AG SIFISO KHUMALO REACTS: REGISTRAR’S CHILD SHARE STATEMENT UNCONSTITUTIONAL

MBABANE – Spouses married under Eswatini law and custom must just relax and enjoy as the nation’s chief legal advisor has good news for them.

In his interpretation of various court judgments and the Constitution of the Kingdom of Swaziland (Eswatini), Sifiso Khumalo, the Attorney General (AG), said the statement by Siphiwo Nyoni, the Deputy Registrar of the Supreme Court, was incorrect. Appearing before the Public Accounts Committee (PAC), Nyoni said spouses married under Eswatini law and custom were getting a child’s share from the estates of their deceased husbands. She said the spouses got the child’s share by virtue of their customary marriages.  

“There was an outcry about the directive of the former minister. It has been corrected and the chief justice issued a directive and said it should be according to the law,” Nyoni said as quoted by our sister newspaper, Times of Eswatini. The child’s share is provided for in the Intestate Succession Act of 1953. This statement infuriated some women across the country, as they felt that they were being reduced to the status of their children. Khumalo, also known as Indvuna Mashampu, has since come out to weigh in on the matter.

Customary

He said the Interstate Succession Act, which spelt out the child’s share ‘does not apply to customary marriages’. As a result, he said the statement by Nyoni was not in line with the Constitution of the Kingdom of Eswatini, in particular, Section 34 (1). Section 34 (1) reads: “A surviving spouse is entitled to a reasonable provision out of the estate of the other spouse whether the other spouse died having made a valid Will or not and whether the spouses were married by civil or customary rites.” The AG wondered: “Is the child’s share reasonable?”
He said the judgment of the Supreme Court on Review was misinterpreted by some people, as it did not take away the constitutional right of spouses married under Eswatini law and custom. He said Section 34 (2) stipulated that Parliament shall, as soon as practicable after the commencement of this Constitution, enact legislation regulating property rights of spouses, including common-law husband and wife.    

The AG said the fact that Parliament has not yet enacted the legislation did not mean that the Interstate Succession Act of 1953 should be in conflict with Section 34 (1) of the Constitution. He said Section 252 (2) of the Constitution provides that Eswatini customary law is part of the law in Eswatini. Reads the section: “Subject to the provisions of this Constitution, the principles of Swazi customary law (Eswatini Law and Custom) are hereby recognised and adopted and shall be applied and enforced as part of the law of Swaziland.

Misconceived

“The assertion that the surviving spouse is entitled to a child’s share in customary marriage is misconceived,” the AG said. Khumalo added: “The Intestate Succession Act does not apply to customary marriages, in particular Section 2(3) of the Act.” He said customary marriages ‘are regulated in terms of Eswatini Law and Custom and custom as per the Administration of Estates Act’.He said the judgment in the case, Attorney General versus Master of the High Court, delivered in June 2016, confirmed this position that “Section 2(3) of the Intestate Succession Act 1953, in particular, did not apply to customary marriages.

The AG said the Intestate Succession Act in general also did not apply to the customary marriages and this is the current legal position prevailing in the country. He made an example of a chief who is expected to assume the position of his late father. In such matters, he said emaSwati applied Eswatini Law and Custom. What is the position now? Khumalo said the Marriages and Matrimonial Bill was under process and would be re-tabled in Parliament. In the meantime, he said the Constitution provided that the share should be reasonable. He said the reasonability of the spouse’s share would be determined by those involved in the distribution of the estate.

Violate

“We cannot use any other law to violate this constitutional provision,” he advised. The AG is the principal legal advisor to government, ex-officio member of the Cabinet and also represents chiefs in their official capacity in legal proceedings. He also advises the King on any matter. Section 4 of the Interstate Succession Act, 1953 seems to be confirming what Khumalo advances as it reads thus: “This Act shall not apply to any African if the estate of such African is required to be administered and distributed according to the customs and usuages of the tribe or people to which the African belonged by virtue of Section 68 of the Administration of Estates Act.”

