LCP4804 PORTFOLIO MEMO - SEMESTER 2 - 2022 - OCT./NOV. - UNISA ( WITH DETAILED FOOTNOTES AND BIBLIOGRAPHY)
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Course
LCP4804 - Advanced Indigenous Law
Institution
University Of South Africa (Unisa)
Book
African Customary Law in South Africa
Question 1
Sylvia and John have been married for over five years under customary law. John is considering marrying another wife. He wants to know if Sylvia must give consent before he can conclude a further customary marriage. As a law student, please advise him. Refer to the relevant case law. (2...
LCP4804
ADVANCED
INDIGENOUS LAW
PORTFOLIO MEMO
SEMESTER 2 –
OCTOBER/
NOVEMBER
UNISA – 2022
26 OCTOBER 2022
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Sylvia and John have been married for over five years under customary law.
John is considering marrying another wife. He wants to know if Sylvia must give
consent before he can conclude a further customary marriage. As a law student,
please advise him. Refer to the relevant case law. (25)
[25]
The legal question that was answered by the court: Mayelane appealed to the
Constitutional Court against the decision of the SCA. The Constitutional Court found
it necessary to investigate whether the relevant Xitsonga custom allowed the
deceased to marry Ngwenyama as a second wife without first obtaining the consent
of his first wife, Mayelane. The court’s approach was to collect affidavits from the
community about the need for the husband to obtain his first wife’s consent to her
husband’s further marriage to another woman. The court’s majority held that the
Recognition Act did not contain a requirement for the first wife’s consent and that
Xitsonga customary law did not have a uniform rule in this regard. The court decided
in these circumstances to develop Xitsonga customary law to include the rule that the
first wife’s consent to her husband’s further marriage to another woman is a
requirement for the validity of a further marriage. The consequence was that
noncompliance with the rule would result in the attempted subsequent marriage being
invalid. Unfortunately the court, in the absence of a uniform customary law rule on
consent, chose the one requiring consent, not the other. Having done that the
Constitutional Court developed the version of Xitsonga customary law it favoured and
gave it the stamp of the Constitution.
Accordingly, the Constitutional Court, per Fronemann J, upheld the appeal, concluding
that Ngwenyama’s marriage to her deceased husband was invalid since it was
irregularly entered into without the necessary consent of the first wife.
The minority judgments of Zondo J and Jafta J are instructive in assessing the
performance of the Constitutional Court’s majority decision in this matter. Both justices
take issue with Foremann J’s approach in taking a lot pains collecting evidence to
prove what was already clearly established on record. According to Jafta J Mayelane’s
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