The Netflix series The Polygamist has taken the social media world by storm. The shenanigans of its chief protagonist, Jonasi, have left viewers with mixed feelings; some resent the character outright, while others find a curious sympathy for his unorthodox household. Whatever one makes of him, the series raises a question that is rather less about entertainment and rather more about law. Polygamy, agree with it or not, is practised across many cultures. So what would happen, in an immigration context, when a polygamist sought a visa for his several, nay many, wives? Is that even permissible under South African law?
The definition of “spouse”
The starting point is the Immigration Act 13 of 2002. The Act defines a “spouse” as a person who is party to a marriage, or a customary union, or to a permanent homosexual or heterosexual relationship that calls for cohabitation and mutual financial and emotional support, and which is proven by a prescribed affidavit substantiated by a notarial agreement. The word “marriage” is itself defined to include a marriage concluded under the Marriage Act 25 of 1961 and a legal marriage concluded under the laws of a foreign country. A “customary union” means a union recognised under the Recognition of Customary Marriages Act 120 of 1998.
A spouse, so defined, falls within a citizen’s or permanent resident’s “immediate family.” That is the gateway to the relevant relief; a spousal visitor’s visa under section 11(6), a relative’s visa under section 18, and, in due course, permanent residence under section 26(b).
Civil marriages: polygamy does not arise
For civil marriages, the question of polygamy simply does not arise. The Marriage Act and our common law are built on monogamy; a person who purports to conclude a second civil marriage while the first subsists commits bigamy, which most jurisdictions criminalise. A civil marriage therefore admits of one spouse at a time, and the visa regime mirrors that. There is nothing to discuss here, and nothing to litigate.
Customary marriages: a different matter entirely
Customary marriage is another matter altogether. The Recognition of Customary Marriages Act expressly contemplates polygyny. A husband who is already party to a customary marriage, and who wishes to take a further wife, must apply to a competent court for approval of a written contract regulating the future matrimonial property system of his marriages, as section 7(6) requires. That requirement is important, but the better view, following the Constitutional Court’s treatment of the issue in Mayelane, is that non-compliance with section 7(6) does not automatically render the further customary marriage invalid. The validity enquiry remains rooted in the Act and the applicable living customary law, including the requirements for a valid customary marriage and, where applicable, the consent of an existing wife.
Where those requirements are satisfied, the husband may lawfully have more than one wife, each of whom is, in law, his spouse. This is not a fringe phenomenon; it is a recognised institution carrying the full weight of statutory protection.
It follows, at least on the plain terms of the definition, that each wife in a validly concluded polygynous customary marriage is a “spouse” and a member of the citizen’s or resident’s “immediate family.” Nothing in the definition confines “customary union” to one union at a time. The plural is not excluded.
The exclusivity affidavit, and where the practice goes wrong
Here is where the practice parts company with the text. The requirements for proving a spousal relationship, including the prescribed affidavit and the notarial agreement, are drawn from, and are directed at, the third limb of the definition; that is, the “permanent homosexual or heterosexual relationship,” commonly described as the life partnership. The affidavit requires the parties to attest that their relationship is to the exclusion of any other person, and that neither of them is party to a marriage. That attestation is entirely fitting for a life partnership, which is a marriage-like relationship without formal rites, and which the law treats as monogamous by design. It is wholly unfitting for a party to a customary marriage, and still more so for a party to a polygynous one.
The difficulty is that, in practice, the Department of Home Affairs tends to treat customary marriages as though they were life partnerships, and to demand the same exclusivity affidavit. A polygamist cannot honestly sign such an affidavit, because his relationship is, by its very nature and by operation of customary law, not to the exclusion of all others. The result is that a class of lawful spouses is, in effect, written out of the visa regime by a requirement that was never designed for them. An instrument crafted to test the bona fides of a life partnership is repurposed as a bar against polygamy that the Act itself nowhere imposes.
The constitutional duty to give effect to customary and common law marriages
This is not a mere drafting quibble. The Constitution imposes a positive duty to give effect to customary and religious marriages, and to do so in a manner consistent with equality and dignity. Section 211(3) obliges the courts to apply customary law where it is applicable, subject to the Constitution. Section 39(2) requires that, in interpreting legislation and developing customary law, the spirit, purport and objects of the Bill of Rights be promoted. Sections 15, 30 and 31 protect freedom of religion and culture and the rights of cultural and religious communities, while sections 9 and 10 guarantee equality and human dignity.
