This landmark case is particularly significant as it applied Constitutional and international legal equality and non-discrimination obligations to restrict the longstanding common law marital power doctrine in Swaziland that discriminates against women, and confirmed that married women have legal standing to commence and participate in legal proceedings without the assistance or approval of their husbands.
Once the constitutional question was decided by a full bench of the High Court, the case was remanded to the initial High Court judge. In a decision dated September 19, 2013, the judge held: (1) Sihlongonyane made her case on the merits and (2) that she was under no legal obligation or duty of custodianship to care for Joseph’s invitees in her matrimonial home. (Sihlongonyane vs Sihlongonyane & Another (470/2013) [SZHC207] (19th September 2013); found at: http://www.swazilii.org/sz/judgment/high-court/2013/207
On October 10, 2013, Sihlongonyane instituted proceedings seeking enforcement of the order to return her marital assets, specifically a vehicle. Joseph argued that the vehicle was a gift and therefore exempt from joint property. On October 25, 2013, the High Court stated that it is well settled where parties are married under civil rites and in community of property, items donated to any party to the marriage form part of a joint estate. As such, the High Court found that the vehicle is part of the joint estate and must be returned to the Applicant. (Sihlongonyane v Sihlongonyane & Another (470/13) [2013] SZHC262 (25 October 2013): found at: http://www.swazilii.org/sz/judgment/high-court/2013/262/
This landmark case is particularly significant as it applied Constitutional and international legal equality and non-discrimination obligations to restrict the longstanding common law marital power doctrine that discriminates against women, and confirmed that married women have legal standing to commence and participate in legal proceedings without the assistance or approval of their husbands.
Unfortunately, the High Court failed to abolish the common law marital power doctrine in its entirety and Swaziland remains the only Southern African country to not have repealed this doctrine. However, litigation challenging the constitutionality of the common law marital power doctrine in its entirety is currently underway in Swaziland. While this case does not eliminate the marital power doctrine, it does restrict it, and this has important implications for women’s right to property including land and housing, and also maintains the momentum towards addressing such ‘head-of-household’ provisions and their continued influence on customary law and practice, and on gender stereotyping, across Africa and more broadly. This is particularly relevant at present, given the increasing calls from human rights mechanisms and UN bodies to strengthen women’s rights to property, land and other resources through effectively addressing discriminatory laws and practices.
* This picture is not directly related to the two cases but pertains to the work of the Swaziland Rural Women’s Assembly, an organization working on women’s rights and development in Swaziland.
Intervening party: Attorney General