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.
Nombuyiselo Sihlongonyane and Mholi Joseph were married under civil rites and in community of property.[1] In January 2013, on the basis of her husband’s infidelity and mismanagement of their estate, Sihlongonyane applied to the High Court of Swaziland (High Court) to have her husband removed as the administrator of their joint property. Joseph filed an opposing affidavit denying the allegations in Sihlongonyane’s complaint and questioning her standing to institute legal proceedings without his assistance pursuant to the common law doctrine of marital power, which empowers a husband to solely administer the joint property of the spouses, and places his wife under his guardianship, without the ability to exercise legal capacity (including the ability to enter contracts or engage in legal proceedings), with few exceptions.
The judge observed that a possible conflict existed between Sections 20 and 28 of the 2005 Constitution, which confer equal rights to women under the law, and the common law marital power doctrine. As such, he declined to decide the constitutional question and referred the case to the Chief Justice of the High Court, who convened the full bench of the High Court to decide the issue.
The full bench of the High Court determined that Sihlongonyane had legal standing to bring her case, finding the common law marital power doctrine inconsistent with the Constitution. Section 20 of the Constitution guarantees that all people are: (1) equal under the law, (2) have the protection of the law, and (3) shall not be discriminated against on the basis of gender. Similarly, Section 28 provides that women have the right to equal treatment with men. Taken together, the High Court held that the common law marital power doctrine unfairly discriminates on the basis of sex and gender, and “unlawfully and arbitrarily subordinates the wife to the power of her husband and is therefore unfair and serves no useful or rational purpose.” (para. 24)
The High Court also cited the United Nations Human Rights Committee General Comment No. 28 on the equality of rights between men and women, which confirms that States are required to treat men and women equally in regard to marriage in accordance with the International Covenant on Civil and Political Rights. The High Court held that “the marital power of the common law insofar as it prevents married women from suing and being sued without the assistance of their husbands is inconsistent with the…Constitution”, as enacted in full appreciation of the country’s international obligations.
Ultimately, the High Court invalidated the common law doctrine of marital power with regard to the ability of women to sue and be sued without the assistance of their husbands. In addition, it backdated the order of invalidity to Sihlongonyane’s filing date, thereby granting her standing to sue her husband. Recognizing the importance of its decision on all similarly situated married women, the High Court held that the order of invalidity and effective date applied to all prospective litigants.
[1] In this form of marriage, all the property of both spouses is combined in a joint estate regardless of whether it was acquired before or after the marriage and regardless of how much each one contributed. See, for example, Maxine Langwenya, Open Society Initiative for Southern Africa (OSISA), Historic Step towards Equality for Swazi Women: An Analysis of Aphane v. the Registrar of Deeds, http://www.osisa.org/sites/default/files/open_debate_6_-_doo_aphane_v_registrar.pdf, p. 3).
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
