For the past three years, Mphephu Ngwenyama and her children have lived in economic limbo. Her husband, Hlengani Moyana, died in 2009 and since then his heirs have not received anything from his estate: Moyana had secretly had two wives, it turned out, and Ngwenyama had been left in a vulnerable legal position.
But last week the Supreme Court of Appeal ruled on a case that could help women in polygynous relationships, like Ngwenyama, access their rights to inheritance, maintenance and other assets after the death of a husband and father.
A polygamous marriage involves a relationship in which there are more than two spouses. A marriage described as polygynous, however, refers specifically to a situation in which one man has two or more wives.
The end of the legal struggle to have her marriage recognised by the state will be of comfort to Ngwenyama. But first, lawyers from Legal Aid in Johannesburg, who represented her case before the Supreme Court of Appeal, will have to contact their colleagues at a field office in Tzaneen. From there, a representative will drive out to her home, deep in Limpopo, to inform her of the judgment and explain what it means. Ngwenyama lives in a traditional hut in a village almost 300km away from Tzaneen and can’t be reached by phone because of the poor signal in the area.
Ngwenyama was married according to African custom and tradition, but her marriage was never registered. When her husband died, she raised money to contribute towards the funeral. Her husband’s family also asked her to partake in his funeral rites.
She later approached the department of home affairs to have her marriage recognised in terms of the Recognition of Customary Marriages Act. But his death certificate listed him as “never married”. And then she learned that she had not been her husband’s only wife.
Modjadji Mayelane, the first wife in the marriage, also found out about the polygynous nature of her marriage after approaching the department of home affairs to recognise her marriage. Not long after, she went to court to have the second marriage declared invalid.
Mayelane hadn’t been informed of her husband’s intention to marry again and he hadn’t asked for her consent, as is custom. More pertinently, from a legal perspective, he hadn’t complied with one of the legal requirements for a customary marriage – ensuring that there is a written contract that will define how property will be shared among the wives.
According to section 7(6) of the Recognition of Customary Marriages Act, 120 of 1998, when a husband in a customary marriage wants to enter into a second or subsequent marriage, he must apply to the court to approve a written contract that will regulate the future matrimonial property system of the marriages.
A high court ruled that because there was no court-approved written contract to this effect, the second marriage was void, leaving Ngwenyama and her children unable to inherit.
Ngwenyama is the face of many second and third wives across the country.
Although polygyny is on the decline, with less than 4% of women involved in such relationships according to the most recent demographic data, several thousand customary marriages are registered each year. Yet, according to the Women’s Legal Centre, only a handful of section 7(6) contracts are entered into.
Women involved in polygynous relationships are often poor, rural and illiterate – but that doesn’t mean that the affluent traditionalists are immune to disputes over matrimonial property rights.
Mandla Mandela, the grandson of Nelson Mandela, has been engaged in a running battle with his first wife, who tried to interdict him from taking a second concurrent wife until after he’d finalised a divorce settlement with her. His first marriage was a civil one, and polygyny cannot co-exist with a civil marriage under South African law. You either have one wife in a civil marriage or multiple wives in customary marriages.
When President Jacob Zuma married fourth concurrent wife Bongi Ngema earlier this year, questions were raised about the legal form of his marriages. Did the president conclude a section 7(6) contract with Ngema? And if so, what did it entail?
With four wives and 21 children, the president’s situation is a natural point of discussion for anyone with an interest in the legalities of customary marriage. Although Zuma always speaks of his marriages and his traditionalism with great pride, the presidency has maintained that such matters are private.
Lack of recognition
A woman whose marriage is not recognised by the state has much to lose. She would not be able to administer her husband’s estate, may have no claim for maintenance against an estate, and could even stand to lose her home to her husband’s more distant family.
Contralesa general secretary Kgoshi Setlamorago Thobejane says many people don’t see the need to register a customary marriage.
“Once they’ve paid lobola and the two families appreciate that they’re married to each other, they don’t normally expect to go to a third party, which is an officiating authority, [to register the marriage],” he says.
Thobejane says that although traditional leaders had mobilised to inform communities of the need to register customary marriages, more work still needs to be done.
Achmed Mayet, an attorney with the Impact Litigation Unit at Legal Aid in Johannesburg which picked up Ngwenyama’s case, points that in many instances, husbands don’t want to register subsequent marriages because they’d have to get the first wife’s consent to do so. And also because it would require them to have frank discussions about inheritance if they did, he adds. So they choose to conduct additional marriages “on the quiet”.
But even for those who do want to register their marriages, the process can be complicated. “In the city you can still get to home affairs but in many [rural] centres people don’t even know where to go register,” he says.
Aninka Claassens, a researcher at University of Cape Town’s Race, Law and Gender Unit, says that the legal requirements of the Act have made it “virtually impossible” for people to register polygynous marriages in practice.
“That requirement means people have to go to a lawyer to draw up [a marriage] contract. It really stands in the way of people being able to register customary marriages,” she says.
For women wanting to register their marriages themselves, there are additional barriers. Lawyers say its not uncommon for officials to turn away women who want to register their customary marriages unless they’re accompanied by their husbands even though its possible to register a marriage in the absence of one’s spouse.
Women in polygynous relationships are often particularly vulnerable to discrimination, according to Hoodah Abrahams-Fayker, an attorney at the Women’s Legal Centre.
“They’re in rural areas, they’re primary care-givers, and [they’re] indigent. Access [to the law] for them – even transport – is difficult,” she says.
Often they’re not even aware that the marriage must be registered. The first step then would be to ensure women know their rights and how to exercise them.
It’s important to reach out to women and communities directly on the subject, says Abrahams-Fayker. Running workshops and providing booklets that explain the issue invernacular languages to groups that work closely with women could help greatly, she adds.
Back to court
The Ngwenyama case was eventually escalated to the supreme court and her lawyers argued that the high court had made the wrong decision.
The Women’s Legal Centre, which entered the case as friends of the court, submitted that failing to recognise parties married in accordance with African customary law, where the marriage was not registered by the husband, indirectly discriminated against women.
It said section 7(6) was also problematic because it placed the onus to register the marriage on husbands. They argued that even if they were aware of the law – which many women are not – because women often have unequal bargaining power in relationships, it would be difficult for them to get their husband to comply with it.
In her judgment on Friday, acting Supreme Court Judge Thandazwa Ndita ruled that the failure to comply with section 7(6) of Act does not invalidate customary marriages.
Ndita reasoned that the purpose of the Act was not to invalidate subsequent marriages but to protect the rights of both wives – not just the first – and to regulate matters such as property rights, maintenance claims and inheritance.
Ndita also said: “It would be unjust to invalidate an otherwise valid marriage on the basis of the husband’s failure when no duty was placed on the wife.”
In effect, the court ruled that the failure of her husband to conclude a section 7(6) contract did not invalidate Ngwenyama’s marriage and that under the law her marriage is just as legitimate as Mayelane’s.
The ruling has been seen as a victory for the advancement of women’s rights but the barriers preventing access to the law still remain.