WOMEN FILE APPLICATION, CHALLENGE INHERITANCE LEGISLATION

MBABANE - The customary practice and legislation that prohibits the girl child or a woman from taking over her father’s estate is now being challenged in court.

This piece of legislation also disallows a woman from taking over from her father and assuming the role of being the head of the household after his death. The customary practice is known as male primogeniture. Primogeniture is a rule of inheritance in common law through which the oldest male child has the right to succeed to the estate of an ancestor to the exclusion of younger siblings, both male and female, as well as other relatives.About six women of Elwandle, with the support of Women and Law in Southern Africa- Swaziland (WLSA-SD) have filed an application at the High Court where they are seeking an order declaring the customary practice and pieces of legislation to be unconstitutional.

This comes after they were allegedly informed by the Elwandle Royal Kraal that they could not inherit their parents land because they were women. The six applicants in the matter are Dlamini siblings Vamile, Pretty, Nomenzi, Nokwanda, Nomasonto and Senteni, while Colani Hlatjwako, the Executive Director of WLSA-SD is the seventh and the organisation is the eighth applicant. The applicants want the court to declare that the customary practice of male primogeniture offends against the natural justice and general principles of humanity as enshrined in Section 252 of the Constitution of Eswatini and therefore void.

Part of Section 252(2) reads as follows:  “Subject to the provisions of the Constitution, the principles of Swazi customary law (Swazi Law and Custom) are hereby recognised and adopted and shall be applied and enforced as part of the law of Eswatini.”  The provisions of subsection (2) do not apply in respect of any custom that is, and to the extent that is, inconsistent with a provision of the Constitution or stature, or repugnant to natural justice or morality or general principles of humanity.

Praying

The applicants are also praying for an order declaring Section 4 of the Interstate Succession Act of 1953, Section 68 of the Administration Act No.28 of 1902 to be inconsistent with the Constitution and consequently invalid. According to the applicants, the aforementioned laws and customary practice were invalid to an extent that it debases, demeans, degrades, humiliates and excludes women from inheriting property. 

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