ESCR-Net’s Women and ESCR (WESCR) Working Group has highlighted that gender inequality with respect to the access, use and control of land and natural resources is a critical issue which lies at the heart of women’s poverty, exclusion and insecurity worldwide. Similarly, a July 2017 paper by the UN Working Group on the issue of discrimination against women in law and in practice emphasized 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.” However, current figures indicate that while over 400 million women farm and produce the majority of the world’s food supply, they own less than 20 per cent of the world’s land.
In this issue of ESCR-Justice, we consider two cases from Swaziland, celebrated by women in the country and across the region, as significant legal developments towards protecting women’s rights related to land and property rights and advancing gender equality. Recalling a 2016 report by the Women and ESCR Working Group which named discriminatory legislative and policy frameworks as one of the most pervasive obstacles to women’s enjoyment of such rights, these cases are illustrative of litigation efforts to address such discriminatory frameworks in practice.
Firstly, the Aphane case concerns the ability of women to register property jointly in their own and their husband’s names. In November 2008, Aphane and her husband, Michael Mandla Zulu, 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 Deeds Registry Act, the property must be registered exclusively in Zulu’s name. In 2010, the Supreme Court held that this legislative provision was in violation of Sections 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. In July 2011, Parliament passed an updated version of the Act allowing women to register property in their own names. Further, no spouse can deal with immovable property unless the other spouse has consented in writing. This historic decision is particularly significant as it was the first case where Swaziland’s 2005 Constitution was used as the basis to protect women’s rights. This 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.
Going a step further – by addressing the outdated common law doctrine that underpinned the offending Deeds Registry Act section referenced above – is the Sihlongonyane decision. In January 2013, on the basis of her husband’s mismanagement of their estate, Sihlongonyane applied to the High Court to have her husband removed as the administrator of their joint property. Her husband’s opposing affidavit questioned her standing to institute legal proceedings without his assistance, pursuant to the common law doctrine of marital power, which empowers a husband to solely administer the joint property of the 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. The High Court held that the marital power doctrine unfairly discriminates on the basis of sex and gender, and “unlawfully and arbitrarily subordinates the wife to the power of her husband and is therefore unfair and serves no useful or rational purpose.” Relying on the equality rights enshrined in the Constitution and the country’s international human rights obligations, the High Court invalidated the common law doctrine of marital power with regard to the ability of women to sue and be sued without the assistance of their husbands. Unfortunately, the High Court did not abolish the common law marital power doctrine in its entirety, however litigation challenging the constitutionality of the common law marital power doctrine is currently underway. Meanwhile, this landmark case does at least restrict some aspects of the marital power doctrine, which already has important implications for women’s right to property, including land and housing.