On July 18, 2013, the High Court of Swaziland declared unconstitutional one element of the common law principle of marital power: a ban on married women instituting legal actions on their own behalf and without the assistance of their husbands. (Nombuyiselo Sihlongonyane v. Mholi Joseph Sihlongonyane (470/2013A) [2013] SZHC 144 (July 18, 2013) [hereinafter Sihlongonyane v. Sihlongonyane], Southern African Legal Information Institute (SAFLII) website.)
The principle of marital power gives a husband married under civil rites and in community of property three broad powers:
1) veto power on general issues having to do with the family’s lifestyle;
2) power over the person of the wife akin to guardianship, including in matters of legal representation; and
3) power to administer the joint estate with unfettered discretion (the wife has recourse to have transactions involving joint property nullified if they were fraudulent). (Court Confirms New Rights for Women, MEDIA INSTITUTE OF SOUTHERN AFRICA (Aug. 8, 2013).)
Until now, these powers could only be limited through an prenuptial contract or “some other act recognized or permissible in law,” such as the law that allows a woman to approach a court for leave to sue on her own behalf. (Sihlongonyane v. Sihlongonyane, supra, at 8 & 17.)
The case was not instituted as a constitutional challenge against the principle of marital power. The applicant, Nombuyiselo Amanda Sihlongonyane, a teacher by profession, who married under civil rites in community of property, sought, among other objectives, to have the respondent (her husband), Joseph Mholi Sihlongonyane, removed as the administrator of their joint estate on grounds of maladministration of jointly owned property. (Id. at 4.) Initially the case was brought before a single-judge bench of the High Court; however, when Mrs. Sihlongonyane’s standing was challenged, the case was transferred to a three-judge panel to investigate the constitutional aspects of the challenge, particularly in regard to section 20 (equality before the law clause) and section 28 (rights and freedoms of women clause). (Id. at 6-7; The Constitution of the Kingdom of Swaziland Act, 2005, University of Swaziland Institute of Distance Education website.)
The High Court found only one of the three marital powers unconstitutional. The Court analyzed the constitutional provisions, stating:
The Constitutional provisions quoted above [sections 20 & 28], appear to us to be clear and unequivocal in their meaning and import, and application. They decree that all persons or human beings should be treated equally before and under the law in all spheres of life and “in every other respect and shall enjoy equal protection of the law.” (Sihlongonyane v. Sihlongonyane, supra, at 17-18.)
The Court further noted that “marital power unlawfully and arbitrarily subordinates a wife to the power of her husband and is therefore unfair and serves no useful or rational purpose.” (Id. at 16-17.)
The Court nonetheless handed down a narrow decision that does not completely eliminate the entire principle of marital power; it limited its ruling to the specific question of whether a married woman has the capacity to sue and be sued in her own name, one of the three rights married women are denied under the principle of marital power. The Court held:
… 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 clearly inconsistent with the provisions of sections 20 and 28 of our Constitution. The Constitution being the Supreme law of the land, these tenets of the common law must perforce give way to it. (Id. at 23.)
In a press statement, the Media Institute of Southern Africa (MISA), an advocacy group with offices in 11 southern African countries, noted that the Court’s decision does little to help women. It stated: “[u]ndoubtedly, the root cause of the dispute in this case relates to the husband’s inability to exercise marital power to administer the joint estate in good faith.” (Court Confirms New Rights for Women,supra.) In MISA’s view, to effectively resolve the problem, the Court should have voided the marital power in its entirety and placed married women on the same footing as their husbands vis-à-vis the administration of marital property. (Id.) MISA further stated that this decision merely allows a married woman the right to bring an action on their own behalf; husbands still enjoy the exclusive right to make decisions regarding common property. (Id.)