It must be said that Section 68 (1) of the Administration of Estates Act deals with estates of Africans. It is stipulated in Section 68 as follows: “If any African who during his lifetime has not contracted a lawful marriage, or who, being unmarried is not the offspring of parents lawfully married, dies intestate, his estate shall be administered and distributed according to the customs and usages of the tribe or people to which he belonged;” “… and if any controversies or questions shall arise among his relatives, or reputed relatives, regarding the distribution of the property left by him, such controversies or questions shall be determined by a Swazi Court having jurisdiction.”\

It is said in Subsection (2): “The master may not be called upon to interfere in the administration and distribution of the estate of any such African.” For the purpose of this section, Subsection 3 provides that ‘African’ shall mean any person belonging to any of the aboriginal races or tribes of Africa south of the Equator, or any person one of whose parents belongs to any such race or tribe.”

Analysis

Sipho Gumedze, a human rights and constitutional attorney, said he did not like the judgment delivered by the Supreme Court on Review as, from his analysis, appeared to be reducing the status of customary marriages.“To me, the judgment is bad in law,” Gumedze said. “Apartheid was law, but was it good? Certainly not! It wasn’t good at all,” Gumedze said. Colani Hlatjwako, the Coordinator of One Billion Rising Africa, urged the Executive and Legislature to speed up the enactment of the Marriages and Matrimonial Bill. She said the law should not be interpreted to discriminate against marriages. Hlatjwako said marriages were equal, whether civil or customary marriages. She said there were lots of problems during the distribution of estates under customary marriages, advising that matrimonies should be harmonised.

Efforts to reach out to Nyoni, the Deputy Registrar of the Supreme Court, failed as this newspaper was unable to get hold of her through her phone. She was to be asked to react to the AG’s statement and interpretation of the court judgments and Constitution, and whether she was withdrawing her statement or maintaining it. Meanwhile, the judgment of the Supreme Court had set aside the verdicts of the full bench of the High Court (Constitutional Court) and Supreme Court on Appeal. It was delivered in 2016.   The court cases emanated from an Estate Policy that former Minister of Justice and Constitutional Affairs, Sibusiso Shongwe, had formulated to regulate benefits for spouses married under customary law (kuteka).

Policy

Shongwe’s policy had equated customary marriage to civil rites marriage. The policy had declared Section 2 (3) of the Intestate Succession Act No.3 of 1953 as unconstitutional.
The children of Chief Sibengwane Ndzimandze had to challenge the policy in court. After the Cabinet under the administration of the late Sibusiso Barnabas Dlamini had withdrawn the ex-minister’s policy, the children of Chief Sibengwane withdrew the court case as well. But, ex-Chief Justice Michael Ramodibedi turned down the application to withdraw the case on the grounds that it was of national interest and importance. Therefore, the full bench of the High Court held that Section 2 (3) of the Intestate Succession Act No. 3 of 1953 was ‘irreconcilable and in stark violation of Section 34 (1) of the Constitution’.

As earlier indicated, Section 34 (1) provides that a surviving spouse is entitled to a reasonable provision out of the estate of the other spouse.” The full bench had issued the following judgment:
(a)     In view of Section 34(1) of the Constitution of the Kingdom of Swaziland Act of 2005, (Act 1 of 2005), Section 2 (3) of the Intestate Succession Act of 1953 (Act 3 of 1953) is hereby declared unconstitutional and struck down.
(b)     Until Parliament has enacted legislation to regulate property rights of spouses, including common law husband and wife, the Master of the High Court (the 11th respondent) is hereby ordered and directed to distribute and liquidate deceased’s estates in accordance with the provisions of Section 34(1) of the Constitution by equating customary law marriages to civil marriages in community of property.
The full bench further held that Section 2 (3) of the Intestate Succession Act violated and undermined the rights of intestate spouses married under customary law on the basis that it relegates a wife to a mere child in the distribution of a deceased estate.
The full bench, which constitutes the Constitutional Court, provided that the surviving spouse married under civil or customary marriage is entitled to a reasonable provision out of the deceased’s estate as provided in Section 34 (1) of the Constitution.
The case was then heard by the Supreme Court after government (Cabinet of that time) had instructed the Office of the AG to lodge an appeal.
The Office of the AG was headed by Majahenkhaba James Dlamini, the current judge of the Supreme Court.  

