Mayelane v Ngwenyama and Minister for Home Affairs: a reflection on wider implications
Authors Chuma Himonga, Anne Pope
Affiliations: Professor of Law in the Department of Private Law, University of Cape Town. She holds the South African National Research Foundation Chair in Customary Law; Associate Professor in the Department of Private Law, University of Cape Town
Source: Acta Juridica, 2013, p. 318 – 338
The recent Constitutional Court decision in Mayelane v Ngwenyama and Minister for Home Affairs raises several interesting issues concerning customary marriage and related aspects. In particular, the commentary reflects on the scope and effect of the decision, methods of ascertainment of customary law and the measures needed to balance and protect the competing rights of a first wife and subsequent polygynous wives in a customary marriage. Further issues include consideration of use of the mero motu powers of the Court and of the realities of the implementation of judicial decisions and other efforts directed at legal change. The authors conclude that the decision makes a valuable contribution to this line of jurisprudence insofar as ascertainment of living customary law is concerned but also that it misses important opportunities to clarify and guide issues relating to women who marry under customary law.