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Polygamous Marriages

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  • November 3, 2008
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This essay will be looking at the situation of polygamous marriages with regards to the Constitution and with regards to recent precedent. A number of cases will be looked at to provide insight into the constitutionality of polygamous marriages in South Africa. The leading case and the most recent case that will be looked at is the case of Hassan v Jacobs No and Others . International human rights instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa will then be looked at to establish whether recent precedent on polygamous marriages are in line with international Human Rights Instruments. Polygamy provides that a man marry women of your choice, two, three or four, however many he feels appropriate. The position of polygamous marriage in South Africa has in the past not been part of South African law, even though it is a well known practice in the culture of the indigenous people of South Africa. This culture and law known as customary law had very little recognition in South African Law until the Constitution was created to represent people from all the different spheres of life in South Africa. In recent times and in the most recent case of Hassan v Jacobs No and Others , polygamy was the central issue at hand, and the court went on to interpret polygamous marriages with regards to the Constitution, Customary marriages Act and then went further to International human rights instruments to see whether or not to accept polygamous marriages would be unconstitutional and against international human rights. In the case of Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others the court looked specifically at section 39(2) of the Constitution a court, when interpreting legislation and developing the common or customary law, is obliged to promote the spirit, purport and objects of the...