ANSWERS FSIGNMENT 2 LCP4804 2026
The feedback provides for the main points to be covered in answering the questions but not a
comprehensive answer to them.
Before his death Z married his wife R by customary rites. After Z's death R went to register their
customary marriage at the Home Affairs Department, only to be told, to her consternation, that P had
already been to that office to register hers with the deceased. R knew that P did what she did in
order to claim Z's estate.
(i) Comment on whether Z could possibly have had two valid customary marriages, referring
to any law/legislation recognising it. (5)
Polygamy is legal under certain circumstances in South Africa. All polygamous marriages entered into in
accordance with the provisions of the Recognition of Customary Marriages Act, 1998 (Act No. 120 of
1998) are legal. Section 2(3) of this Act provides that ‘(3) If a person is a spouse in more than one
customary marriage, all valid customary marriages entered into before the commencement of this Act are
for all purposes recognised as marriages. (4) If a person is a spouse in more than one customary marriage,
all such marriages entered into after the commencement of this Act, which comply with the provisions of this
Act are for all purposes recognised as marriages.’
In addition, the recognition of polygamous marriages is confirmed in terms of Section 7(6) of the same Act
when it permits a man who is married in terms of customary law to conclude a further customary marriage
with another woman if he so wishes on condition of complying with certain procedures, namely, to apply to
a competent court for such a marriage to be legal
All customary marriages which were valid under customary law when the act came into force, whether
monogamous or polygamous, are recognised as marriages for all legal purposes. Marriages contracted after
the act came into force are only recognised if they comply with the requirements imposed by the act.
(ii) What would your comment be if R says Z never told her about his customary marriage with
P and that R and Z subscribed to Tsonga customary law which does not recognise Z's
further customary marriage, contracted without her consent as Z's senior wife.
(5)
Applying the constitutional case of Mayelane V Ngwenyama and Another 2013 (4) SA 415 (CC) where it
was decided that the consent of the wife in a marriage is required for a polygamous marriage to be valid. In
, this case, the husband Mr Hlengani Dyson Moyana married the first wife Ms Modjadji Florah Mayelane
(Applicant) in 1984. In 2008, he married Ms Mphephu Maria Ngwenyama and he died months later.
At the Constitutional Court, it was decided that consent of the first wife is vital to validate the polygamous
marriage – this is based on the equality principle.
The court stated as follows:
“Are the first wife’s rights to equality and human dignity compatible with allowing her husband to marry
another woman without her consent? We think not. The potential for infringement of the dignity and equality
rights of wives in polygymous marriages is undoubtedly present.”
(iii) What would be the position if K, being Z's father, says he does not recognise both R and P
as his son's (Z's) widows as he never negotiated these marriages.
(5)
In terms of section 3(1)(b) of Act 120 of 1998,the marriage must be negotiated and entered into or
celebrated in accordance with customary law. Lobolo payment is not specifically mentioned as a
requirement for a customary marriage by the Act. Upon consideration of this section, courts have accepted
that ‘negotiated’ refers to the completion of the marriage negotiations by the families of the spouses, which
includes negotiation for lobolo payment.
African customary law mostly because of its traditionally patriarchal nature, often conflicts with the
inalienable constitutional principle of equality. The landmark decision of Mabena v Letsoalo 1998 2 SA 1068
(T) comes to the fore where the High Court fostered constitutional values and championed living customary
standards in respect of a lobolo dispute.
In this case, a father tried to impugn the marriage of his late son on the basis that he, as the father had not
consented to and gotten involved in the lobolo negotiations of his late son, and that the mother of the bride
represented the family in the negotiations.
The court applied section 39(2) in developing the customary law and affirmed the validity of the customary
marriage that was negotiated by a young man as a fully fledged adult and a woman who traditionally was
held not be a part of marriage negotiations on the constitutional values of human dignity and equality.
Thus the court clearly deviated from the official textbook approach in the interpretation of customary law and
applied the living customary law that recognises the living practice of the people. The court also accepted
the gender-neutral practice to be in conformity with fundamental rights provided for in the country’s
constitution.
Therefore. Although K never participated in the negotiations of these marriages, this does not affect their
validity.
