CASE NO: CCT 57/12 In the matter between:
MODJADJI FLORAH MAYELANE Applicant
and
MPHEPHU MARIA NGWENYAMA First Respondent MINISTER OF HOME AFFAIRS Second Respondent
and
WOMEN’S LEGAL CENTRE TRUST Amicus Curiae
__________________________________________________________________
FIRST RESPONDENT’S HEADS OF ARGUMENT
__________________________________________________________________
TABLE OF CONTENTS
INTRODUCTION 3
THE SCA WAS CORRECT ON SECTION 7(6) 9
SUBMISSIONS ON THE QUESTIONS POSED BY THIS COURT 21
Whether cross-appeal was necessary on issue of consent 22
Whether the SCA’s finding raises issue for appeal before this Court 33 Whether consent of first customary wife is necessary 34 If consent necessary, whether High Court could find it was obtained 43
CONCLUSION 43
LIST OF AUTHORITIES 45
INTRODUCTION
1. The applicant applies for leave to appeal against the whole of the judgment of the Supreme Court of Appeal (“the SCA”) handed down on 1 June 2012.
The judgment is reported: Ngwenyama v Mayelane and another [2012] 3 All SA 408 (SCA).
2. The High Court judgment that the SCA set aside is also reported:
Mayelane v Ngwenyama and another [2010] 4 All SA 211 (GNP).
3. The SCA found that the sole issue before it was the proper interpretation of section 7(6) of the Recognition of Customary Marriages Act, 120 of 1998 (“the Recognition Act”). It posed the question as follows:
“[8] The core issue in this appeal turns on whether the failure by the husband to make an application to court to approve a written contract regulating the matrimonial property system of both the first and second marriages, as envisaged in section 7(6) of the Act, invalidates the subsequent customary marriages from inception, in the absence of an express provision in the Act to that effect”.
4. The SCA found that the High Court was not correct that failure to comply with the terms of section 7(6) of the Recognition Act rendered the subsequent customary marriage void ab initio and upheld the appeal.
5. One of the issues that the applicant raised in the SCA was that on the facts presented the first respondent had failed to establish that her customary marriage to the deceased (husband) was valid.1 The crux of the submission was that the first respondent had failed to prove that the deceased had obtained the prior consent of the applicant before entering into the customary marriage with the first respondent.
6. The first respondent made the submissions set out below to the SCA.
6.1. It appeared from paragraphs 9 and 10 of the High Court judgment that the High Court accepted confirmation of a customary marriage celebrated according to customary law between the first respondent and the deceased, as confirmed by the headman of the first respondent’s village.2 However, in paragraph 29 of the judgment the High Court appeared to leave open the issue whether under the applicable customary law there is a legal requirement for the first
1 SCA judgment para 11.
2 Appeal Record p 13.
wife’s prior consent for the validity of a subsequent customary marriage.
6.2. The High Court concentrated on the contention by the applicant that the marriage between the first respondent and the deceased was void ab initio for failure to comply with section 7(6) of the Recognition Act, as this fact is clearly recorded in paragraphs 12 and 13 of the High Court judgment.
6.3. In consequence of the High Court’s approach as reflected in paragraphs 12, 13 and 29 of its judgment, and the manner in which the matter appears to have been presented to the High Court as appears from paragraph 13 of the High Court judgment, the High Court did not proceed to:
6.3.1. investigate and determine whether “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”,3 in this case of the communities to whom the deceased and the first respondent belonged, required that for its validity a subsequent customary marriage ought to be preceded by the consent of the first wife;
3 See the definition of “customary law” in section 1 of the Recognition Act.
6.3.2. determine whether a failure to obtain such prior consent of the first wife rendered the subsequent customary marriage null and void ab initio, or only voidable, irrespective of the fact that the subsequent customary marriage may otherwise have been negotiated and entered into or celebrated in accordance with customary law;
6.3.3. determine whether, on the basis of evidence presented, there was a need to develop customary law to introduce the requirement of prior consent by the first wife, because it took the view in paragraph 29 of the judgment that such an issue did not arise in this case.
6.4. If the issue of prior consent by the first wife was to be properly determined, the matter would have to be remitted to the High Court on that issue for the receipt of further relevant evidence, unless the SCA determined that it could itself receive such further evidence in terms of section 22(a) of the Supreme Court Act, 59 of 1959.
7. The SCA declined to decide the issue of the applicant’s prior consent in the absence of a cross-appeal challenging the finding of the High Court on its
acceptance of the validity of the second customary marriage – at customary law.4
8. We submit that the issue of the first wife’s prior consent raises difficult questions as to:
8.1. the existence of the norm or requirement under customary law, in particular the customary law of the parties concerned – i.e. that of the deceased, the applicant and the first respondent;5
8.2. the exact nature and content of the norm or requirement, for example whether consent extends to the particular prospective spouse or merely to the fact that the husband may take another wife;
8.3. the consequences of non-compliance;
8.4. how the requirement for prior consent operates or would operate in polygamous marriages under relevant customs and traditions where the subsequent spouse is the third or fourth wife, and so forth, and whether only the most senior wife’s consent must be sought and obtained, or of all the senior wives.
