For over two decades, the promise of the Eswatini Constitution has hung in the air, a beacon of hope for countless families grappling with loss. Specifically, Section 34(1) guarantees a ‘reasonable provision’ for a surviving spouse from their deceased partner’s estate, regardless of the type of marriage. However, the lack of a clear definition for ‘reasonable provision’ has turned this constitutional right into a legal and emotional quagmire. The recent motion in Parliament, spearheaded by Lobamba Lomdzala Member of Parliament (MP) Marwick Khumalo and seconded by Shiselweni Region MP Lindiwe Mamba, to finally draft and pass legislation that defines this term is not just a procedural step; it’s a seismic shift, set to bring clarity, justice and peace to families across the nation.
This legislative move comes as a huge relief, especially in the wake of numerous high-profile disputes that have clogged our courts and exposed the painful consequences of this legal ambiguity. The Titselo Ndzimandze case, in particular, became a symbol of this confusion, with the issue of reasonable provision at its very core. The current state of affairs leaves the Master’s Office in a difficult position, forcing them to make discretionary decisions, that are often seen as arbitrary and unfair. This ambiguity has fuelled litigation, turning what should be a time of mourning into a period of fierce, often ruinous, family conflict.
The Eswatini Constitution, enacted 20 years ago, was explicit in its directive. Section 34(1) is a clear statement of intent and Section 34(2) mandates Parliament to act “as soon as practicable.” Yet, for two decades, this critical legislation has languished. This delay has not been without its costs. As Khumalo pointed out: “People have been disfranchised because Parliament is not clear when it comes to this legislation.”
The absence of a statutory yardstick for reasonable provision has created a vacuum; leaving the most vulnerable – often widows – with what is colloquially known as a, ‘child’s share.’
This is a stark injustice when juxtaposed with the constitutional guarantee that sees no difference between civil and customary marriages. The fact that a surviving spouse, after a lifetime of partnership and shared duties, could be left with so little is a painful reality that many MPs highlighted in the parliamentary debate. Manzini Region MP Thandeka Mavuso powerfully articulated this, stating: “Couples married in civil ceremonies and those married by customary rites carry the same marital duties, it is, therefore, unfair that those in Swati marriages are still, in practice, confined to a child’s share.” The burden of this ambiguity falls disproportionately on women, who are often the first to bear the brunt of an unfair legal system when their husbands pass away.
The path to this moment has been long and fraught with political and social challenges. There have been previous attempts to address this issue, including a controversial estate policy issued by former Minister for Justice and Constitutional Affairs Sibusiso Shongwe, which was later withdrawn. Successive ministers, including Minister Pholile Shakantu, have also dealt with this complex matter, demonstrating the long-standing nature of the problem and the difficulty in finding a lasting solution.
As Mbabane East MP Welcome Dlamini recalled, a previous minister even lost his position over the controversy, highlighting just how politically-charged this issue has been.
However, the current motion seems to have a different momentum. With widespread support from MPs across different regions and political affiliations, there is a clear consensus that this issue can no longer be deferred. The motion directs the current Minister for Justice and Constitutional Affairs, Prince Simelane, to prepare and table the Bill within 30 days. This tight timeline, as Khumalo rightly argued, is designed to “show the minister is working on the matter” and prevent further delays. The urgency is palpable, with MPs like Maseyisini Nokuthula Dlamini noting that the nation has been waiting ‘with bated breath’ for this legislation.
What will ‘reasonable provision’ look like?
The proposed Bill aims to do what the Constitution intended: To provide a consistent, clear standard for what constitutes a fair share for a surviving spouse. The goal, as Khumalo stated, is to define the standard and ensure it is applied consistently. The debate highlighted that this is not just about widows, but also about widowers, ensuring fairness for all. The legislation is expected to address key questions, such as how it will align with the existing Marriage Act and other relevant statutes.
The hope is that the new law will bring an end to the ‘thorn in the flesh’ of estate disputes, as described by Manzini Region MP Thandeka Mavuso. It is anticipated that the legislation will empower surviving spouses to claim a fair share of the estate, potentially a 50 per cent share plus a child’s share, as suggested by some MPs. This would be a notable step towards economic justice and security for countless families. It will also bring much-needed relief to the Master’s Office, which has been overwhelmed with the complexities and emotions of these cases. Gege MP Magesi Dlamini’s observation that some estates have ‘languished for years’ speaks volumes about the current state of affairs and the need for a decisive legislative solution.
A call for consistency and justice
The move to finally give effect to Section 34 is not just a legal exercise; it is a moral imperative. It is about honouring the contributions of spouses to a marriage and ensuring that their surviving partners and children are not left vulnerable. As MPs highlighted, the findings from a previous national sensitisation exercise conducted across tinkhundla can be used to fast-track this process, as the groundwork has already been laid.
The debate also touched on the critical role of other bodies, such as the Council of Chiefs, given the Bill’s intersection with customary law. However, Khumalo’s firm stance that the Constitution makes no distinction on marriage type underlines the principle of legal equality that this legislation must uphold. The responsibility, he stressed, lies with Parliament to secure fairness for all surviving spouses, regardless of ceremony or rite.
This is a moment of truth for the 12th Parliament. By taking on this challenge, they have the opportunity to resolve one of the most persistent and painful legal ambiguities in Eswatini. The successful passage of this Bill will not only fulfil a long-overdue constitutional promise, but will also provide a clear, just and humane framework for navigating the difficult process of estate administration, ensuring that the legacy of a loved one is one of peace and provision, not of conflict and dispossession.
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