Historic Step towards Equality for Swazi women

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Historic step towards equality for Swazi women:

An analysis of Mary-Joyce Doo Aphane v the Registrar of Deeds

Maxine Langwenya

OPEN DEBATE 06 Historic step towards equality for Swazi women: An analysis of Mary-Joyce Doo Aphane v the Registrar of Deeds

CONTENTS 03

Introduction

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Women in Swaziland

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Land ownership in Swaziland

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Unpacking the Aphane judgement

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Technical issues arising from the case

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Should Swazi women focus on the courts?

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Conclusion

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Bibliography

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Endnotes

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a woman married in community of property is under the marital power of her husband

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1.

INTRODUCTION There is nothing extraordinary about Mary-Joyce Doo Aphane.

Nor is there anything extraordinary – in most countries – about her desire to register a newly-bought property in both her and her husband’s names. What is extraordinary is that she still couldn’t do that in Swaziland in the 21st century, despite being married in community of property. And what is even more extraordinary is that she took on the out-dated, discriminatory laws in court and won – the first time that Swaziland’s 2005 Constitution has been used as the basis to protect women’s rights.

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rue, the Supreme Court technically overturned the decision on appeal but it did not alter the spirit of the ruling – that Swazi women married in community of property have the right to register property in their own names as well as their husbands. This might seem like a minor victory but for Swazi women – who are still legally regarded as minors in many ways – this could mark a major turning point in their long battle for equality. It all began in November 2008 when Aphane and her husband, Michael Zulu, bought a piece of land in the capital, Mbabane, and tried to register it in both their names.

Aphane had continued to use her maiden name after their wedding and as they were married in community of property – where all their property is combined in a joint estate regardless of whether

it was acquired before or after the marriage and regardless of how much each one contributed – she believed that she had the right to have her name and her husband’s on the title deed.

But she didn’t – or not according to the office of the Registrar of Deeds, which informed them that the property could only be registered in the name of Michael Zulu in accordance with Section 16 (3) of the Deeds Registry Act, 1968. This provision is based on Swaziland’s common law, which still adheres to the view that a woman married in community of property is under the marital power of her husband. In other words, the wife is legally classified as a minor in this instance and her husband becomes the sole administrator of their joint estate.

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Faced with what appeared to be an unconstitutional provision and a clear case of discrimination based on gender, Aphane instituted legal action against the office of the Registrar of Deeds, the Minister of Justice and Constitutional Affairs and the office of the Attorney General. In her court papers, Aphane argued that the Deeds Registry Act violated her constitutional rights to register property in her maiden name since the Act states that women married in community of property can only register their immovable property in the name of their husbands Aphane sees herself as an accomplished woman, citizen and person – and does not believe that her status as Zulu’s wife should limit her ability to enjoy the rights, privileges and standings enjoyed by others. By going to court, she was simply claiming the right to be treated in the same way as her husband rather than being regarded as an appendage – as a minor who cannot exercise adult rights.

Interestingly, the government did not even try to fight the case on constitutional grounds. The State’s lawyer agreed that section 16 (3) of the Deeds Registry Act is prima facie unconstitutional but argued that the court should not remove it from the statute but should instead follow the principle of avoidance. Aphane’s lawyer responded that the principle of avoidance does not apply when the aggrieved person cannot get a remedy without a determination of the constitutional issue.

The High Court of Swaziland ruled in favour of Aphane and the decision was celebrated by many women in Swaziland and across the region as a huge step towards protecting women’s property rights – and promoting greater equality. However, the judgment also raised a number of critical questions about whether other women in similar marital

regimes and those married under different regimes could use this ruling to claim their own rights.

The situation was complicated when the government appealed the judgment and – in an unusually speedy finalization of litigation proceedings in Swaziland – won the case in the Supreme Court in May 2010, arguing that the High Court had usurped the power of Parliament and appropriated to itself the function of law-making.

However, while the Supreme Court upheld the appeal, it also upheld the spirit of the original decision by declaring Section 16 (3) of the Deeds Registry Act invalid because it is inconsistent with sections 20 and 28 of the Constitution. But it then suspended this declaration of invalidity for 12 months to give parliament time to pass a law to amend the unconstitutional section.

The Supreme Court also authorised the Registrar of Deeds to register immovable property in the joint names of husbands and wives married to each other in community of property while parliament was working on the new legislation. And lastly, the Supreme Court ordered that, if parliament were unable to change the Deeds Registry Act within a year, the Attorney General could ask the court for an extension of time.