4 SCA judgment para 11.
5 See Applicant’s Heads of Argument (“HoA”) para 10.4.6.
9. We submit that the proper determination of the issue, and whether or not there is a need to develop customary law in that regard in terms of section 39(2) of the Constitution,6 requires an appropriate evidentiary basis, which is absent in this case because of the approach that the High Court adopted.
10. In addition to the inappropriateness of determining the issue without a proper evidentiary basis, we submit that it would not be in the interests of justice for this Court to determine the issue as a Court of first and last instance, in circumstances where no other Court, including the High Court, allowed the parties to properly and fully ventilate the issue.
11. If the issue were to be properly and fully ventilated, the matter must be remitted to the High Court on that question only so that the High Court can deal with the issue properly.
12. In relation to the proper interpretation of section 7(6) of the Recognition Act, we submit that both the majority and minority in the SCA were correct and there is no basis upon which this Court should set aside the SCA judgment on that issue.
13. Our understanding of the directions issued by this Court on 1 August 2012, and the only questions that the Court requires the parties to address, is that
6 Constitution of the Republic of South Africa, 1996.
the SCA’s interpretation of section 7(6) of the Recognition Act appears to be implicitly accepted by this Court. In the event that we are incorrect in our understanding, and because the applicant challenges the SCA’s interpretation in her heads of argument,7 we make submissions on why the SCA was correct on its interpretation of section 7(6) of the Recognition Act. We then address the questions posed by this Court.
14. We submit in the circumstances that leave to appeal should be refused.
15. If leave to appeal is granted, the appeal should be dismissed on its merits, or the matter referred back to the High Court to determine whether the applicant’s prior consent was required to render the marriage between the first respondent and her deceased husband valid, as well as the consequences of a failure to obtain such prior consent.
16. The heads of argument address in sequence the topics as set out in the table of contents.
THE SCA WAS CORRECT ON SECTION 7(6)
17. The SCA found in paragraph 11 of its judgment that as there was no cross- appeal against the High Court’s acceptance of the validity of the customary
7 HoA para 10.3.4 and following.
marriage between the first respondent and the deceased under customary law, it was not called upon to decide the issue.
18. We submit below, in response to the questions posed by this Court that the SCA correctly declined to inquire into an issue that had not been properly and fully ventilated in the High Court.
19. As to the only question that the SCA decided, we submit that the SCA was correct and there are no prospects of this Court overturning the SCA’s judgment.
20. It is trite that section 7(6) of the Recognition Act must be read in the scheme of the Act as a whole; and that of section 7 as a whole to determine:
20.1. its object in the Act; and
20.2. the correct consequences of non-compliance with it.
21. The error that the High Court made, and which the applicant continues to make in her application to this Court is:
21.1. to focus on the word “must” in section 7(6) to determine the consequences of non-compliance; without proper regard to the other provisions of section 7;
21.2. to construe its object as being to impose a requirement for prior consent for a second customary marriage, and the approval of such a marriage, by a Court;
21.3. failing which the second marriage is void ab initio.8
22. On the interpretation of section 7(6) preferred by the High Court and the applicant, a second marriage would be void ab initio where:
22.1. the husband made no attempt to get the Court to approve a contract in terms of section 7(6), as in this case;
22.2. the husband made the attempt, but the Court refused to approve the contract in terms of section 7(b)(iii);
22.3. irrespective of the duration and other circumstances of the second customary marriage.
23. The above interpretation, i.e. that preferred by the High Court and supported by the applicant:
23.1. is incorrect and not supported by the scheme of the Recognition Act and the wording used in section 7, when read as a whole;
8 High Court judgment para 30.
23.2. gives rise to harsh consequences and fails to promote the spirit, purport and objects of the Bill of Rights as required by section 39(2) of the Constitution and ought not to be preferred. These harsh consequences are very well set out in paragraph 37 of the minority judgment of Ponnan JA in the SCA.
24. In the scheme of the Recognition Act, we make the submissions that follow.
25. The Act does not prohibit polygamy; it recognises it.9
26. A polygamous marriage is recognised if it complies with the requirements of the Recognition Act for a valid customary marriage.
27. The requirements for a valid customary marriage are those set out in section 3(1) of the Recognition Act, i.e. that:
27.1. prospective spouses must be adults; and must consent to be married to each other under customary law;
27.2. the marriage must be negotiated and entered into or celebrated in accordance with customary law, as ascertained on the approach set out in Shilubana10 and Bhe.11
9 Section 2(2) and (4) of the Recognition Act.
10 Shilubana and others v Nwamitwa 2009 (2) SA 66 (CC) para 42 and following.
28. The heading to section 7 of the Recognition Act makes it plain that the provisions of the section deal with the proprietary consequences of customary marriages and the contractual capacity of spouses and points away from the High Court’s conclusion that the provisions have to do with the validity of a customary marriage itself.
