AFRICAN CUSTOMARY LAW
IND2601
20 SEPTEMBER 2021 EXAM MEMO
TREATED QUSTIONS AND ADDITIONAL SAMMURY
IND2601
STUDDYBUDDY10111
AFRICAN CUSTOMARY LAW
9/20/21
, COMPILED BY STUDDYBUDDY10111
SHARE WITH YOUR FRIENDS, ANY MISTAKE EXPERIENCED REVERT TO YOUR STUDY GUIDE.
Question 1
1. Discuss the court’s interpretation of section 7(6) of the Recognition of
Customary Marriages Act 120 of 1998 for polygynous marriages (15)
Section 7(6) of the Recognition of customary marriages Act of 1998 basically provides that a
husband to an existing customary marriage must apply to court to have a written contract
approved which will regulate the future matrimonial property system of his marriages when he
wishes to contract another customary marriage.
Compliance – and, particularly, non-compliance – with section 7(6) was the subject of debate by
the courts in the case of Mayelane v Ngwenyama [2012] 3 All SA 408 (SCA), 2013 4 SA 415
(CC) when considering whether or not section 7(6) of the Act must be complied with to contract
a subsequent customary marriage.
Miss Mayelane alleged that she concluded a valid customary marriage with Hlengani Dyson
Moyana (Mr Moyana) on 1 January 1984. Ms Ngwenyama alleged that she married Mr Moyana
on 26 January 2008. Mr Moyana passed away on 28 February 2009. Both Ms Mayelane and Ms
Ngwenyama subsequently sought registration of their respective marriages under the
Recognition of Customary Marriages Act (hereinafter "the Recognition Act"). Each disputed the
validity of the other’s marriage. Ms Mayelane then applied to the High Court for an order
declaring her customary marriage valid and that of Ms Ngwenyama null and void on the basis
that she (Ms Mayelane) had not consented to it. The High Court granted both orders. Ms
Ngwenyama took the matter on appeal to the Supreme Court of Appeal (SCA). The SCA
confirmed the order declaring Ms Mayelane’s customary marriage valid, but overturned the
order of invalidity in relation to Ms Ngwenyama’s customary marriage. It found the latter
customary marriage to be valid as well. Ms Mayelane sought leave to appeal against this latter
part of the SCA’s order.
Although Ms Mayelane alleged in her founding papers in the High Court that Xitsonga
customary law required her consent for the validity of her husband’s subsequent customary
marriage and that she had never consented to his marriage to Ms Ngwenyama, this issue was
not considered by either the High Court or the SCA. Both courts determined the matter by interpreting
and applying section 7(6) of the Recognition Act and, therefore, did not consider it necessary to have
IND2601
20 SEPTEMBER 2021 EXAM MEMO
TREATED QUSTIONS AND ADDITIONAL SAMMURY
IND2601
STUDDYBUDDY10111
AFRICAN CUSTOMARY LAW
9/20/21
, COMPILED BY STUDDYBUDDY10111
SHARE WITH YOUR FRIENDS, ANY MISTAKE EXPERIENCED REVERT TO YOUR STUDY GUIDE.
Question 1
1. Discuss the court’s interpretation of section 7(6) of the Recognition of
Customary Marriages Act 120 of 1998 for polygynous marriages (15)
Section 7(6) of the Recognition of customary marriages Act of 1998 basically provides that a
husband to an existing customary marriage must apply to court to have a written contract
approved which will regulate the future matrimonial property system of his marriages when he
wishes to contract another customary marriage.
Compliance – and, particularly, non-compliance – with section 7(6) was the subject of debate by
the courts in the case of Mayelane v Ngwenyama [2012] 3 All SA 408 (SCA), 2013 4 SA 415
(CC) when considering whether or not section 7(6) of the Act must be complied with to contract
a subsequent customary marriage.
Miss Mayelane alleged that she concluded a valid customary marriage with Hlengani Dyson
Moyana (Mr Moyana) on 1 January 1984. Ms Ngwenyama alleged that she married Mr Moyana
on 26 January 2008. Mr Moyana passed away on 28 February 2009. Both Ms Mayelane and Ms
Ngwenyama subsequently sought registration of their respective marriages under the
Recognition of Customary Marriages Act (hereinafter "the Recognition Act"). Each disputed the
validity of the other’s marriage. Ms Mayelane then applied to the High Court for an order
declaring her customary marriage valid and that of Ms Ngwenyama null and void on the basis
that she (Ms Mayelane) had not consented to it. The High Court granted both orders. Ms
Ngwenyama took the matter on appeal to the Supreme Court of Appeal (SCA). The SCA
confirmed the order declaring Ms Mayelane’s customary marriage valid, but overturned the
order of invalidity in relation to Ms Ngwenyama’s customary marriage. It found the latter
customary marriage to be valid as well. Ms Mayelane sought leave to appeal against this latter
part of the SCA’s order.
Although Ms Mayelane alleged in her founding papers in the High Court that Xitsonga
customary law required her consent for the validity of her husband’s subsequent customary
marriage and that she had never consented to his marriage to Ms Ngwenyama, this issue was
not considered by either the High Court or the SCA. Both courts determined the matter by interpreting
and applying section 7(6) of the Recognition Act and, therefore, did not consider it necessary to have
