47
“[74]
Given that marriage is a highly personal and private contract, it would
be a blatant intrusion on the dignity of one partner to introduce a new member
of that union without obtaining that partners consent.
[75]
In
accordance
with
the
Court’s
jurisprudence
requiring
the
determination of living customary law that is consistent with the Constitution,
we thus conclude that Xitsonga customary law must be developed, to the
extent that it does not yet do so, to include a requirement that the consent of
the first wife is necessary for the validity of a subsequent customary marriage.
This conclusion is in accordance with the demands of human dignity and
equality. These demands are evident from the terms of the Recognition Act…
[83]
The Recognition Act is thus premised on a customary marriage that is
in accordance with the dignity and equality demands of the Constitution. A
customary marriage where the first wife has consented to the further marriage
conforms to the principles of equality and dignity as contained in the
Constitution. Where the first wife does not give consent, the subsequent
marriage would be invalid for non-compliance with the Constitution.”
[83]
Nhlapo contended that in customary law, however, the consent of both the
man and the woman is already a requirement for a valid ukuthwala. This view
was shared by Inkosi Mahlangu on behalf of the first amicus curiae.
[84]
A further requirement for a valid customary marriage considered by the amici
was the issue of the permissible marriageable age. Nhlapo recorded that
amongst the AmaXhosa, marriageable age for a woman is considered to be
when she is able to bear children. However given the clear indication by the
legislature, it appeared that for an ukuthwala to be considered validly
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