29. This Court has confirmed previously that it is permissible for the purpose of elucidating a provision in a statute to refer to the headings of sections in the statute. The headings are part of the context and can provide textual support for a particular construction.12
30. It is plain from the words used in section 7(6) of the Recognition Act that:
30.1. the Court approves only a contract and not the marriage;
30.2. the contract is to regulate the future matrimonial property system of the husband’s marriages – i.e. from the time of approval going forward.
31. Section 7(7) reveals the object of the requirement in section 7(6) of the Recognition Act: it is mainly to protect the proprietary interests of the pre-
11 Bhe v Khayelitsha Magistrate and others 2005 (1) SA 580 (CC) paras 150-152.
12 President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC) paragraph 12. (See also the authorities cited at footnote 13 and references to the position in England and Canada at footnotes 14 and 15 respectively. See also the judgment of Innes CJ in Turffontein Estates Ltd v Mining Commissioner Johannesburg 1917 AD 419 at 431-432 and S v Jordan (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) 2002 (6) SA 642 (CC) paragraph 49).
existing spouse or spouses. Absent the approved contract, the pre-existing matrimonial property system is not terminated and continues to exist. In this regard, when considering the application in terms of section 7(6), the Court must only if the marriage is in community of property or which is subject to the accrual system:
31.1. terminate the matrimonial property system which is applicable to the (pre-existing) marriage; and
31.2. effect a division of the matrimonial property system.
32. It is plain that:
32.1. the legislature was concerned to protect the proprietary interests of the pre-existing spouse in a community of property marriage or one subject to the accrual system because a change of the matrimonial property system as a result of a further marriage would adversely affect such spouse’s proprietary interests;
32.2. the legislature was not so concerned where the pre-existing customary marriage was out of community of property without the accrual.
33. Effecting a division, as if on divorce or death, is to practically protect the pre-existing spouse’s proprietary interests.
34. If no contract was approved prior to the subsequent customary marriage as contemplated in section 7(6) – either because no application was made, or such an application was refused under section 7(7)(b)(iii):
34.1. the pre-existing matrimonial property system is not legally terminated at all under section 7(7) because the power to terminate and effect a division is given to a Court – it is not effected by the mere taking of a further wife;
34.2. the further spouse’s marriage, where the prior marriage was in community of property or subject to an accrual, will be out of community of property and the further spouse would be entitled to inherit intestate from the husband’s portion of the estate and to claim maintenance from that portion of the estate, and enjoy all the other incidents of marriage; all of which do not adversely affect the proprietary rights and interests of the pre-existing spouse(s), including rights in terms of succession.
35. The position is the same where the prior marriages were out of community of property without the accrual and where there is no termination and
division in terms of section 7(7)(a). The subsequent customary marriage will also be out of community of property.
36. The position will be the same in the case of divorce dissolving the marriages; except that the Court granting the divorce will have the additional equitable powers under section 8(4)(b).
37. We submit that in terms of the above interpretation, the peremptory nature of section 7(6), from the use of the word “must”, is given effect to, in that:
37.1. absent the approval of the contract to regulate the future matrimonial property system of the polygamous customary marriage;
37.2. the pre-existing matrimonial property system is not terminated by the mere taking of a subsequent wife; and
37.3. the subsequent customary marriage is out of community of property and not regulated by any purported agreement between the husband and the subsequent wife.
38. It is well established in our law that a failure to comply with a peremptory provision, such as section 7(6), does not automatically result in a nullity as the High Court found. It all depends on the intention of the legislature; and
the harsh consequences that would flow from nullity are an important factor in determining the legislature’s intention in this regard.
39. The High Court’s reliance on Minister of Environmental Affairs and Tourism and others v Smith13 on the effect of the word “must” was mistaken. That case was concerned with the discretion of an administrator where the relevant provisions were completely different from those in section 7(6).
40. The law is clear that it is pointless (and not decisive) to ask whether a provision is peremptory or directory; the correct approach being to ascertain the intention of the legislature as gathered from the provisions of the statute.14
41. The above reading of section 7(6):
41.1. does not produce the harsh consequences that follow upon nullity;
41.2. protects and balances the rights and interests of both the pre-existing spouse and the new spouse;
13 Minister of Environmental Affairs and Tourism and others v Smith 2004 (1) SA 308 (SCA).
14 See in this regard Pottie v Kotze 1954 (3) SA 719 (A), which has been followed ever since.
41.3. gives full effect to the word “must”, because without the approval of a contract the pre-existing matrimonial property system remains in place.
42. We submit that it is an interpretation that is required by the Constitution as set out both in the majority and minority judgments in the SCA, which this Court ought to approve.
43. We submit further that nullity as held by the High Court means that the inherent power of the Courts to condone non-compliance with provisions that determine the stage at which, i.e. when, applications have to be made to Court would be excluded in the case of section 7(6) of the Recognition Act.
This is a harsh and undesirable consequence.15
44. We therefore submit that the SCA judgment on the proper interpretation of section 7(6) of the SCA ought to be allowed to stand.
