A court decision that overrides outdated, discriminatory law has caused an uproar in Swaziland, writes Carmel Rickard.
You’d think there would be general rejoicing following a court decision to end a discriminatory system in terms of which women inherited only a child’s portion from their husband’s estate when he died without a will: but this is Swaziland we’re talking about.
It’s not surprising that after last week’s judgment the government announced the outcome had created considerable concern, had “serious implications for government” and the cabinet would meet to discuss it and it would be appealed to a higher court.
For Swazi widows, powerless and discriminated against under law and custom, the country’s 2005 constitution seemed to offer a chance that things would change.
It said that a surviving spouse was entitled to “a reasonable provision” from the estate of the other spouse, whether or not the other spouse left a valid will and whether the spouses were married by civil or customary rites. The constitution also said parliament should enact legislation to make sure this was a reality. But 10 years later nothing has been done.
Research on the situation of Swazi widows and girl orphans by experts at the International Women’s Human Rights Clinic, Georgetown University, in the US, resulted in a 620-page book published during 2007, calling for thorough change.
They said widows were “effectively held hostage” in a system that offered them no protection. The experts analysed the problems of the legal system and offered draft legislation to ensure equality.
Nothing changed.
When Swazi chief Sibengwane Ndzimandze died in a car accident in July last year, his three surviving wives began a desperate battle against some of his 24 children over what the women would inherit.
Originally they were told they would each inherit R30 000, a figure with which they said they was “comfortable”. But the widows were later recalled and told there had been a mistake: they would inherit only “a child’s portion”.
Realising just how little they would receive, they approached Minister of Justice and Constitutional Affairs Sibusiso Shongwe for help.
He travelled to the Lebombo offices of the Master of the High Court, which was handling the estate, and announced new policies that would start immediately.
The Master would no longer use two different systems to distribute estates, he said. Instead all widows would inherit half their husband’s estate.
This caused an outcry in the government and Shongwe was ordered to withdraw his “policy”. When he refused to do so, the cabinet announced it had scrapped it.
Before the policy was ditched, 17 of Ndzimandze’s children brought a high court application asking that the justice minister’s “policy” be declared invalid. Their application was opposed by the three widows and many of his other children.
Once the policy had been scrapped by the government, however, the 17 children withdrew their application and their lawyers said the case was over.
But Chief Justice Michael Ramodibedi had other plans. He said they could not simply withdraw. It was a matter of great importance and it would have to go on.
Eventually the matter was argued before a full bench of the high court, in the absence of legal representatives of the 17 children.
Judgment, delivered last week, was full of resounding phrases about the failure of parliament which had “slumbered” instead of making the laws required by the constitution to protect widows and orphans. The child’s portion – roughly R1 200 – that widows inherited would scarcely buy “two wheelbarrows” and if the high court were to order the old system to continue it would be “foolhardy, heartless and a callous disregard of the constitution”. They criticised the 17 children who didn’t continue with the case thus “defying a court order”, and found the existing 1953 law on how estates should be divided inconsistent with the constitution.
To fill the vacuum created by their ruling and until Parliament made a law that was compatible with the constitution, the court ordered that all estates must be wound up by “equating customary-law marriages with civil law marriages in community of property”.
Since then Swazi society has been in an uproar, the cabinet has met to consider what to do and the attorney-general says he will appeal.
While government members are obviously angry with the justice minister, he has the full backing of Ndzimandze’s widows, happy that they’re getting more than a couple of wheelbarrows out of their husband’s estate.
* Carmel Rickard is a legal affairs specialist. Email [email protected] or visit www.tradingplaces2night.co.za
** The views expressed here are not necessarily those of Independent Newspapers.