Constitutional Court Rules in Favour of First Wife in Polygamy Case

Though polygamous marriages have always been a part of African culture, the spotlight focused even more on these marriages after Jacob Zuma became the president of the country. South Africa is a diverse country and polygamy is actually a norm in many cultural groups and some religions.

One cannot deny that legal complications usually arise from unions that are based on traditional and religious foundations, especially when the breadwinner dies. For one, there isn’t a lot of paperwork involved in traditional and religious unions. These are often relationships built on good faith between two or more families.

This was highlighted in the case of the widows of Hlengani Dyson Moyana. Moyana married his first wife Modjadji Florah Mayelane in 1984 but the couple did not register their marriage. Despite the marriage not being registered, a Pretoria court confirmed its validity. Moyana later took Mphephu Maria Ngwenyama as his second wife. Ngwenyama then went to the Supreme Court of Appeal to seek validation for her marriage to the deceased man. The Supreme Court of Appeal concluded that both marriages were valid.

However, on Thursday, the Constitutional Court ruled that only the first marriage was valid. According to media reports, the court said that the first wife must be aware of the second marriage and must give her consent for it to be recognised by the law. Modjadji Florah Mayelane was never given the opportunity to give her consent to the second marriage because she did not even know about it until after the event.

The parties concerned in this polygamy saga are Xitsonga. Xitsonga customary laws dictate that the first wife must be consulted when her husband wishes to marry another woman. This is in line with the principles of the constitution which prioritise human dignity and equality. This decision means that Moyana’s second wife and her children have no claim to his estate.