44.1. Contrary to the applicant’s contentions, the SCA took proper regard of the provisions of section 39(2); as well as the judgment of this
15 See for example Phillips v Direkteur Vir Sensus 1959 (3) SA 370 (A) at 374G (in fine) and Toyota South Africa Motors (Pty) Ltd v Commissioner, SARS 2002 (4) SA 281 (SCA) at paragraph 10 on this type of inherent power.
Court in Gumede,16 and balanced the rights of the first and subsequent wife.17
44.2. The place of section 3(6) in the Recognition Act is of no assistance to the applicant in the interpretation of section 7(6).18 Section 3(6) falls within the provisions of the Recognition Act dealing with
“Requirements for the validity of customary marriages” and merely states that customary law and not the Recognition Act determines the prohibition between persons on account of their relationship by blood.
44.3. Requirements for the validity of a customary marriage do not include compliance with section 7(6),19 as that section is concerned with the proprietary consequences of a subsequent customary marriage, and on the pre-existing marriage(s).
44.4. The finding by the SCA that in the absence of compliance with section 7(6) the subsequent marriage is out of community of property is supported by the provisions of section 7(7) as submitted above. It is also supported by the fact that in terms of section 7(2) of
16 Gumede v President of the Republic of South Africa and others 2009 (3) SA 152 (CC).
17 SCA judgment paras 21 and 37.
18 HoA para 10.3.4.1.
19 HoA para 10.3.4.1.
the Recognition Act only a monogamous customary marriage is presumptively regarded as being in community of property.20 It follows that a subsequent polygamous customary marriage is not presumed to be in community of property but out of community of property.21 The applicant’s contention is therefore incorrect that the finding of the SCA has no support in the Recognition Act.22
44.5. The applicant contends that a failure to inform the first spouse of the prospective marriage before it is concluded, due to a failure to comply with section 7(6), is visited with no sanction or consequence.23 This is incorrect, as the consequence of non- compliance is that the pre-existing proprietary regime between the husband and the first wife remains in existence and is not terminated or changed by the taking of a subsequent wife. This protects the first wife’s proprietary interests.
44.6. Contrary to the applicant’s contentions,24 the SCA judgment creates an appropriate balance between the rights of the applicant and the first respondent, which the Recognition Act was intended to achieve.
20 In Gumede v President of the Republic of South Africa and others 2009 (3) SA 152 (CC) the Court only declared invalid the words “entered into after the commencement of this Act” in section 7(2) of the Recognition Act.
21 Or subject to customary law.
22 HoA para 10.3.4.5.
23 HoA para 10.3.4.7.
24 HoA para 10.3.4.8.
The outcome does not infringe any of the applicant’s rights to dignity and equality.
SUBMISSIONS ON THE QUESTIONS POSED BY THIS COURT
45. This Court has posed the following questions to the parties and required them to only answer those questions in the heads of argument:
45.1. Whether it was necessary for the applicant to lodge a cross-appeal to the SCA in view of the fact that she was the successful party in the High Court proceedings.
45.2. If no cross-appeal was necessary:
45.2.1. whether the contrary finding of the SCA raises an issue that confers jurisdiction on this Court to determine the application for leave to appeal and, if leave is granted, the appeal;
45.2.2. whether it is a requirement for the validity of a second or subsequent customary marriage that the consent of the wife of the first customary marriage had to be obtained; and, if so;
45.2.3. whether the High Court should have found that the
necessary consent was obtained.
46. We deal with the questions in the sequence in which they are presented in the directions of 1 August 2012.
Whether cross-appeal was necessary on issue of consent
47. The High Court judgment or order is contained in paragraph 41 of the judgment. It says plainly:
“[41] In the light of the common cause fact that the first respondent’s purported marriage to the deceased, entered into after the Act was promulgated, was not preceded by the conclusion of a contract envisaged in section 7(6) of the Act, the purported marriage of the first respondent to the deceased is void. The applicant is therefore entitled to a declaratory order to that effect. She is also entitled to have her marriage to the deceased registered.”
48. The appeal to the SCA attacked the first part of the order, i.e. the finding on section 7(6) of the Recognition Act. The SCA upheld the appeal on this and allowed the applicant’s marriage to the deceased to be registered.25
25 SCA order.
49. The question that arises is whether the SCA should have, even in the absence of a cross-appeal on the issue, permitted the applicant to contend that irrespective of the SCA’s findings on section 7(6) of the Recognition Act the customary marriage between the first respondent and the deceased was nevertheless void ab initio because:
49.1. it was a requirement of the applicable customary law of the parties that the deceased ought to have sought and obtained the applicant’s prior consent before concluding a subsequent customary marriage with the first respondent; and
49.2. nullity followed upon a failure to seek and obtain such prior consent.
50. The question whether a respondent needs to cross-appeal on an issue before she is permitted to advance it on appeal in support of a judgment of the Court a quo has occupied the courts in a number of cases.
