CCT57/12

[2013] ZACC 14

2013 (4) SA 415 (CC)

2013 (8) BCLR 918 (CC

Froneman J, Khampepe J, Skweyiya J Majority judgment

Zondo J separate judgment

Jafta J separate judgment

http://hdl.handle.net/20.500.12144/3682

Application for leave to appeal against a judgment of the SCA: Ngwenyama v Mayelane and Another (474/2011) [2012] ZASCA 94; 2012 (4) SA 527 (SCA); 2012 (10) BCLR 1071 (SCA); [2012] 3 All SA 408 (SCA) (1 June 2012).

Application for leave to appeal concerning the extent to which the absence of a first wife’s consent to her husband’s subsequent polygynous marriages affects the validity of that marriage in Tsonga customary law. The majority held that at the time of the conclusion of the purported second marriage, Tsonga customary law required that the first wife be informed of her husband’s subsequent customary marriage. The second marriage was found to be invalid because the applicant had not been informed. Further, Tsonga customary law had to be developed in accordance with constitutional demands for human dignity and equality to include a requirement that the consent of the first wife as necessary for the validity of her husband’s subsequent customary marriage. A separate concurring minority judgment held that the applicant’s evidence before the High Court was sufficient to show that Tsonga custom required a first wife’s consent for the validity of her husband’s subsequent customary marriages. A further separate concurring minority concluded that there was no need to develop Tsonga customary law in the circumstances of this case. Majority: Froneman J, Khampepe J and Skweyiya J (Moseneke DCJ, Cameron J and Yacoob J concurring). Minority: Zondo J. Minority: Jafta J (Mogoeng CJ and Nkabinde J concurring).