Sailing between Scylla and Charybdis: Mayelane v Ngwenyama

Helen Kruuse, Julia Sloth-Neilsen

Research output: Contribution to journalArticlepeer-review

4 Citations (Scopus)

Abstract

Mayelane v Ngwenyama 2013 4 SA 415 (CC) is arguably the most important judgment concerning the recognition of customary marriages in recent times. This article attempts to unpack some of the many issues that arise from the case, namely: (a) the practical difficulties associated with ascertaining living customary law and the problems of identifying legal versus social norms; (b) the meaning of consent as a requirement of a customary marriage; (c) the implications of the case for equality between multiple wives in a customary marriage, and as between wives across customary marriages of different cultural traditions; and (e) the implications of the case for equality considerations more broadly. While the authors sympathise with the court in respect of the complex decision before it, it questions the Court’s method and result, specifically for the equality rights of a second (or further) “wife” in a Vatsonga customary marriage. The authors suggest that the issues should be put to democratic deliberation by the legislative arm, rather than leaving courts in the unenviable position of having to decide these matters.

Original languageEnglish
Pages (from-to)1709-1738
Number of pages30
JournalPotchefstroom Electronic Law Journal
Volume17
Issue number4
Early online date11 Apr 2014
DOIs
Publication statusPublished - 14 Nov 2014

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