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By Sifiso Nhlabatsi | 2019-07-24
The High Court will soon make a landmark ruling where it will decide whether sections of the Marriage Act 47 of 1964 should be abolished or not.
Yesterday, legal representatives from the Women and Law of Swaziland (WLSA) were in court where they presented their arguments on why they feel certain sections of the Act are unconstitutional as they give more power to men than women.
The matter is before the High Court full-bench which now constitutes itself into a Constitutional Court and was heard by Principal Judge Qinisile Mabuza, Judge Nkululeko Hlophe and Judge Titus Mangeni.
The argument was that the purpose of marital power is that someone must be in control and men tend to abuse that power. The complaint that was raised is that people get married through civil rites but the consequences are faced in common law. WILSA’s argument is that the issue of marital power denies women their rights.
Submissions made at the High Court yesterday by WILSA legal team was that the High Court declare Section(s) 24 and 25 of the Marriage Act 47 of 1964 unconstitutional in that it violates Sections 18, 20 and 28 of the Constitution of Swaziland Act 001 of 2005.
The first half of Section 24 of the Act, it was argued, provides that the consequences of marriage under the Act are to be governed by common law. The second part of it, according to papers submitted to court says if the parties are Africans, the marriage consequences shall be in accordance with Swazi Law and Customs unless they exercise an option in terms of Section 25 of the Act. This section, according to WILSA, is discriminatory.
The court was informed that the principle of marital power gives a husband married under civil rite and in community of property three broad powers: The husband’s power as head of the family, by which power he has the decisive say in all matters, concerning the common life of the family. The second power is the husband’s power over his wife, including legal representation and lastly it is the husband’s power over the property of the wife, by which he administer the joint estate as if the regime is in community of property.
Section 25 it was argued provides relevantly an application for an option where the parties to the said marriage are Africans.
“The parties are to decide before the solemnisation of the marriage will be in accordance with common law, thereby excluding the application of customary law.
According to the applicants, Section 24 and 25 of the Marriage Act of 1964 dictates that material power and property rights should be governed by Swazi Law and Custom.
The problem, however, is that Swazi Custom vests these powers in the man, not the woman. This is viewed by WILSA as something which violates the Bill of Rights which is enshrined in the Constitution.
However, in the heads of argument presented by Crown Counsel Malibongwe Mashinini, representing the Office of the Attorney General, was that there are many other couples who would happily want their marriage to be in terms of Section (s) 24 and 25 un-amended or with minor amendments if any.
The AG argued that in any case prayers 1 and 2 are bad in law, in that with Section (s) 24 and 25 invalidated as prayed, there will be a vacuum for there will be nothing to inform as to what are the consequences of the marriage under the Act will be.
It was argued that with the removal of marital power, government’s lawyers stated that one has to be considerate of the multitudes of women, married in community of property who are at peace with the current setting of marital power.
According to WILSA, government has signed many treaties advocating for gender equality and women’s rights but is failing to implement such.
The argument was that countries such as Botswana, Lesotho and South Africa have made amendments to Marriage Acts infringing on women’s rights.
Government’s legal team is objecting to the application made by WILSA, saying the application for invalidating Section (s) 24 and 25 as a whole is not necessary because there are other options that applicants could have opted, in order to attain the remedy being sought, such as seeking an order of court in varying the control of the communal assets.
However, the judges pointed out that it is not everyone who has easy access to court.
The Attorney General’s Office argued that marital power is a variable consequence of a marriage and is not automatic.
“The parties can choose to exclude marital power by opting to enter into an antenuptual contract of marriage,” part of the argument from the Attorney General’s office read.
After making the submissions, the respondent which is the government team, indicated that they will now await the court’s decision in the matter.
The judges indicated that they will make judgment on the matter very soon and they pointed out that the parties will be informed once judgment is ready.
Representing WLSA in the matter is lawyer Mzwandile Dlamini from MS Dlamini Legal.
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