Judgement

The judgement of the Supreme Court on appeal under Civil Appeal Case No. 55/2014, delivered on December 3 2014, confirmed the verdict of the full bench under Civil Appeal Case No. 981/2010. In its ruling, the Supreme Court on review said the judgments of the Supreme Court on Appeal and full bench of the High Court were hereby reviewed and set aside in its entirety in accordance with Section 148 (2) of the Constitution of Swaziland (Eswatini). Section 148 (2) reads: “The Supreme Court may review any decision made or given by it on such grounds and subject to such conditions as may be prescribed by an Act of Parliament or rules of court.”

Those who heard the review case were as follows:

• Bheki Maphalala, the Chief Justice
• Judge Benjamin Odoki
• Judge Phesheya Dlamini
• Justice Zonke Magagula (acting judge then)
• Justice Maxine LaNgwenya (acting judge then)

They all agreed with the judgment. The court then directed the minister of Justice and Constitutional Affairs, in conjunction with Parliament to enact legislation that would regulate the property rights of spouses, including common law husband and wife as required by Section 34 (2) of the Constitution. This was to be done within a period of 12 months from the date of the court order. After eight years, this has not been done, but Khumalo, the AG said the enactment of the law was under process. The Marriages Bill was deferred to allow all stakeholders to have an input. It was stated in the judgment that the order of the court reviewing and setting aside the judgment of the Supreme Court on appeal was enforced without prejudice to any distribution of estates.

Incompetent

The judges who heard the case said the orders made by the full bench, and confirmed by the Supreme Court on appeal were legally incompetent in the absence of legislation enacted by Parliament in terms of Section 34 (2) of the Constitution. The judges warned that courts should not interfere with the constitutional mandate of Parliament. They said the supreme legislative authority of Eswatini vests in the King-in-Parliament. They ruled that it is the King and Parliament who have the authority to make laws for the peace, order and the good government of Eswatini.

Meanwhile, the government’s appeal against the full bench touched on the following points:
1.     The court a quo erred in law and in fact in holding/assuming that the Intestate Succession Act, 1953, applied to deceased estates regulated by Swazi customary law;
2.     The court a quo erred in law and in fact in holding/assuming that the Master of the High Court (11th respondent) has a role to play in deceased estates regulated by customary law.
3.     The court a quo erred in law in holding and declaring that Section 2 (3) of the Intestate Succession Act 1953 is inconsistent with the provisions of Section 34 of the Constitution.
4.     The court a quo erred in conferring the Master of the High Court (11th respondent) by implication with (legislative) authority to determine and define ‘reasonable provision’ and ‘common law’ spouse in terms of Section 34 of the Constitution.
5.     The court a quo erred in law and in fact in equating Swazi customary marriage with (civil) marriage out of community of property;
6.     The court a quo erred in law and in fact in holding that the Intestate Succession Act 1953 is discriminatory (in fact or in effect) in that it makes a customary law widow to be a minor (and not a widower);
7.     The court a quo erred in law and in fact in holding and declaring that Section 34 of the Constitution has abolished the distinction between civil and customary rites marriages;
8.     The court a quo erred in law and in fact in holding that the Intestate Succession Act 1953 only gives to the surviving spouse (a widow) only a child’s share limited to E1 200 of the deceased’s estate;
9.     The court a quo erred in law and in fact in holding that the provisions of Section 2 (3) of the Intestate Succession Act, 1953 are necessarily in conflict with ‘reasonable provision’ under Section 34 (1) of the Constitution.
10. The court a quo erred in holding by implication that the provisions of Swazi Customary Succession are repugnant to general principles of humanity.
11. The court a quo erred in directing/ordering the Master of the High Court (11th Respondent) to distribute and liquidate deceased estates in accordance with Section 34 (1) of the Constitution.
12. The court a quo erred in not suspending the invalidity of Section 2 (3) of the Intestate Succession Act 1953 and allowing Parliament to comply with Section 34 (2) of the Constitution within a specified period.

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