Durban - In a victory for women married in terms of customary law, a Durban High Court ruling on Wednesday nullified two marriages that a popular radio DJ and television presenter, Ngizwe Brian Mchunu, had entered into without the knowledge of his first wife and contrary to the law.
Provisions of the Recognition of Customary Marriages Act – which sets down the rules for men wishing to take more than one wife – are rarely adhered to and observers believe Wednesday’s order will cast fresh light on what is legal and what is not.
In particular, the act stipulates that any man wishing to take another wife must first make an application to court to approve a written contract regulating the future matrimonial property system of the marriages.
In the matter which came before Durban High Court Judge Johan Ploos van Amstel on Wednesday – and which The Mercury has previously reported on– Siphelele Nxumalo complained that Mchunu, an Ukhozi FM DJ and Roots presenter, whom she married in May 2012, had entered into another customary marriage the following year with Lindiwe Khuzwayo.
She then discovered that he had married a third time, in a civil union in October last year, when wife number three – Nqobile Mthimkulu, sent her a text message telling her about it.
In her affidavit before the court, Nxumalo – who was 25 when she married – said she was heavily pregnant when she heard from her sister-in-law that Mchunu had married again “without my knowledge and definitely without my consent”. This was the marriage to Khuzwayo.
She said she had been forced to attend the traditional official family handing over and welcoming “as if I had given my consent” and she had been belittled and embarrassed because it had been widely covered in the press.
She said her husband had never submitted the required contract to court and she was “terribly unhappy” but powerless to do anything about it.
She then learnt of this third “civil marriage” to Mthimkulu, for which she too had not given permission and which was illegal because the law stated that a civil marriage could not co-exist simultaneously with a customary marriage. It meant this marriage effectively superseded the two customary marriages.
“When I married under customary law I always considered it a possibility that he would want to take a second wife. I did not, however, expect and nor can I accept that he would flaunt our custom, customary law and the law of the country,” she said.
When the case first came before court last month, Mthimkulu attended and said she needed time to seek legal advice. She did not file any opposing papers.
On Wednesday Khuzwayo was at court and said she did not oppose the application.
A spokesman for the Legal Resources Centre, which handled the matter, said both “traditional wives” were “extremely excited” by the outcome of the case.
Mchunu did not oppose the application and has agreed to fulfilling all legal requirements from now on. Contacted on Wednesday, he did not want to comment further.
A BLOW TO PATRIARCHY - By The editor of the Mercury
When The Mercury first ran the story on Siphelele Nxumalo taking the matter to court asking that the marriages her husband, Ngizwe Brian Mchunu, had entered into without her knowledge or permission be annulled as a front page lead, some of our readers called in and others wrote letters complaining that we had taken a gossip tabloid turn.
We believe that the reaction missed the point of the story, which was to highlight how customary marriages can negatively impact on women.
It is for this reason that we have taken the unusual approach of writing a front page editorial to go with the story.
Our choice of the story, then and now, was not about the sensation pertaining to the lead character in this drama being a popular entertainment industry figure, but rather to highlight an ongoing gender injustice that many other women probably suffer in silence and endure in the name of culture and tradition.
We hope that those readers who complained about our first story will have a deeper appreciation of what the issues are and, whether or not they know of, or are interested in, the personalities involved, see this, as we do, as a matter of human rights and striking a blow against patriarchy and male privilege.
If you are still not convinced, our letters pages are yours for your input and engagement or use IOL’s Facebook and Twitter pages to comment. See links below.
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