South
African Law Reform Commission Statutory law revision (legislation administered by the Department
of Co-operative Governance and Traditional Affairs) Discussion Paper 120 (Nov 2010) paras 2.83,
2.91, 2.99, 2.101-104; Van Niekerk ‘Reflections on the interplay of African customary law and state
law in South Africa’ (2012) 3 Studia Universitatis Babeº-Bolyai: Iurisprudentia,available at
http://studia.law.ubbcluj.ro/articol.php?articol Id=508 (accessed 2013-06-01).
2012 2 SA 253 (GSJ)) in para 19.
5
1891-1892 6 EDC 62at 74.
6
See Nbono v Manoxoweni 67; see, also, the comments of Barry JP in Sengane v Gondele (1880-
7
1881) 1 EDC 195 at 204, rega rding the implied recogni tion of polygyny through the Native
Succession Act 18 of 1864 (Cape); see, further, Kerr ‘Back to the problems of a hundred or more
years ago: Public policy concerning contracts relating to marriages that are potentially or actually
polygamous’ (1984) 101 SALJ 424.
1891-1892 9 SC 452.
8

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