A full bench of the High Court will have to determine whether or not married women have equal rights with their husbands.
High Court Principal Judge Stanley Maphalala has referred a matter to the Chief Justice Michael Ramodibedi to constitute a full bench and decide if a married woman can challenge her husband in court for anything else other than divorce.
This comes after Nombuyiselo filed a court application against her husband Pastor Mholi Sihlongonyane, seeking an order directing him to evict some people he had allowed to live in their matrimonial home at Zakhele in Manzini. She alleged that this had caused discord in their marriage and he had, in fact, deserted her to live with a girlfriend. She also seeks an order directing the man of God to first seek her consent if he wants another person to reside in their marital home.
Nombuyiselo is represented by Simanga Mamba, while Luke Simelane has been instructed by Pastor Sihlongonyane of the Kingdom Ambassador Worship Tabernacle.
Judge Maphalala questioned whether or not Nombuyiselo had a legal standing to institute the proceedings against her husband, with whom they were unified under community of property, aside from divorce. The question had not been raised by any of the parties.
Lawyer Mamba submitted that Nombuyiselo has legal standing to challenge her husband before court and the Constitution backs her. He cited Section 20 of the Constitution, which entrenches that all persons are equal before and under the law and shall enjoy equal protection of the law.
Mamba further told court that the ‘old Common Law’ that women married in community of property and subject to marital power have no legal standing has since been eroded by the Constitution and a plethora of courts decisions. He said the country’s Constitution accords Nombuyiselo the right of protection by the state from unlawful deprivation of her property that she owns, either alone or in association with other people.
Mamba added that, Section 28 of the Constitution stipulates that women have a right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities.
Simelane, on behalf of Pastor Sihlongonyane on the other hand, argued that Nombuyiselo does not have a legal standing to institute a suit of such nature against her husband.
Simelane submitted that a husband assumes the office of administrator of the joint estate, by virtue of marital power and the wife finds herself subordinated to his guardianship, ‘save where Common Law or statutory dispensations have been grudgingly granted’.
“The husband’s power to administer the joint estate as he pleases: buying, selling, investing, donating or squandering its assets is fettered at Common Law only by the rule that transactions in trend of the wife will be set aside at her instance and by the remedies of interdiction, which are available in severe cases of maladministration.” Simelane is said to have quoted from the book titled ‘The Law of Persons and Family.’ Judge Maphalala said at ‘face value’ the arguments by the pastor were correct but the provisions of the Constitution (Sections 20 and 28) need to be investigated thoroughly.
He said there was need to investigate whether the Common Law position remains or whether the provisions of the Swaziland Constitution hold sway. “On these facts, therefore, I decline to proceed with the matter further and will refer this case to the Chief Justice to constitute a full bench of this court to decide the question,” Judge Maphalala said.
He viewed the case to be requiring urgent attention.