The Constitutional Court has given these provisions real content. In Mayelane v Ngwenyama 2013 (4) SA 415 (CC), the Court held, in the context of Xitsonga customary law as developed consistently with the Constitution, that the first wife’s consent was required for the validity of her husband’s subsequent polygynous customary marriage, anchoring that development in dignity and equality. In Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC), the Court addressed discriminatory proprietary consequences in monogamous customary marriages, while in Ramuhovhi v President of the Republic of South Africa 2018 (2) SA 1 (CC), it confronted the proprietary position of wives in polygamous customary marriages more directly. And in Women’s Legal Centre Trust v President of the Republic of South Africa 2022 (5) SA 323 (CC), the Court declared the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979 constitutionally invalid to the extent that they failed to recognise and regulate Muslim marriages solemnised in accordance with Sharia law but not registered as civil marriages, with interim relief pending legislative reform.
The constitutional trajectory is unmistakable. Our law has moved steadily towards recognising the diversity of marriage, rather than measuring every union against a single, monogamous, civil template. An immigration practice that quietly insists on monogamy, through the back door of an exclusivity affidavit, sits uneasily with that trajectory.
What Funeka Khan tells us
The point is sharpened by Khan v Minister of Home Affairs and Others (Western Cape Division, Cape Town, case number 8231/2014; [2014] ZAWCHC 99, 27 June 2014), in which Rogers J considered the very interaction between the Immigration Act’s definitions and the substantive law of marriage. The applicant’s husband, a Pakistani national already married in Pakistan, had relied on a relative’s permit as the spouse of a South African citizen. The Department contended that, because of the foreign marriage, he could not in law be the applicant’s spouse.
Rogers J rejected the premise that the Immigration Act’s definitions decide the validity of a marriage. Whether a person is a “spouse” by virtue of a marriage or a customary union, he held, is determined by the Marriage Act, the Recognition of Customary Marriages Act and the common law, and not by the Immigration Act. Crucially, he held that the “permanent homosexual or heterosexual relationship” limb of the definition, together with the prescribed affidavit and proof of relationship that accompany it, is relevant only where a foreigner claims spousal status on the basis of such a relationship; it is inapposite where the claim rests on an actual marriage or customary union. The prescribed affidavit, he observed, is framed for life partnerships and is out of place for parties to a civil marriage.
That reasoning is the doctrinal answer to the practice described above. If the affidavit and the exclusivity attestation belong to the life-partnership limb, they cannot lawfully be imposed on a person who qualifies as a spouse through a marriage or a customary union. A spouse in a polygynous customary marriage does not claim through the life-partnership route at all; the requirement designed for that route ought not to be the obstacle that defeats the application.
Conclusion
So, can a polygamous marriage qualify for the spouse visa? For customary marriages, the better view is that it can. The Act’s definition of spouse expressly embraces the customary union; the Recognition of Customary Marriages Act expressly permits polygyny; and each wife in a validly concluded polygynous customary marriage is, in law, a spouse and a member of the immediate family. The exclusivity affidavit, properly understood, is an instrument of the life-partnership limb, and it ought not to be visited upon parties to a marriage. To insist otherwise is to read into the Act a monogamy requirement that Parliament did not enact, and to do so in tension with the constitutional duty to give effect to customary marriage.
The conclusion is principled, however, rather than effortless. An applicant must still prove a valid customary marriage. After Mayelane, that may require proof of the first wife’s consent where the applicable customary law, properly ascertained and, if necessary, constitutionally developed, makes that consent a validity requirement. Section 7(6) also remains important: a court-approved contract regulating the matrimonial property consequences should be sought where a further customary marriage is contemplated, even though non-compliance with that provision is not, without more, the same as saying the marriage is void. The Department retains a legitimate interest in guarding against marriages of convenience, and each additional spouse enlarges the family unit that the State is asked to accommodate. Foreign polygamous marriages remain the harder case; the older authority of Seedat’s Executors v The Master (Natal) 1917 AD 302 declined to recognise a foreign polygamous union as a marriage at all, though Women’s Legal Centre Trust has since unsettled the premise that potentially polygamous religious marriages necessarily fall outside legal protection, leaving the immigration position genuinely open and, in my respectful view, ripe for clarification.
The cleaner solution may lie on the horizon. The proposed single Marriage Bill, introduced as Marriage Bill B43-2023, seeks to consolidate the law relating to civil, customary, religious and other marriages, including polygamous marriages, within one statutory framework. Until comprehensive reform is enacted and brought into force, the question will be answered case by case, and a polygamist who wishes to bring his wives to South Africa will be navigating a regime that recognises his marriage in principle while too often resisting it in practice.
For Jonasi, then, the answer would turn less on his charm and more on the strength of his marriage certificates. For the rest of us, it is a useful reminder that the law of the family and the law of immigration do not always speak with one voice, and that the gap between them is precisely where sound advice earns its keep.
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