The Consent of the First Wife in a Polygamous Marriage as a Requirement for the Validity of her Husband's Subsequent Marriage under South Africa's Recognition of Customary Marriages Act: Mayelane v Ngwenyama

Abstract

AbstractIn the South African case of Mayelane v Ngwenyama, the Constitutional Court held that the consent of the first wife in a polygamous marriage is a requirement for a subsequent marriage of her husband to be valid, even though the Recognition of Customary Marriages Act is silent on the issue. This article argues that this decision reinforces the equality of spouses in a polygamous marriage and customary marriages in general, as envisaged by the act and as the constitution demands. It also criticizes the legislature's failure to give guidance regarding the absence of consequences for failure to comply with the requirement for a husband to seek the court's approval of a contract to regulate future marriages before he marries a subsequent wife. The article suggests that the legislature should revisit the Recognition Act to repeal the provision or stipulate consequences for the failure to comply.