‘If first wife says no, it means no’
Two NGOs have asked the Constitutional Court to order that a man who wants to marry a second wife can only do so if his first wife agrees – irrespective of the African culture involved.
On Tuesday, advocates representing the Legal Resources Centre and the Women’s Legal Centre Trust argued that the constitutional rights to equality and dignity demand that first wives must give consent before their husband takes a second wife.
Advocate Tembeka Ngcukaitobi, representing the Legal Resources Centre, said customary or traditional African law in South Africa was still “characterised by patriarchy”.
Ngcukaitobi added: “Polygamy is often criticised for (in effect) embracing a form of patriarchy.”
“(The consent of the first wife) should be made a requirement of law, regardless of any factual situation that may exist among the Tsonga, the Xhosa or Zulu people.”
The NGOs are relying on a section of the Constitution that allows South African courts to develop common law or customary law to promote the “spirit, purport and objects of the Bill of Rights”.
If the court does what the NGOs are asking, its ruling is likely to be a controversial one.
Phathekile Holomisa, leader of the Congress of Traditional Leaders of SA, told City Press that “express consent of the first wife is not part of the practice of polygamous marriage”.
“To require the first wife to give express consent at all times would amount to a denunciation of the right to marry more than one wife in accordance with custom.”
But Sizani Ngubane, director of the Rural Women’s Movement, hit back, telling City Press: “If she says no, the answer is no.”
Ngubane was critical of Holomisa’s suggestion that the Constitutional Court should not rule on whether the consent of the first wife is necessary.
“It’s so that they can abuse it in whatever way they want to abuse it,” said Ngubane.
In the case before the court, Modjadji Mayelane is disputing her husband of 24 years ever entered into a second marriage with Maria Ngwenyame.
Mayelane says the first she heard of this second marriage was when informed of it by the department of home affairs.
Mayelane argues there could not have been a marriage between her husband and Ngwenyame because no contract governing matrimonial property was ever certified by a court.
She said she would have had to consent to a second marriage in terms of Tsonga custom.
The section of the act that states a court-certified antenuptial contract is necessary is the same one that caused controversy around President Jacob Zuma’s polygamous marriage.
In 2010 The Mercury questioned the legality of Zuma’s second and third marriages because it couldn’t find proof of the required antenuptial contracts.
The Legal Resources Centre and Women’s Legal Centre Trust have argued that marriages where a second wife is taken without consent should not be automatically unlawful, but should be “voidable”.
This means second marriages would be valid unless challenged by a first wife in court.