Victory for first wives' club

Modjadji Mayelane got the shock of her life when, a month after her husband of 25 years died , she learned that he had taken a second wife the year before.

She made the discovery in February 2009 when she tried to register her customary marriage.

Mayelane and Mphephu Ngwenyama approached the courts when neither couldregister her marriage to the late Hlengani Moyana in terms of the Recognition of Customary Marriages Act.

After a protracted legal battle, which landed in the Pretoria High Court and later the Supreme Court of Appeal, Mayelane yesterday became the first Shangaan woman to have her husband's second customary marriage invalidated by the Constitutional Court.

According to Xitsonga customary law, the first wife must be told of her husband's plans to marry another wife and give consent.

Jan Bekker, a customary law expert at the University of Pretoria, said the judgment confirmed an "ancient truth" and set a precedent for customary law in South Africa.

"The court's decision speaks volumes because it is standard practice in customary law for the husband to inform his first wife when he wants to take another wife," said Bekker.

Questions about the requirement that a first wife in a customary marriage consent to the polygamy of her husband were raised.

Judges Johan Froneman, Sisi Khampepe, Thembile Skweyiya - with whom Deputy Chief Justice Dikgang Moseneke, Judge Edwin Cameron and retired judge Zak Yacoob concurred - yesterday ruled that Xitsonga customary law had to be developed to include a requirement that a first wife consent to a subsequent marriage.

Moyana's elder brother, Mzamani , had told the court that his family knew nothing of his brother's marriage to Ngwenyama and he had denied paying ilobola for her. "In terms of our custom, the first wife must be consulted and consent to the marriage to the second wife [and] the blood relatives of the husband must be present to witness the marriage."

Bekker said that a marriage was a home, and that when a man had more than one wife, he brought all of them together and they became a family.