51. The judgment of Trollip JA in Bay Passenger Transport Ltd v Franzen26 provides good guidance and we quote the following passage from it:
“The problem in the way of that approach is whether the reduction in (c) can now be eliminated when plaintiff has not cross-appealed against it. Counsel for the parties joined issue thereon before us.
26 Bay Passenger Transport Ltd v Franzen 1975 (1) SA 269 (A).
The essence of the enquiry is whether the reduction is by itself a substantive “judgment or order” given by the Court a quo within the meaning of those words in sec. 20 (1) (b) of the Supreme Court Act, 59 of 1959, and Rule 5 (3) of this Court, or, is merely a finding or ruling made by the Court a quo in its process of reasoning in arriving at the net damages. If the former, then the variation of that judgment or order by eliminating the reduction cannot be achieved at plaintiff’s instance because he did not cross-appeal against it ….
If the latter, then, as the issue of the quantum of damages has been raised on appeal by the appellant, the plaintiff can seek to support the net amount awarded and this Court, if it deems fit, can uphold (but not increase) it by eliminating the reduction without any cross- appeal … . The reason is that the plaintiff does not then seek, nor does this Court grant, any variation of the judgment awarding the net damages, but that judgment or award is merely supported and upheld on a ground rejected by the Court a quo … .
...
To put the point another way: any cross-appeal by the plaintiff would have had to be directed against the Court a quo’s award of net damages seeking an upward variation thereof, and not merely
against its decision determining his degree of negligence and the corresponding reduction in damages; the latter would merely have constituted the ground on which that variation was being sought; but as the plaintiff was content with the net damages awarded, no cross- appeal was necessary; however, since the appellant attacked that amount on appeal, plaintiff could support it, and this Court uphold it, on the ground that the reduction under the Act was not justified.”27
(Emphasis added)
52. We accept the following in this case:
52.1. That it is clear from paragraph 29 of the High Court judgment that the Court did not focus on and reject the applicant’s contention that the applicable customary law required her prior consent for the validity of the customary marriage between the first respondent and the deceased. The Court left the issue open, albeit that it appears to have accepted evidence tendered by the first respondent of a customary marriage celebrated in terms of customary law, as we submit above.
27 At 748A also. The passage by Trollip JA was quoted with approval and applied in Publications Control Board v Central News Agency Ltd 1977 (1) SA 717 (A) 746-747.
52.2. Further that what the Court said in paragraph 29 of the judgment was part of its reasoning and not a definitive judgment or order that could be the subject matter of an appeal or cross-appeal.
53. The question is whether the SCA or this Court, in light of the High Court’s approach, could fairly determine the issue whether the applicant’s prior consent is a requirement for the validity of the marriage between the first respondent and the deceased, as well as the consequences of a failure to obtain such prior consent.
54. In other words, whether such an issue could be determined as another basis on which to support the High Court order declaring the marriage between the first respondent and the deceased void ab initio, on the basis that “it is open to a respondent on appeal to contend that the order appealed against should be supported on grounds which were rejected by the trial judge”.28
55. Since, as we submit above, the High Court did not reject the applicant’s contention regarding prior consent, but left the issue open, this is not a case in which the High Court order could be supported on a ground rejected by it. It would, rather, be the case of the High Court order being supported on a ground foreshadowed in the High Court papers. We submit that such an approach would be permissible where:
28 Publications Control Board v Central News Agency Ltd 1977 (1) 717 (A) at 747A.
55.1. all the relevant facts required to determine the issue have been canvassed and ventilated in the Court a quo and are before the appeal court; and
55.2. the only issue that arises on the facts as canvassed is a question of law, which can be determined without any prejudice or unfairness to the other party;29 or
55.3. where the issue itself was fully ventilated in the Court below.30
56. In such circumstances, the appeal court would be required to consider and determine the issue sought to be raised in support of the order of the Court a quo, in order not to uphold a wrong order and offend the rule of law.
57. The present case is not one that falls under the categories set out in paragraph 55 above for the reasons that follow.
57.1. A fair reading of the pleadings filed in the High Court show that the first respondent contended that her marriage to the deceased was valid under customary law; whereas the applicant contended that it was not, on the basis of a failure to obtain her prior consent.
29 Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A) at 23F-G; Greathead v SA Commercial Catering & Allied Workers Union 2001 (3) SA 464 (SCA) para 15; Cusa v TAO Ying Metal Industries and others 2009 (2) SA 204 (CC) para 68.
30 Legal Aid Board v S and others [2011] 1 All SA 378 (SCA) paras 16-22, especially para 19.
57.2. It is also important to highlight the fact that whilst the applicant alleged in her founding affidavit that she did not consent to the first respondent’s marriage to the deceased, she did not allege in that affidavit that her customary law, and that of the deceased and the first respondent, required such prior consent. Instead, her allegation of a lack of consent was linked with the requirements of section 7(6) of the Recognition Act,31 and it was responded to accordingly.32
57.3. It was only in the supporting affidavit of the deceased’s brother that the allegation is made that “[i]n terms of our custom the first wife must be consulted and consent to the marriage of the second wife”.33
57.4. The allegation made in the supporting affidavit of the deceased’s brother is not dispositive of the issue under customary law for the following reasons:
57.4.1. It does not purport to cover the customary law of the applicant and the first respondent at all.
57.4.2. It refers only to custom, which is only an aspect of the definition of customary law in the Recognition Act.
31 Appeal Record p 8 para 7.
32 Appeal Record p 20 para 5.4.
33 Appeal Record p 9 para 2.2.
Significantly, it is unclear from the allegation whether the alleged “custom” refers to past practice or current practice, i.e. living customary law.
