C. Desousa, Ownership and Administration of Legal Property in Swaziland, Oct. 16, 2013. Available at: http://bit.ly/2wO2j2u

URL: 
http://bit.ly/2wO2j2u

Article 19(1) of the Constitution of Swaziland, 2005 provides that 'a person has a right to own property either alone or in association with others.'  The Constitution guarantees equality before the law.'1  The Consitution also regulates the ownership of land.  All land vests in the King (iNgwenyama) in trust for the Swazi nation (known as Swazi Nation Land) save privately held title deed land. However, a citizen of Swaziland without regard to gender, shall have equal access to land for normal domestic purposes.2.  The Constitution guarantees that women have the right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities.3The Constitution further guarantees that a surviving spouse in entitled to a reasonable provision out of the estate of the other spouse whether the other spouse died having made a valid will or not and whether they were married by civil or customary rites.4  The Constitution places the obligation on Parliament to enact legislation regulating the property rights of spouses including common-law husband and wife.  Swaziland has a dual land tenure administration.  Land is held by costomary tenure and related by customary law and administered by the chiefs' courts.  On the other hand, land is held by freehold tenure and regulated by Roman-Dutch law which is administrered by the Deeds Registry.5

Allocation of Swazi Nation Land (Umhlaba wakaNgwane or Umhlaba weMaswati)

The King, representing the whole nation, is repsonsible for the allotment of land.  This is subsequently designated to the chiefs to assign it to their subjects.6All Swazi Under Swazi custom, a chief allocates communal Swazi National Land only to married men and this does not result in ownership of the land.  Land access rights on are held by the community as a whole.7Woman cannot be allocated land on their own and can only get land through their husband, male relative, or male children.  Women are expectedto be provided for through the household to which they belong.8  This land does not form part of the estate of a deceased person., but the death of a family head does not mean the end of a family's rights to the land.9  A homestead may be banished from the land following accusations of serious witchcraft, murder, repeated adultery or serious theft which has been proven against a person.10 Due to the lack of title over the land, women can be evicted by their husbands, family members or chiefs for allegations such as witchcraft or adultery and be sent to her natal home.11Customary marital powers give the husband and his family final decision making authority to determine if they wife can use the land, how the wife can use the land, and what she can do with anything grown on the land; the husband on the other hand is not subject to any of the same restrictions.12Acquisition and Registration of private land If a woman is married in community of property or if it is a customary marriage governed by Swazi law and custom, then the property rights of a married woman is dependent on the concept of marital power.  A women holds the the legal status of a minor under both civil and customary law.  Under such a marriage, all property is jointly owned  and now under S16(1) of the Deeds Registry Act, both husband and wife can have their names registered against the property.  (See law reform) Swazi customary law and the rites of civil marriage establish that the husband is the head of the family and takes all major decisions affecting the household.  The husband therefore has absolute control over the property and allows him to enter into a transaction on behalf of the joint estate without the knowledge or consent of his wife.13This has further implications in that a woman must be represented in legal proceedings by her husband, she has no independent contractual capacity, and verly little control over the joint property of the marriage.14

However, Black Swazi women who marry civilly under the Marriage Act are excluded from the protection of the Act and the marital power of the husband and the proprietary rights of the spouses shall be governed by Swazi law and custom.  Swazi law and custom provides the husband with even more expansive marital power than under civil law, a woman is reduced to a position analogous to that of "one fo the children" of the household and has implications on personal autonomy such as what she may wear or engage in.15 However, this provision is not normally enforced by the court and judges allow Swazis who believed they were married under civil law to be governed under the civil law.16If a women is married out of community of property then the property is separately owned according to an antenuptial agreement and controlled solely by the owner of that property.17":297.  

Purchase of private land 

There are no legal or customary limitations on the purchase and registration of private land or property in the name of single, divorced or widowed adult women.18    

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  • 1.Section 20(1) of the Constitution, 2005.
  • 2.Section 211 of the Constitution, 2005.
  • 3.Section 28(1) of the Constitution, 2005.
  • 4.Section 34(1) of the Constitution, 2005.
  • 5.FP van R Whelpton, 2005. "Land Tenure Dealing with Swazi Nation Land in the Kingdom of Swaziland." In the Stellenbosch Law Review:147.
  • 6.FP van R Whelpton, 2005. "Land Tenure Dealing with Swazi Nation Land in the Kingdom of Swaziland." In the Stellenbosch Law Review:147.
  • 7.FP van R Whelpton, 2005. "Land Tenure Dealing with Swazi Nation Land in the Kingdom of Swaziland." In the Stellenbosch Law Review:147.
  • 8.FP van R Whelpton, 2005. "Land Tenure Dealing with Swazi Nation Land in the Kingdom of Swaziland." In the Stellenbosch Law Review:150.
  • 9.FP van R Whelpton, 2005. "Land Tenure Dealing with Swazi Nation Land in the Kingdom of Swaziland." In the Stellenbosch Law Review:152.
  • 10.FP van R Whelpton, 2005. "Land Tenure Dealing with Swazi Nation Land in the Kingdom of Swaziland." In the Stellenbosch Law Review:156.
  • 11.The International Women's Human Rights Clinic Georgetown University Law Centre, 2007. "Women's Equal Property and Land Rights hold key to reversing toll of poverty and HIV/AIDS in Swaziland: A human rights report and proposed legislation.":312.
  • 12.The International Women's Human Rights Clinic Georgetown University Law Centre, 2007. "Women's Equal Property and Land Rights hold key to reversing toll of poverty and HIV/AIDS in Swaziland: A human rights report and proposed legislation.":308.
  • 13.Maxine Langwenya. 2006. "Historic Step towards equality for Swazi women: An Analysis of Mary-Joyce Doo Aphane v Registrar of Deeds", Open Society Initiative for Southern Africa:3. 
  • 14.The International Women's Human Rights Clinic Georgetown University Law Centre, 2007. "Women's Equal Property and Land Rights hold key to reversing toll of poverty and HIV/AIDS in Swaziland: A human rights report and proposed legislation.":296.
  • 15.The International Women's Human Rights Clinic Georgetown University Law Centre, 2007. "Women's Equal Property and Land Rights hold key to reversing toll of poverty and HIV/AIDS in Swaziland: A human rights report and proposed legislation.":298.
  • 16.The International Women's Human Rights Clinic Georgetown University Law Centre, 2007. "Women's Equal Property and Land Rights hold key to reversing toll of poverty and HIV/AIDS in Swaziland: A human rights report and proposed legislation.":299.
  • 17.The International Women's Human Rights Clinic Georgetown University Law Centre, 2007. "Women's Equal Property and Land Rights hold key to reversing toll of poverty and HIV/AIDS in Swaziland: A human rights report and proposed legislation.":298.
  • 18.The International Women's Human Rights Clinic Georgetown University Law Centre, 2007. "Women's Equal Property and Land Rights hold key to reversing toll of poverty and HIV/AIDS in Swaziland: A human rights report and proposed legislation.":296.