I miss Justice Albie Sachs. Sachs, whose term as a Constitutional Court judge came to an end in 2009, was the one judge best capable of engaging with the way in which different forms of power (associated with gender, race, culture, sexual orientation and economic privilege), operate along different axes in our society to marginalise some and benefit others.
Sachs understood that power is diffuse and that we could all potentially be both the beneficiaries and the victims of legal rules which almost always promote the interests of some to the detriment of others (even others who may themselves be relatively marginalised). Legal rules may affect a poor, black, rural women differently from middle-class, black, urban men; just as they may affect middle-class, gay, white, men differently from the way they affect working-class, white lesbians.
When judges in South Africa are called upon to develop the customary law to bring it in line with the spirit, purport and objects of the Bill of Rights (or when called upon to develop the common law relating to the regulation of intimate relationships) they often fail to recognise that overlapping and often conflicting interests loom large in the exercise. Justice Sachs was one of the few judges who consistently managed to identify these often conflicting interests and seriously attempted to resolve the tensions in a manner that recognised the multiple forms of harm caused by the enforcement of certain legal rules.
Unfortunately, both the majority and minority decisions in the Constitutional Court judgment in Mayelane v Ngwenyama and Another fail to display the same kind of sensitivity towards the way in which power operates in South Africa. Even more unfortunately Patekile Holomisa failed to acknowledge the deeply oppressive effects of patriarchal legal rules – whether these rules are sourced from indigenous customary law or from the customary law of the colonisers (also sometimes referred to as common law).
The facts of the case are relatively straightforward. Ms Modjadji Mayelane alleged that she concluded a valid customary marriage with Hlengani Dyson Moyana in 1984. Ms Mphepu Ngwenyama alleged that she married Mr Moyana as his second wife in January 2008. Mr Moyana passed away a year later in February 2009. The legal issue was whether the second marriage was a valid marriage in terms of Xitsonga customary law (and hence, whether the second wife could also legally inherit from the deceased). As Mr Moyana did not obtain the consent of his first wife (Ms Meyelane) when he married his second wife (Ms Ngwenyama), his first wife claimed that the second marriage was invalid (and hence that the second wife had no inheritance rights).
The majority judgement, authored by Froneman, Khampepe and Skweyiya (Moseneke, Cameron and Yacoob concurring), found that the Recognition of Customary Marriages Act does not require the consent of a first wife for the valid conclusion of a subsequent polygynous marriage in terms of customary law. This meant that, in as far as Xitsonga customary law did not require consent from the first wife for the conclusion of a valid polygynous marriage (something the so called “experts” were not in total agreement on), the customary law had to be developed. This development then required the court to declare the second marriage between Mr Moyana and Ms Ngwenya null and void.
In coming to this conclusion the judgment made many wise and relatively uncontroversial statements. The Constitutional court once again endorsed the notion that ours is a living customary law that requires innovation in determining its “living” content, as opposed to the potentially stultified version contained in past legislation and court precedent. It also affirmed the view that:
caution, patience and respect are needed to ensure that, in taking its place as an institution of our democratic dispensation, living customary law reflects the rights and values of the Constitution from which it draws its legal force.
The judgment also focused on the first wife’s rights to equality and human dignity and stated that allowing her husband to marry another woman without her consent would not be compatible with the protection of these rights of a first wife which are protected by our Bill of Rights. While the court must accord customary law the respect it deserves, it cannot shy away from the fact that “even in idyllic pre-colonial communities, group interests were framed in favour of men and often to the grave disadvantage of women and children”.
Where subsequent customary marriages are entered into without the knowledge or consent of the first wife, she is unable to consider or protect her own position. She cannot take an informed decision on her personal life, her sexual or reproductive health, or on the possibly adverse proprietary consequences of a subsequent customary marriage. Any notion of the first wife’s equality with her husband would be completely undermined if he were able to introduce a new marriage partner to their domestic life without her consent.
It is obvious that a wife has no effective autonomy over her family life if her husband is entitled to take a second wife without her consent. Respect for human dignity thus:
requires that her husband be obliged to seek her consent and that she be entitled to engage in the cultural and family processes regarding the undertaking of a second marriage. Given that marriage is a highly personal and private contract, it would be a blatant intrusion on the dignity of one partner to introduce a new member to that union without obtaining that partner’s consent.
In response to these findings Patekile Holomisa warned that the court ruling would have a negative effect on tradition.
Yes, it is desirable that the existing wife be consulted but not give her all the power to decide,” said Holomisa. “There is no limit to polygamy except being able to provide for the family. It’s going to force men to divorce and marry again, which is not how it’s done in African culture.
But it seems to me that both Holomisa and the judges of the Constitutional Court failed to grapple with the effects of customary law rules on polygynous marriages on the purported second (or subsequent third or fourth) wives. The subsequent wives might well believe that they enter into a valid marriage with the man who purports to marry them. But if the first wife does not give consent for the second marriage, no valid second marriage comes into existence. This means that in the absence of consent by the first wife, the subsequent wives would have no rights and therefore would not protected by the law at all.
In this instance the second wife was “married” to her husband for only one year. But what would have happened if the second wife had been “married” to the husband for fifteen years, but the first wife had never given consent? If the husband then died or if the husband decided to leave the second wife, she would enjoy absolutely no legal protection.
As the minority pointed out, the majority decision also avoids the question of whether the consent of the second and third wives would be required for the valid conclusion of subsequent marriages by later wives. Because the facts before the court did not raise this problem, the majority decided not to address it, stating that “living customary law should be allowed its own space to adjust”. Meanwhile second and third wives whose husband takes another wife may well have their dignity and equality rights undermined until such time as the customary law develops or such time as someone has enough money to get the customary law developed by the courts to protect the second and third wives.
Judging from the statement of Patekile Holomisa, the lack of power of second and subsequent wives would acutely affect their ability to live lives of dignity and respect. If men who enter in polygynous marriages continue to believe – as Holomisa seemingly does – that women are in effect the property of their husbands (who can do as they please as long as they can provide for their families), the position of subsequent wives would remain precarious. They would run the risk of agreeing to enter into “marriages” thinking it is valid when it is not and they would hence not be protected from further exploitation. They would also not be required to give consent for their husband marrying a third or later wife and would therefore not have any say about how their intimate private relationships are arranged.