The feedback provides for the main points to be covered in answering the questions but not a
comprehensive answer to them.
Before his death Z married his wife R by customary rites. After Z's death R went to register their
customary marriage at the Home Affairs Department, only to be told, to her consternation, that P had
already been to that office to register hers with the deceased. R knew that P did what she did in
order to claim Z's estate.
(i) Comment on whether Z could possibly have had two valid customary marriages, referring
to any law/legislation recognising it. (5)
Polygamy is legal under certain circumstances in South Africa. All polygamous marriages entered into in
accordance with the provisions of the Recognition of Customary Marriages Act, 1998 (Act No. 120 of
1998) are legal. Section 2(3) of this Act provides that ‘(3) If a person is a spouse in more than one
customary marriage, all valid customary marriages entered into before the commencement of this Act are
for all purposes recognised as marriages. (4) If a person is a spouse in more than one customary marriage,
all such marriages entered into after the commencement of this Act, which comply with the provisions of this
Act are for all purposes recognised as marriages.’
In addition, the recognition of polygamous marriages is confirmed in terms of Section 7(6) of the same Act
when it permits a man who is married in terms of customary law to conclude a further customary marriage
with another woman if he so wishes on condition of complying with certain procedures, namely, to apply to
a competent court for such a marriage to be legal
All customary marriages which were valid under customary law when the act came into force, whether
monogamous or polygamous, are recognised as marriages for all legal purposes. Marriages contracted after
the act came into force are only recognised if they comply with the requirements imposed by the act.
(ii) What would your comment be if R says Z never told her about his customary marriage with
P and that R and Z subscribed to Tsonga customary law which does not recognise Z's
further customary marriage, contracted without her consent as Z's senior wife.
(5)
Applying the constitutional case of Mayelane V Ngwenyama and Another 2013 (4) SA 415 (CC) where it
was decided that the consent of the wife in a marriage is required for a polygamous marriage to be valid. In
, this case, the husband Mr Hlengani Dyson Moyana married the first wife Ms Modjadji Florah Mayelane
(Applicant) in 1984. In 2008, he married Ms Mphephu Maria Ngwenyama and he died months later.
At the Constitutional Court, it was decided that consent of the first wife is vital to validate the polygamous
marriage – this is based on the equality principle.
The court stated as follows:
“Are the first wife’s rights to equality and human dignity compatible with allowing her husband to marry
another woman without her consent? We think not. The potential for infringement of the dignity and equality
rights of wives in polygymous marriages is undoubtedly present.”
(iii) What would be the position if K, being Z's father, says he does not recognise both R and P
as his son's (Z's) widows as he never negotiated these marriages.
(5)
In terms of section 3(1)(b) of Act 120 of 1998,the marriage must be negotiated and entered into or
celebrated in accordance with customary law. Lobolo payment is not specifically mentioned as a
requirement for a customary marriage by the Act. Upon consideration of this section, courts have accepted
that ‘negotiated’ refers to the completion of the marriage negotiations by the families of the spouses, which
includes negotiation for lobolo payment.
African customary law mostly because of its traditionally patriarchal nature, often conflicts with the
inalienable constitutional principle of equality. The landmark decision of Mabena v Letsoalo 1998 2 SA 1068
(T) comes to the fore where the High Court fostered constitutional values and championed living customary
standards in respect of a lobolo dispute.
In this case, a father tried to impugn the marriage of his late son on the basis that he, as the father had not
consented to and gotten involved in the lobolo negotiations of his late son, and that the mother of the bride
represented the family in the negotiations.
The court applied section 39(2) in developing the customary law and affirmed the validity of the customary
marriage that was negotiated by a young man as a fully fledged adult and a woman who traditionally was
held not be a part of marriage negotiations on the constitutional values of human dignity and equality.
Thus the court clearly deviated from the official textbook approach in the interpretation of customary law and
applied the living customary law that recognises the living practice of the people. The court also accepted
the gender-neutral practice to be in conformity with fundamental rights provided for in the country’s
constitution.
Therefore. Although K never participated in the negotiations of these marriages, this does not affect their
validity.
