July 18th was another historic day for women in Swaziland. In a landmark judgement, the High Court declared aspects of marital power unconstitutional so that women married under civil rites and in community of property can finally sue in their own names.
But while the ruling is a major step forward for women’s rights and has been received with delight by many women in Swaziland, the practical implications are depressing – since discrimination against women in administering matrimonial property continues to persist.
The case (Nombuyiselo Sihlongonyane v Mholi Sihlongonyane) which brought the matter to the fore involved a couple who were married under civil rites and in community of property but where the husband exercised sole authority over their matrimonial possessions. As a result of her husband’s alleged mismanagement of the estate, Nombuyiselo made an application to the court to have her husband removed as the administrator of their joint property. However, her husband questionned her capacity to institute legal proceedings without his assistance – a challenge that raised a clear constitutional issue.
Consequently, the High Court had to study sections 20 and 28 of the Constitution – on equality and non-discrimination against women – and determine whether the common law concept of marital power could still exist alongside the rights enshrined in the 2005 Constitution.
Under common law, the property of spouses falls into a common pool, which – although jointly owned by the spouses – is entirely controlled by the husband unless the spouses execute an ante-nuptial contract before their marriage. This places the wife, in relation to the property of the marriage, in almost the same position as a minor child, except that guardianship of a minor serves the interests of the minor, whereas marital power serves the interests of the husband since it establishes:
a) The husband’s power as head of the family by virtue of which he has the decisive say in all matters concerning their common life and determines where and in what style they are to live;
b) The husband’s power over his wife, including her representation in legal proceedings; and,
c) The husband’s power over the property of his wife, which enables him, in his absolute discretion, to deal with the joint estate as its sole administrator.
The overall effect of the husband’s exercise of marital power is to subject the wife to the husband’s guardianship, effectively making her subservient to her husband.
The High Court relied on the ground-breaking 2010 case of The Attorney General v Mary Joyce Doo Aphane, which held that marital power unlawfully and arbitrarily subordinates the wife to the power of her husband and was an unfair discrimination based on sex or gender inasmuch as it adversely affects women who have contracted a civil rites marriage in community of property with no antenuptial contract.
The court further observed that, while it is accepted in common law that a married woman who is subject to marital power may approach the court for leave to sue without the aid of her husband, such a notion is discriminatory since it only applies to women and not to men. “A married man does not, under any circumstances, have to apply for such leave and therefore this common law requirement constitutes unfair discrimination,” the court noted.
Notwithstanding this observation, the court did not – unfortunately – entirely abolish the common law position of marital power. It confined itself to the issue of women’s capacity to institute and defend legal proceedings without the assistance of their husbands. If the court had declared the entire concept of marital power unconstitutional, it would have dealt a much greater blow to gender inequality by placing wives on an equal footing with their husbands and granting them joint administration of their matrimonial property. But the court’s limited decision has only permitted women in the same position as Nombuyiselo to institute and defend legal actions.
It is certainly a step forward for women’s rights, but not the giant leap that it could – and should – have been since husbands retain their common law status of being sole administrators of their matrimonial properties.
So what now? In order for Swazi women to realise their constitutional rights, there needs to be a complete review of the marriage laws in the country.
A positive way to start would be to amend all existing marriage laws by passing legislation that will facilitate genuine equality between spouses. Similar laws have been passed by several countries in the region. For instance, Botswana and Namibia abolished marital power by enacting the 2004 Abolition of Marital Power Act and the 1996 Married Persons Equality Act of respectively, thereby giving equal power to spouses to administer their joint property.
In promoting equality and non-discrimination as required by the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and other regional and international obligations, Swaziland must also pass a law that will end the power of husbands to choose the domicile for their wives, just like South Africa did with the 1992 Domicile Act.
And finally, there is a crucial need for Swazi civil society to collaborate with lawyers in providing refresher courses and discussion forums that will enable them to develop appropriate litigation strategies to ensure the meaningful realisation of the Bill of Rights.