Women’s month may be over for 2019, but there is one new judgment that cannot be left out of consideration. It comes from Eswatini where a full bench of the high court – Principal Judge Qinqisele Mabuza with Judges Titus Mlangeni and N J Hlophe – has handed down a hugely significant decision: it delivers women from the power a husband has had to ‘rule over his wife’.
This is a case with enormous implications for Eswatini women: three judges have spelled out the implications of the constitutional guarantee to equal treatment before the law. And they have definitively ruled that the common law doctrine of marital power discriminates against married women.
Among others, the now discredited marital regime offended the right of married women to dignity and to equality.
But it was a decision that might never have been made. Originally, the case involved a couple in litigation with each other over whether they were married in terms of civil rites or the customary law of Eswatini. Before that case was finalised, however, the wife withdrew her application.
In essence she had asked that the common law doctrine of marital power be declared unconstitutional. But though she withdrew from the case, what had been the second applicant, Women & Law Southern Africa-Swaziland (WLSA-Swaziland), was able to take over and continue the case so that the critical issues could be decided. In other words, it is thanks to that organization that many married women in Eswatini may now throw off the shackles of the previous legal system.
Judge Mlangeni, who wrote the decision with the unanimous agreement of the rest of the court, quoted this definition of ‘marital power’: ‘… the right of the husband to rule over and defend the person of his wife, and to administer her goods in such a way as to dispose of them at his own will, or at any rate to prevent his wife dealing with them except with his knowledge and consent.’
There have already been a couple of key decisions that indicate the way the courts in Eswatini have been thinking about the issue. But they have applied to particular cases, rather than establishing a principle for all married women.
The court agreed that it was high time to make matters clear, saying that ‘to a large extent the marital power of the husband is alive and well in this country; pervasive in its discriminatory shackles’.
As WLSA-Swaziland argued, the doctrine of marital power meant that a married woman could not ‘deal’ with their marital assets without the knowledge and consent of her husband, ‘yet her husband can do so without seeking and obtaining her approval.’
What this has meant is that ‘a wife cannot conclude contracts without her husband’s permission, she cannot represent herself in civil suits, and she cannot administer property. Essentially, the common law doctrine of marital power relegates married women to the legal status of a minor under the guardianship of their husbands.’
In their argument WLSA-Swaziland also said that marital power infringed on the constitutional right of equal treatment before the law. It gave men a ‘more important status’ than women in relation to the marital estate. It infringed the right of married women to dignity. It was discriminatory against women and, in respect of married women, it restricted ‘the consequences of attaining majority status.’
The court agreed fully with these arguments. While it was true that women had the option to exclude marital power via an ante-nuptial contract, it was not fair that women had to take additional steps to ensure their equality in marriage. For many years, most couples considering marriage in Eswatini would have thought that their choice was simply between civil rights or customary rites. They would rarely consider the legal consequences of this choice.
The court also said that much of the argument by WLSA-Swaziland was based on international law. But the issue in dispute could be ‘effectively and conclusively resolved’ on the basis of Eswatini’s ‘domestic law.’
In its order the court declared ‘common law marital power’ unconstitutional on the basis of being ‘discriminatory against married women’. Further, the court declared that couples married under the 1964 Marriage Act and in community of property had ‘equal capacity and authority’ to administer marital property. The judges also struck down the offensive sections of the Marriage Act.
Commenting on the outcome, the executive director of WLSA-Swaziland, Colani Hlatjwako said, “For many years, these discriminatory marital power laws have negatively impacted on women and on our ability to provide legal assistance to women. We hope the judgment will bolster the State’s law reform process to ensure marriage equality is reflected in our marriage laws.”
*Newsletter, Judicial Institute for Africa (Jifa), 6 September 2019