Monday 04 June 2012, the judgement delivered on Friday by the Supreme Court of Appeal (SCA) in the matter of Ms MM Ngwenyama is a victory towards advancing the rights of women. But it also highlights the many inadequacies within the South African legal system.

The SCA found that Ms Ngwenyama’s marriage was still valid even though her deceased husband had failed to register the marriage in terms of the Recognition of Customary Marriages Act 120 of 1998 (RCMA). In doing so, the SCA overturned a judgment of the High Court, which had found that such marriages are not valid. The effect of the SCA ruling is that wives in polygamous marriages, whose husbands have not done the required contract, are no longer barred from asserting claims for maintenance and inheritance.

The incidence of polygamous marriage amongst high profile politicians and other prominent South Africans raises a number of issues concerning the rights of the spouses and children in such marriages. While these are the marriages that attract attention, thousands of women are living in polygamous marriages in South Africa and suffer the hardship of non recognition of customary marriages. The impact is that this often results in a spouse losing her home as well as any claim for maintenance against the estate or loss of support in the case of an unlawful death. Further, the effect of non-registration is that women are denied the right to administer the estates of their late husbands.

It is for this reason that the law is clear that a failure to register a customary marriage does not affect the validity of the marriage. However in the case of polygamous marriages, the law was silent regarding the effect of a husband’s failure to follow the procedure set out in Section 7(6) of the RCMA. This section requires a ‘husband’ (not ‘spouse’) who wishes to enter into a second or subsequent customary marriage to apply to court for the approval of a written contract.

"According to the law, it’s a husband's duty to register a marriage. In a lot of cases, when you look at the role of women in a marriage, the wife is in a vulnerable position. She pays the role of the primary caregiver staying at home to maintain the household and care for the children. The husband is the bread winner in the family which makes him economically empowered, as well as placing him in a dominant position, which means the wife may not feel that she is able to enforce the registration of the marriage,” says Hoodah Abrahams-Fayker, Attorney at the Women’s Legal Centre

The High Court was called upon in the Ngwenyama case to decide on the effect of non compliance with section 7(6). The court had to deliberate on the validity of Ms Ngwenyama’s marriage. It found that her marriage to her deceased husband, as second wife in a polygamous marriage, did not comply with the legislative requirements contained in section 7(6) of the RCMA because her husband had not entered into the requisite contract. The court reasoned that the absence of compliance with section 7(6) of the RCMA rendered the second marriage invalid. Ms Ngwenyama took the matter on appeal to the SCA, as the failure to recognise her marriage meant that she lost her right to inherit.

Abrahams-Fayker continues by saying her organisation found that during its investigations there are none, or at least, only a few cases where Section 7(6) contracts had been entered into. Which means the majority of polygamous marriages in South Africa would have been invalid on the reasoning of the High Court, depriving many women of a legal remedy in circumstances where they did not legally have the power to register such contracts, even if they could negotiate with their husbands and insist that they be entered into, assuming that they knew about the RCMA’s provisions.

The Women’s Legal Centre was a friend of the court in this matter and made submissions that 7(6) of the RCMA must be seen in the context of that Act as a whole, and the Constitution in terms of the fundamental rights it seeks to protect. By failing to acknowledge parties married in accordance with African customary law where the marriage is not duly registered by the husband, indirectly discriminates against women.

“Notwithstanding the constitutional judgement on Friday, we know that many women continue to experience acute discrimination with regards to our legal system. Due to myriad of reasons but mostly they do not have access to the legal and financial support required to fully benefit from our democracy and the rule of law,” concludes Abrahams-Fayker

For more information:
Jennifer Williams
Director Women’s Legal Centre
078 803 3110
Jennifer@wlce.co.za

Hoodah Abrahams-Fayker
Attorney Women’s Legal Centre
072 252 0333
hoodah@wlce.co.za