Abstract
Mayelane v Ngwenyama 2013 4 SA 415 (CC) is arguably the most important judgment concerning the recognition of customary marriages in recent times. This article attempts to unpack some of the many issues that arise from the case, namely: (a) the practical difficulties associated with ascertaining living customary law and the problems of identifying legal versus social norms; (b) the meaning of consent as a requirement of a customary marriage; (c) the implications of the case for equality between multiple wives in a customary marriage, and as between wives across customary marriages of different cultural traditions; and (e) the implications of the case for equality considerations more broadly. While the authors sympathise with the court in respect of the complex decision before it, it questions the Court's method and result, specifically for the equality rights of a second (or further) wife in a Vatsonga customary marriage. The authors suggest that the issues should be put to democratic deliberation by the legislative arm, rather than leaving courts in the unenviable position of having to decide these matters.
Highlights
In Greek mythology - as epitomised in Homer's epic poem - there is a decisive moment in Odysseus' travels
The judgment was centred on this question
3.1 Proof of living customary law. This dispute was aired in three different courts at all three levels of the South African judicial system, with all three courts arriving at different conclusions
Summary
In Greek mythology - as epitomised in Homer's epic poem - there is a decisive moment in Odysseus' travels He has to sail the impossible: in between a six-headed monster and a whirlpool of such magnitude that it engulfs whole ships. Odysseus is as similar idioms suggest - between a rock and a hard place; or between the devil and the deep blue sea. Faced with this choice, Odysseus chooses the lesser of the two evils: he sails close to Charybdis and loses a couple of sailors, but justifies his decision as having saved his entire ship, his travels, and his mission. Which we believe require further analysis, the first of which occupies a significant part of this article: (a) the practical difficulties associated with ascertaining living customary law and problems of identifying legal versus social norms; (b) the meaning of consent as a requirement of a customary marriage; (c) the implications of the case for equality between multiple wives in a customary marriage, and as between wives across customary marriages of different cultural traditions; and (e) the implications of the case for equality considerations more broadly
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