The Attorney-General v. Mary-Joyce Doo Aphane, (2010) SZSC 32
This case concerns the ability of women married in community of property to register property jointly in their own and their husband’s names. In deciding this case, the Supreme Court of Swaziland upheld fundamental rights to equality enshrined in the Constitution.
Mary-Joyce Doo Aphane, a woman’s rights activist, commenced legal proceedings in the High Court of Swaziland (High Court) against the Registrar of Deeds, the Minister of Justice and Constitutional Affairs, and the Attorney General, arguing that Section 16(3) of the Deeds Registry Act, 1968 (Act) violated her constitutional right to equality because it forbids women married in community of property[1] to register immovable property, bonds and other real rights in their own names or jointly with their husbands. Aphane argued that Section 16(3) was unconstitutional under Section 20 and 28 of the Constitution, which respectively guarantee women the right to equality under the law and the right to equal treatment with men.
Aphane and her husband, Michael Mandla Zulu, were married in community of property. Thereafter, they purchased a piece of land with a deed of sale that reflected both their names. They attempted to register this property under both their names, but were informed that pursuant to Section 16(3) of the Act, the property must be registered exclusively in Zulu’s name. Section 16(3) was based on the common law doctrine of marital power, which empowers a husband to solely administer the joint property of 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.
All parties agreed that Section 16(3) of the Act was unconstitutional, and the High Court agreed. Rather than strike down the invalid section, the High Court used a process of ‘severing’ and ‘reading in’ (or, in other words, altering the wording of the law) such that Section 16(3) would be amended as follows:
[I]mmovable property, bonds or other real rights shall not be transferred or ceded to, or registered in the name of, a woman married in community of property, save even where such property, bonds or real rights are by law or by a condition of a bequest or donation excluded from the community.
The Attorney General appealed to the Supreme Court of Swaziland (Supreme Court), arguing that the process of curing Section 16(3) of the Act of its unconstitutionality is the role of the legislature, not the Court. He further argued that the High Court should have confined its judgment to declaring Section 16(3) as inconsistent with Section 20 and 28 of the Constitution.
While the Supreme Court upheld the appeal and set aside the High Court order (relating to changing the language of the law), it also clearly affirmed the High Court’s finding regarding the unconstitutionality and consequent invalidity of Section 16(3). The Supreme Court suspended the declaration of invalidity for 12 months from the date of its order to allow Parliament to pass legislation bringing the Act in conformity with the Constitution. Pending enactment of legislation by Parliament, the Supreme Court authorized the Registrar of Deeds to register “immovable property, bonds and other real rights in the joint names of husbands and wives married to each other in community of property.”
[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. (Open Society Intitiative for Southern Africa, 2012, p. 3)
In July 2011, Parliament passed an updated version of the Act allowing women to register property in their own names, including women married in community of property. Further, no spouse can deal with immovable property or legal rights connected to property or other items unless the other spouse has consented in writing. In October 2011, Zwelethu Mnisi, Ambassador of Swaziland to the United Nations, reiterated the same in his statement before the Third Committee of the 66th Session of the UN General Assembly pertaining to the Advancement of Women. To date, the government is in compliance with the legislation.
This historic decision was widely celebrated by women in Swaziland and across the region as a significant development towards protecting women’s property rights and advancing gender equality, and the first time Swaziland’s 2005 Constitution was used as the basis to protect women’s rights. Aphane’s victory is a testament to the Court’s commitment to equality principles outlined both in the Constitution and international human rights instruments to which Swaziland is a party. It is also important to note that the State and Government officials were in agreement with Aphane that Section 16(3) was inconsistent with the equality principles outlined in Sections 20 and 28 of the Constitution. However, the decision did not actually address the common law doctrine of marital power, which underpinned the offending section of the Act.
The ruling is particularly relevant today, when women around the world still own less than 20 per cent of the world’s land. In Africa, while 31 per cent of men own land individually, only 12 per cent of women do so. Building on international recognition of the critical importance of women’s rights related to land and property rights, a July 2017 paper by the UN Working Group on the issue of discrimination against women in law and in practice emphasizes that “[s]ecure land rights for women set off powerful, continued ripple effects that go a long way toward realizing gender equality and a range of critical SDGs and human rights.”
*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.
