MBABANE – The High Court has declared the long-standing practice of treating marriages under Eswatini Law and Custom as being out of community of property unconstitutional and void.
In a landmark judgment delivered by a full bench, comprising Justices Ticheme Dlamini, Nkosinathi Maseko and John Magagula, the court ruled that the practice is inconsistent with Section 34 of the Constitution and cannot continue to apply.
Section 34 of the Constitution protects the property rights of spouses.
It provides that a surviving spouse is entitled to a reasonable share of the deceased spouse’s estate, regardless of whether the deceased left a Will or whether the marriage was conducted under civil or customary law.
The section also requires Parliament to pass legislation regulating the property rights of spouses, including those married under Eswatini Law and Custom. The High Court found that this constitutional protection is inconsistent with the long-standing practice of treating customary marriages as being out of community of property.
The judges declared: “The practice of regarding a marriage in terms of Eswatini Law and Custom to be out of community of property is inconsistent with Section 34 of the Constitution and, to that extent of inconsistency, is declared void.”
The ruling means spouses married under Eswatini Law and Custom will no longer automatically be regarded as having separate estates solely because their marriage was concluded under customary law.
The matter arose after the applicant, businessman Moses Msongelwa Dlamini, approached the High Court seeking orders that would have recognised his customary marriage as being out of community of property and declared him the sole owner of a homestead situated at Checkers, Mbabane.
The court found that the orders sought by Moses were themselves inconsistent with both the Constitution and its spirit.
“The orders sought by the applicant are inconsistent with the provisions and spirit of the Constitution,” the judges ruled before dismissing the application.
Section 34 of the Constitution protects the property rights of spouses. Subsection (1) provides that a surviving spouse is entitled to a reasonable provision from the estate of a deceased spouse, whether or not the deceased left a Will. Section 34(2) further requires Parliament to enact legislation regulating the property rights of spouses, including those married under customary law.
The court held that the constitutional protection afforded under Section 34 is incompatible with the customary practice that automatically regarded marriages under Eswatini Law and Custom as being out of community of property.
The judges said because they had found the customary practice to be unconstitutional, there was no need to determine the other legal issues raised by the respondents.
“With the above orders, the need to determine the other points of law raised by the third to seventh respondents falls away as the case for the applicant fails entirely,” the judgment states.
The court ordered each party to pay its own legal costs.
The ruling comes despite government having drafted the Matrimonial Property Bill, 2022, to give effect to Section 34(2) of the Constitution, which requires Parliament to regulate the property rights of spouses. The Bill, which seeks to regulate matrimonial property rights and recognise both monetary and non-monetary contributions by spouses, has yet to be enacted into law.
The court held that under Section 34 of the Constitution, customary law marriages are equated to civil law marriages in community of property.
The ruling stems from an application brought by Moses, who sought to set aside a master of the High Court ruling dated December 5, 2024, and requested a court order declaring him the sole owner of Portion 962 of Farm No.2 situated in Mbabane.
Moses married Lindiwe Bindzile Dlamini under Eswatini Law and Custom in 1985. Lindiwe passed away on October 21, 2020.
Moses, according to the evidence, acquired property in Mbabane on April 14, 1987, which was consolidated into Portion 962 of Farm 2. He constructed a dwelling house on the land, where the couple lived together and raised their children. The title deed for the property is registered solely in the name of Moses.
Following the death of his wife, the master of the High Court issued a ruling on December 5, 2024, in terms of Section 51bis (7) of the Administration of Estates Act No. 28 of 1902. The master held that Lindiwe held an interest in the property amounting to a child’s share.
Moses challenged the master’s ruling, arguing that a customary marriage creates no joint estate and that property on title deed land registered under his name belongs to him exclusively.
He intended to sell the property to settle a loan debt exceeding E2.8 million with Standard Bank and to resolve ongoing family disputes.
The children of Lindiwe, who were respondents, Thulisile Carol Dlamini, Gcebile Dlamini, Delsile Mbali Dlamini, Tito Msimisi Dlamini and Ndumiso Hlatshwayo opposed the application. They were represented by Meluleki Ndlangamandla of M.L.K. Ndlangamandla Attorneys.
The attorney general (AG) and the master of the High Court argued that treating customary marriages as out of community of property violates constitutional rights to equality, dignity and property. The AG was represented by Senior Crown Counsel Sibonginkhosi Dlamini.
Chief Justice Bheki Maphalala empanelled a full bench to hear the constitutional questions.
The High Court rejected Moses’ argument that customary marriage proprietary consequences are governed exclusively by customary law rather than the Constitution. Citing sections 2(1) and 252 of the Constitution, the court held that customary law is subordinate to the Constitution and must pass the test of constitutionality to be recognised or enforced.
The court made a number of findings. It found that Section 34(1) entitles a surviving spouse to a reasonable provision out of the deceased spouse’s estate, regardless of whether the marriage was contracted under civil or customary rites.
The court also found that Section 34 establishes a joint estate by default for monogamous customary marriages. Under a joint estate, spouses are equal co-owners of all assets from the moment of marriage, meaning the estate of Lindiwe retained a 50 per cent share in the property.
According to the court, the homestead in this matter functioned as a family home where the family resided and raised children, rejecting Moses’ argument that it was merely a lilawu (work residence).
“Selling a family home amid familial disagreement offends Section 27(5), which mandates that the State and society preserve family cohesion and values,” reads the judgment.
The court further found that treating customary marriages as out of community of property while civil marriages are presumptively in community of property constitutes unconstitutional discrimination based on gender and marriage type.
“Limiting a surviving customary spouse to a ‘child’s share’ under intestate succession laws ignores financial and non-financial contributions to the household, subjecting the surviving spouse to degrading treatment in violation of Section 18,” further states the judgment.
The court held that attempting to exclude the deceased wife’s estate from its joint share in the property constitutes an unlawful deprivation of property rights under Section 19.
In its final orders, the court concluded that the practice of regarding a marriage in terms of Eswatini Law and Custom to be out of community of property is inconsistent with Section 34 of the Constitution and is declared void to the extent of that inconsistency.
It also concluded that the orders sought by Moses are inconsistent with the provisions and spirit of the Constitution and were dismissed. Each party was ordered to bear its own costs.