57.4.3. The deceased’s brother does not purport to be an expert or to present expert evidence of any kind.
57.4.4. It is also incorrect to construe the pleadings in a manner that renders common cause the allegation regarding custom made in the supporting affidavit of the deceased’s elder brother. It is plain from the first respondent’s “replying affidavit” in the High Court that she contested the alleged invalidity of her marriage. She could not simultaneously be regarded as admitting that her marriage was invalid for want of the applicant’s prior consent.
57.5. In these circumstances the Court a quo was called upon to ascertain the exact requirements of the applicable customary law as regards the first wife’s prior consent. Such a determination, we submit, would have to be in terms of the approach outlined by this Court in Shilubane34 and Bhe,35 which approach involves an appropriate
34 Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC).
35 Bhe v Khayelitsha Magistrate and Others 2005 (1) SA 580 (CC).
factual inquiry into both the traditions and current practices of the relevant communities. In Shilubane this Court said the following in this regard:
“[49] To sum up: where there is a dispute over the legal position under customary law, a court must consider both the traditions and the present practice of the community. If development happens within the community, the court must strive to recognise and give effect to that development, to the extent consistent with adequately upholding the protection of rights. In addition, the imperative of section 39(2) must be acted on when necessary, and deference should be paid to the development by a customary community of its own laws and customs where this is possible, consistent with the continuing effective operation of the law. With that, I turn to the enquiry into the legal position in the present case.”
57.6. In Bhe this Court said the following in this regard:
“[150] There are at least three ways in which indigenous law may be established. In the first place, a court may take judicial notice of it. This can only happen where it can readily be ascertained with sufficient certainty. Sec- tion 1(1) of the Law of Evidence Amendment Act 45 of 1988 says so. Where it cannot be readily ascertained, expert evidence may be adduced to establish it.
Finally, a court may consult text books and case law.
[151] Caution, however, must be exercised in relying on case law and text books. In Alexkor we emphasised the need for caution and said:
…
[152] It is now generally accepted that there are three forms of indigenous law:
(a) that practised in the community; (b) that found in statutes, case law or textbooks on indigenous law (official); and (c) academic law that is used for teaching purposes. All of them differ. This makes it difficult to identify the true indigenous law. The
evolving nature of indigenous law only compounds the difficulty of identifying indigenous law.”
57.7. The High Courts have also generally conducted a factual inquiry to determine the validity of a customary marriage where this is in dispute. The SCA referred to the case of Mrapukana v Master of the High Court and another,36 where the proper factual inquiry was also conducted.
57.8. The first respondent will suffer immense prejudice if the issue is determined at this stage of the proceedings, by reference only to the allegations made in the supporting affidavit of the deceased’s brother filed in the High Court. This would not be in the interests of justice.
58. We therefore submit that whether or not a cross-appeal was required, the issue cannot be determined by this Court on appeal as a court of first and last instance without the proper factual inquiry been conducted to ascertain:
58.1. the existence of a rule or norm of customary law regarding the requirement of the first wife’s prior consent;
36 Mrapukana v Master of the High Court and another [2008] JOL 22874 (C).
58.2. the nature and extent of such a requirement, for example whether it extends to consenting to a marriage to a particular prospective wife;
and
58.3. the consequences of a failure to obtain such consent to the validity of a subsequent customary marriage, for example whether such a marriage is a nullity or only voidable.37
Whether the SCA’s finding raises issue for appeal before this court
59. To the extent that the question of the first wife’s consent would involve the Court’s duty to ascertain whether it was necessary to develop customary law in terms of section 39(2) of the Constitution to introduce a legal requirement for her prior consent, we accept that the SCA’s contrary finding that it could not determine the issue raises a constitutional matter.
60. This confers jurisdiction on the Court to determine the issue.38
37 As we submit below, minors’ marriages are not automatically void because of want of appropriate consent and permissions.
38 Section 167(3) of the Constitution.
Whether consent of first customary wife is necessary
61. For the validity of a customary marriage, whether the first, second or further, the Recognition Act only requires the consent of the parties. This is provided for in section 3(1)(a)(ii) of the Recognition Act.
