The Constitutional Court handed down a crucial judgement relating to customary law and polygynous marriages on Thursday. The case deals with issues of validity and the propriety consequences of these marriages.
The first issue, which came on appeal from the Supreme Court of Appeal was whether a husband’s failure to apply to the court to register a contract (of marriage) regulating the propriety consequences of a secondary marriage makes that marriage null and void. The Women’s Legal Centre (WLC), friends of the court in the matter, argued that it should not affect the validity of the second marriage, as this would negatively impact on women and undermine the protections that the law sought to give women spouses in customary marriages. The Constitutional Court agreed with the Supreme Court of Appeal that failure to register the contract does not invalidate the marriage. This means that women whose husband’s fail to register the contracts will not lose out on their property rights.
The Constitutional Court also considered a second issue: whether the consent of the first wife is required in a polygynous marriage. The WLC argued that the Constitution requires such consent. The WLC asked the court not to make this retrospective as it would negatively affect women in existing marriages where consent was not obtained. The Constitutional Court developed the Tsonga customary law to make consent of the first wife a requirement for the validity of future marriages. This is in line with women’s right to dignity and equality, and brings Tsonga customary law in line with the Constitution. The Constitutional Court made a ruling that this will only apply to marriages that are to happen in the future.
The court made an order requiring that the judgement summary is sent to the houses of traditional leaders and the Minister of Home Affairs, and also that it is to be distributed as widely as possible.
“We are pleased with the steps taken in this matter. It is important that this outcome is communicated widely, and communities should be brought on board” says Jennifer Williams, Director of the WLC.
Summary of facts:
The applicant in the matter married her husband under Tsonga customary law in 1984 but their marriage was not registered. When her husband died, it was found that he had entered into another customary marriage under the Recognition of Customary Marriages Act, a secondary marriage she had not given consent to. According to Tsonga customary law, the second marriage is invalid when the first wife has not given consent.
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Issued by the Women’s Legal Centre
For more information contact:
Jennifer Williams: 021 424 5660 / 078 803 3110
About the Women’s Legal Centre
The WLC is a non-profit, independently funded law Centre, started by a group of lawyers in Cape Town in 1999, with a vision to achieve equality for women in South Africa. The Centre has identified five strategic focus areas. These are: violence against women; fair access to resources in relationships; access to land/housing; access to fair labour practices; and access to health care (particularly reproductive health care).
The WLC has been at the forefront of legal reform in relation to women’s equality in South Africa since the Constitution came into effect, having won several precedent setting cases in the past.
The WLC is targeting socio-economic rights of women as an important area for advancement by litigation and advocacy, and will challenge the most unenviable forms of indirect discrimination that act to prevent women from achieving real equality.
In order to empower women through knowledge of their rights, the Centre also offers free legal advice to women. Women are assisted or referred to the relevant body, NGO or court for assistance.