MBABANE – The master of the High Court wants the court to declare the customary practice of having no joint estate as unconstitutional.
The master also wants this practice to be declared a violation of the Eswatini Constitution.
The attorney general, appearing for the master, made this submission in the case of former civil servant and businessman, Moses Msongelwa Dlamini, also known as Bhekokwakhe, who is challenging a ruling by the master of the High Court.
The master of the High Court had determined that in Eswatini, no married man can claim 100 per cent ownership of a family home, even if it is on title deed land, and that his deceased wife’s estate held a child’s share interest in the property. The master’s decision prevents Moses from selling a family home on Portion 962 of Farm No.2 in the Hhohho Region, which he wants to be declared the sole owner of.
He argues that no joint estate exists for the property he acquired and registered in his name and he and his late Eswatini Law and Custom wife, Lindiwe Bindzile Dlamni, were allegedly married out of community of property.
Moses’ argument is that there is no joint estate between a husband and wife under Eswatini Law and Custom.
The master and Moses’ children are opposed to his application to review the decision of the former. The master was represented by Sibonginkhosi Dlamini from the Attorney General’s Chamber. According to the master, under Eswatini Law and Custom, the head of the family does not have the unilateral authority to sell a homestead.
Sibonginkhosi argued that the customary practice argued by Moses is unconstitutional as it discriminates against women.
He submitted that denying a deceased wife a joint estate under Eswatini Law and Custom is a violation of the constitutional provisions guaranteeing equality, dignity and property rights.
The second part of the argument is with regard to the cultural and spiritual importance of the family homestead under Eswatini Law and Custom.
The master’s heads of argument state that even though the property in question is on title deed land, its nature as a traditional homestead means it should not be treated as a commercial asset.
A homestead, according to the heads of argument, is considered a sacred familial space, not a commodity.
He said selling it is seen as a betrayal of family lineage and a violation of traditional norms.
“It is a place for ancestral rituals and family gatherings, and selling it would sever the family’s link to their ancestors,” states the heads of argument.
It was further argued on behalf of the master that under customary law, the head of the family does not have the unilateral authority to sell a homestead. Sibonginkhosi submitted that consent from the wife and children, who are now adults, is required. In this case, according to Sibonginkhosi, Moses did not seek the necessary consent.
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