62. The Recognition Act expressly deals with:
62.1. who is required to give consent where either of the spouses is a minor;
62.2. the permission required from the Minister or the relevant officer if either of the prospective spouses is under the age of 18;
62.3. the consequences of a failure to obtain the required permission before concluding a customary marriage where either of the spouses is under 18;39 and
62.4. the consequences of a customary marriage of a minor entered into without the consent of a parent, guardian, commissioner of child welfare or a judge, as the case may be.40
63. The Recognition Act recognises polygamy.41
39 Section 3(3)(a) and 4(4).
40 Section 3(5). The consequences are not nullity. See SCA judgment para 33.
64. Despite the recognition of polygamy under the Recognition Act, and save for the provisions of section 7(6) of the Recognition Act that were enacted to safeguard the proprietary rights and interests of the senior wives, the Recognition Act does not:
64.1. require that a husband in a prospective customary marriage must first obtain the consent of the senior wife for the validity of the prospective customary marriage;
64.2. provide for the consequences of a failure to obtain such a consent, as it does in the case of a marriage of a minor.
65. Therefore the first spouse’s prior consent is not a requirement under the Recognition Act. It is significant in this regard that, despite regulating the requirement of consent in respect of all other instances, the Recognition Act says nothing in this regard about the first spouse’s prior consent. We refer to TW Bennet42 below on the possible reason for this exclusion.
66. In the absence of any provision in the Recognition Act requiring the senior spouse’s prior consent, customary law must regulate the position.
41 Section 7(4) expressly envisages a husband in more than one customary marriage.
42 TW Bennet Customary Law in South Africa (2011) at 246, footnote 27.
67. As we submit above, the relevant customary law is that which is applicable to the parties in question. There is no basis under the Recognition Act or the Constitution for the conclusion that the relevant customary law to be considered is only that of the prospective husband.
68. We were not able in our researches to find authority43 that the customary law applicable to the first respondent and the deceased, i.e. “Tsonga custom” as alleged in the heads of argument,44 required the applicant to first obtain the applicant’s consent prior to concluding a valid customary marriage with the first respondent. Such a rule of customary law would presumably stipulate:
68.1. the time when such consent is to be obtained;
68.2. the nature and extent of the consent, i.e. whether it is limited to consenting to the husband taking a further wife, or the specific wife;
and
68.3. the consequences of a failure to obtain such consent timeously or at all; which cannot, in the absence of clear evidence, be presumed to be nullity.
43 Save for the allegations made in the supporting affidavit of the deceased’s brother, which do not constitute expert evidence.
44 HoA para 10.4.9.
69. The position under traditional customary law, bearing in mind that there are different systems of customary law,45 seems to be that the consent of the senior wife, whether first or second, was not required for the validity of a subsequent customary marriage. We quote the following passage from the judgment in Mrapukana:46
“[35] Mr Sandlana contended that in his view the consent of the already married wife (by customary law) had to be first sought before the conclusion of the second and/or third marriage by the husband who is party to an existing customary marriage because the second and/or third marriage implied that the property of the already married wife would diminish. Traditionally whenever one speaks of property this was almost always a direct reference to livestock in the nature of cattle. Indeed the conclusion of the second and/or third marriage by such husband involved the use of such cattle for purposes of paying lobolo. I, however, differ with Mr Sandlana in this regard. The aspect of property was carefully managed in traditional communities. The wife upon marriage formed what is called a house. There will be
45 TW Bennett Customary Law in South Africa (2011) at 69.
46 Mrapukana v Master of the High Court and another [2008] JOL 22874 (C).
cattle allocated to that particular house. Such livestock is properly identified and marked accordingly. They multiply and are known to that particular wife. This becomes known as house property. Another category in the same family will remain known as kraal property. The family head (the husband) remains in charge of all the property but he may not use any beast belonging to the house property for any purpose other than for the benefit of that particular house. If he must use same, he must fully consult the wife of that particular house. Until and unless an agreement between him and that house has been reached, he shall under no circumstances resort to the use of the house property. The most common agreement reached would entail the replacement of that property used by the husband other than for the benefit of the relevant house. The head of the family, however, had a free hand when it came to the use of kraal property. It was almost always from the kraal property that he paid lobolo for any further wife he intended to marry.
[36] He merely informed the senior wife that he intended to initiate lobolo negotiations with regard to any wife he then intended
marrying. This was more out of respect than soliciting consent from her. Before leaving this aspect of the judgment, it may be useful to quote from the EJCL, an article authored by Marissa Herbst & Willemien du Plessis entitled
"Customary Law v Common Law Marriages: A Hybrid Approach in South Africa", where the following statement of law appears:
‘According to the KwaZulu-Natal Codes of Zulu law, house property belongs to the specific house but is still under the control of the family head. The house property must, however, be utilized for the benefit of the members of the specific household. The family head must maintain the daily needs of his wife (wives) and children. Family property includes all the property in the family excluding house property and personal property. Personal property includes, for example, clothes and other smaller items of personal nature or gifts that were received. Women had control over their personal property only’ (see further Olivier et al Inheemse Reg; TA Bennet Sourcebook on African
Customary Law at 232–237 (Cape Town 1991);
IP Maithuli ‘Do we have a new type of voidable marriage?’ Journal of Contemporary Roman-Dutch Law at 628–630 (1992)).
