Neutral citation: Ngwenyama v Mayelane & another (474/11)  ZASCA 94 (1 June 2012)
Coram: Mthiyane DP, Ponnan JA et Ndita AJA
Heard: 14 May 2012
Delivered: 1 June 2012
The core issue in the recent case of Ngwenyama v Mayelane & another (474/11)  ZASCA 94 (1 June 2012), at  was:
"... whether the failure by the husband to make an application to court to approve a written contract regulating the matrimonial property system of both the first and second marriages, as envisaged in s 7(6) of the Recognition of Customary Marriages Act, invalidates the subsequent customary marriages from inception, in the absence of an express provision in the Act to that effect."
It was held that that even though the wording of s 7(6) is couched in a peremptory language, courts were, when interpreting a statutory provision enjoined to prefer an interpretation that falls within the constitutional bounds over that which does not. If not, such an approach would result in untold hardship to women married according to customary law and would have adverse effects on the children born to such marriages as they would be rendered instantly illegitimate. Properly construed, the legislature could never have intended a failure to comply with s 7 (6) to render an otherwise valid customary marriage invalid.
Therefore per Ponnan JA at  "... the consequence of such non-compliance is that the subsequent marriage would be valid but that it would be one out of community of property. It plainly cannot be a marriage in community of property as that would imply the existence of two joint estates, which it is clear cannot co-exist. That conclusion, it seems to me, would afford sufficient protection to the wife of the first customary marriage."