Ngwenyama v Mayelane wedding after customary wedding

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24 marriages. The purpose of the differentiation would , according to the court below, be to protect a first wife. However, the Rec ognition Act, as I have sought to show is designed to protect all spouses i n polygynous marriages not only the first spouse by creating a certain and equ itable matrimonial property regime in the polygynous context. Given the purpose of s 7(6), the differentiation drawn by nullifying marriages concl uded in its breach is irrational. It is irrational because it defeats its very purpose. It is also illegitimate because the Constitution requires that both spouses be protected. Important as the interests of the first wife are, i t is unfair to protect only her interests given the vulnerability of all female spo uses in polygynous marriages and the importance of protecting their rights and i nterests as well. It is particularly unfair given that the reason for nulli ty will often flow merely from ignorance of the law (either by the husband or also his spouse) or lack of resources or in some cases, may flow from a husband 's deliberate breach of the law. A rule that will punish a second or subseq uent wife in good faith cannot be fair. Indeed it is an extraordinarily har sh consequence when one considers that the class of woman affected is least likely to have access to the knowledge and resources required to ensure observan ce with s 7(6). Finally, failure to recognise a marriage that would at custo mary law be valid appears to me to be the very antithesis of what the legisla ture sought to achieve. In my view the purpose of the Recognition Act, as the nam e suggests, is to afford recognition to customary marriages and thus extend the greatest protection possible to a particularly vulnerable class of pers ons, namely, female spouses in polygynous marriages. [38] I accordingly cannot endorse the conclusion of the court below that non-compliance with the requirements of s 7(6) resu lts without more in the second customary marriage being void ab initio. I h old instead that the consequence of such non-compliance is that the subs equent marriage would be valid but that it would be one out of community of property. It plainly cannot be a marriage in community of property as that woul d imply the existence of two joint estates, which it is clear cannot co-exis t. That conclusion, it seems to me, would afford sufficient protection to the wife of the first customary
25 marriage. It, moreover, would accord with the injun ction of the Constitutional Court that all legislation be interpreted in accord ance with the spirit and purport of the Constitution. MTHIYANE DP _____________________ V PONNAN JUDGE OF APPEAL [39] I have had the privilege of reading the judgme nts of my colleagues Ndita AJA and Ponnan JA. I concur in both, save fo r paragraph 27 of the main judgment. _____________________ K K MTHIYANE DEPUTY PRESIDENT
Page 1 and 2: THE SUPREME COURT OF APPEAL OF SOUT
Page 3 and 4: 3 wishes to enter into a second cus
Page 5 and 6: 5 However, he found that the failur
Page 7 and 8: 7 wife, it is for that reason that
Page 9 and 10: 9 [15] Counsel for the appellant em
Page 11 and 12: 11 subsequent customary marriage, t
Page 13 and 14: 13 [20] Although the above was stat
Page 15 and 16: 15 (a)the court must- (i) in the ca
Page 17 and 18: 17 [25] The amicus curiae drew the
Page 19 and 20: 19 class of persons who, more often
Page 21 and 22: 21 must be registered in terms of s
Page 23: 23 by our Constitution. Third, alth

Ngwenyama v Mayelane wedding after customary wedding

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