[37] I do not hold the view that in the past a polygamous man could not enter into or contract further customary marriages without the consent of the senior wife. The situation is of course different today. …”
70. TW Bennet records that there was no general support to introduce a legal requirement in the Recognition Act that a husband not be allowed to contract a subsequent customary union until he complies with “the widespread practice of consulting his first wife”.47 Even then the requirement would have been limited to consulting the first wife and not necessarily obtaining her prior consent.
71. We submit that whatever the position is today, the only real sense in which the first wife could be prejudiced by the taking of a subsequent spouse is in relation to her proprietary rights and interests. Such interests are properly protected by the provisions of section 7 of the Recognition Act, as properly interpreted by the SCA.
47 TW Bennett Customary Law in South Africa (2011) at 246, footnote 27.
72. Apart from the proprietary rights and interests there are no other residual rights that ought to be protected by a requirement that a subsequent customary marriage is void unless preceded by consent sought and obtained from the first wife. There are no dignity and equality rights that are implicated.48 We make this submission for the following reasons:
72.1. The Constitution does not entrench a right to monogamy. It could not do so in the face of a clear recognition of customary law and the right to practice one’s culture generally, where the former permits and does not condemn polygamy.49 The Recognition Act gives effect to the Constitutional recognition of customary law and polygamy – subject of course to the Constitution.
72.2. It is not clear to us how one could speak in the abstract of an expectation to remain in a monogamous marriage when either spouse concludes a customary marriage. We make this submission because the Recognition Act and customary law make it plain that every customary marriage is potentially polygamous. Parties to customary marriages must be assumed to know this, unless the contrary is proved or circumstances are proved which point to the contrary, which is not the case before this Court.
48 HoA para 10.2.1.
49 Sections 31 and 212 of the Constitution.
72.3. Given the above considerations, we submit that there are no other rights that prior consent by the first wife would be intended to protect other than the proprietary interests that section 7 of the Recognition Act, as interpreted by the SCA, already protects.
72.4. There is therefore no necessity, on our submission, for the development of customary law to introduce the prior consent of the first wife as a legal requirement for the validity of a subsequent customary marriage.
72.5. We submit in any event that this Court is not in a position to determine the true content of the customary norm that the applicant contends for, because of insufficient evidence and material on which to do so. In other words, there is no sufficient clarity as to the existence of the norm, its exact content and consequences upon non- compliance, to enable the Court to properly test it against the Constitution and determine the extent to which it requires development in terms of section 39(2) of the Constitution.50
72.6. It would be appropriate, if the Court accepts that there is no requirement for the first wife’s prior consent but that a case is made out for the introduction of such a legal requirement, to let the
50 Bhe para 109.
customary communities develop their rules in that regard, or for Parliament to introduce appropriate amendments to the Recognition Act in that regard.51
If consent necessary, whether high court could find it was obtained
73. We accept that if a legal requirement exists under applicable customary law for the first wife’s prior consent, then the High Court could not have found on the papers before it that such consent was obtained.
74. The answer to the question does not, however, advance the applicant’s case any further as the High Court did not conduct any inquiry to determine whether the applicable customary law required such prior consent.
CONCLUSION
75. We submit for the reasons set out above that the application for leave to appeal should be dismissed; or that the appeal on the merits should fail if leave to appeal is granted.
76. We submit further that if the Court grants leave to appeal on the issue of the first wife’s prior consent, it ought to refer the matter back to the High Court
51 Shilubane para 49.
to determine the issue properly on the basis of relevant evidence. We refer to the reasons we have advanced above in support of this course of action.
NH MAENETJE SC
T NTSONKOTA
SANDTON CHAMBERS
24 September 2012
LIST OF AUTHORITIES
1. Bay Passenger Transport Ltd v Franzen 1975 (1) SA 269 (A) 2. Bhe v Khayelitsha Magistrate and Others 2005 (1) SA 580 (CC) 3. Cusa v TAO Ying Metal Industries and others 2009 (2) SA 204 (CC)
4. Greathead v SA Commercial Catering & Allied Workers Union 2001 (3) SA 464 (SCA)
5. Gumede v President of the Republic of South Africa and others 2009 (3) SA 152 (CC)
6. Legal Aid Board v S and others [2011] 1 All SA 378 (SCA)
7. Minister of Environmental Affairs and Tourism and others v Smith 2004 (1) SA 308 (SCA)
8. Mrapukana v Master of the High Court and another [2008] JOL 22874 (C) 9. Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A)
10. Phillips v Direkteur Vir Sensus 1959 (3) SA 370 (A) 11. Pottie v Kotze 1954 (3) SA 719 (A)
12. President of the Republic of South Africa and Another v Hugo 1997 (4) SA 13. Publications Control Board v Central News Agency Ltd 1977 (1) SA 717
(A)
14. S v Jordan (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) 2002 (6) SA 642 (CC)
15. Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC)
16. Toyota South Africa Motors (Pty) Ltd v Commissioner, SARS 2002 (4) SA 281 (SCA)
17. Turffontein Estates Ltd v Mining Commissioner Johannesburg 1917 AD 419
18. TW Bennet Customary Law in South Africa (2011)
