The Catch 22 situation of widows from polygamous marriages being discarded under customary law

This article deals with the continued ‘discarding’ of a wife by the courts. The courts do so by declaring the marriage of a second or later wife in a dual (polygamous) marriage void in circumstances where the husband failed to adhere to the provisions (especially s 7(6)) of the Recognition of Customary Marriages Act 120 of 1998 when entering into the subsequent marriage while already married. This declaration of voidness usually occurs after the death of the husband, and has devastating legal and emotional consequences for the ‘discarded’ wife. This is especially heartbreaking as she herself and the community in which she lives regarded her as legally married. The scenario played itself out again in the case of MM v MN 2010 (4) SA 286 (GNP). This judgment is discussed from a historical perspective with reference to the above-mentioned Act as well as the legislation that preceded this Act. The success of the current statute in light of the objects thereof is discussed. It is concluded that interpretation by the courts of the current legislation has created a new type of discarded widow – and as such the Act and the courts have not succeeded in protecting the wives, as was intended by the legislation. Before the current Act, it was the customary wife that was discarded by the law in favour of the civil wife. Today, it is the subsequent wife that is discarded – irrespective of the nature of the marriage – as the first marriage takes preference over any other marriages. There is thus still a discarded wife – all because of the inaction of a husband who ignored the existing legislative provisions.