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Ascertainment of Customary Law: Case Note on MM v MN

Fatima Osman


Froneman J states in MM v MN: ‘The process of determining the content of a particular customary norm can present some challenges.’ This case gives rise to a number of issues which have been discussed in some part elsewhere, however this note considers the Constitutional Court’s approach in MM v MN in ascertaining customary law and the difficulties the Court experienced. The issue in MM v MN was whether a polygamous customary marriage was validly concluded in Tsonga customary law and in particular, whether the first wife’s consent was required for the subsequent customary marriage. This note scrutinises how the Constitutional Court ascertained the Tsonga customary law on the issue. Tentative conclusions include that innovation and respect for customary law may not be enough for the judgment to stand as good precedent.

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