So what is the current situation? There is no doubt that Section 16 (3) is unconstitutional and that Swazi women married in community of property may now register property jointly in their own and their husband’s names. But the other ramifications of this historic decision are not so clear. This paper aims to bring some clarity to these broader issues and illustrate how much this decision has changed the status of women in Swaziland.

OPEN DEBATE 06 Historic step towards equality for Swazi women: An analysis of Mary-Joyce Doo Aphane v the Registrar of Deeds

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2.

Women in Swaziland

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o fully grasp the implications of the judgment, we have to understand the general status of women in Swaziland. Like many other African countries, sexist social, cultural and patriarchal norms in Swaziland serve to subordinate women. Some of these negative customs and practices have been entrenched in common law, statute law and Swazi law and custom1. Consequently, Swazi women do not enjoy equal rights, particularly in the area of land ownership since the legal system affords men ownership rights and women only user rights.

Women in Swaziland continue to be judged as less valuable than their male counterparts. They are discriminated against from very early in life because of the preference for sons and later enjoy limited participation in economic and public life.

This discriminatory system seemed likely to change after Swaziland acceded to the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) in 2004 and even more so after the country adopted a new Constitution in 2005. The Constitution entrenched the right of equality for all before the law, which embraces the critical principle of non-discrimination in Section 20, as well as the rights and freedoms of women in Section 28.

On the face of it, adopting these rights seems to underline the country’s willingness to respect and uphold the rights of women. However, the reality is that this theoretical commitment to women’s rights

is not matched by any zeal to repeal discriminatory laws, even though they are now unconstitutional.

It is disheartening that five years after the Constitution became law, there has not been a single piece of legislation passed to tackle discriminatory imbalances in Swazi law. This is contrary to a plethora of legislation2 that has been passed by the South African Parliament following the promulgation of the Constitution Act of 1994.

This clash between legal rights and actual laws means that women continue to be discriminated against in Swaziland in ways that are fundamentally unjust and constitute an offence against human dignity. 3 Furthermore, discriminating against women when there is a supreme constitution that advocates for the principle of non-discrimination is a travesty of justice.

Fortunately, the Bill of Rights chapter in the Constitution, which embraces the provisions in the International Covenant on Civil and Political Rights, allows every person the right to bear witness to violation and the right to protection from deeply entrenched cultural stereotypes and unjust and discriminatory laws – rights that can be asserted and enforced by the courts. Aphane and her legal team understood these critical – but underused rights – and for the first time ever used the 2005 Constitution as the basis to challenge age-old laws that discriminate against women.

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3.

Land ownership in Swaziland

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n Swaziland, land ownership is regulated by section 211 of the Constitution:

‌all land (including any existing concessions) in Swaziland, save privately held title deed land, shall continue to vest in iNgwenyama in trust for the Swazi Nation as it vested on the 12 April, 1973; Save as may be required by the exigencies of any particular situation, a citizen of Swaziland, without regard to gender, shall have equal access to land for normal domestic purposes; and, A person shall not be deprived of land without due process of law and where a person is deprived, that person shall be entitled to prompt and adequate compensation for any improvement on that land‌ Traditionally, the King of Swaziland in his capacity as the iNgwenyama is the custodian of Swazi law and custom and also the repository of all land except privately owned title deed land.

The concept of holding land in trust for the Swazi nation was aimed at ensuring that all Swazi citizens were able to access land on which they

could build houses and carry out subsistence farming. However, only a married man can be allocated a portion of Swazi Nation land and he does not own the land so he cannot use it as security or collateral let alone sell it.

A large number of Swazis live on Swazi nation land, which is under the control of traditional chiefs, who are accountable to the king. A wife is expected to accompany the husband when he goes to the chief to ask for land but her presence is merely to prove that he is married – not necessarily to have any say in the process. Men can also access communal land through inheritance. In Swaziland, like in most countries in southern Africa, inheritance laws discriminate against women since it is always the son who inherits land and other resources.

Therefore women can only gain access to communal land on the basis of patronage and the largesse of their husbands, fathers, sons and other male patriarchs, which puts women at a distinct disadvantage.

OPEN DEBATE 06 Historic step towards equality for Swazi women: An analysis of Mary-Joyce Doo Aphane v the Registrar of Deeds

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4.

Unpacking the Aphane judgement The concept of marital power revisited

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he property rights of married women in Swaziland are dependent on the concept of marital power – the power that husbands and wives can exercise within the confines of the law. Contrary to human rights principles enshrined in the Universal Declaration of Human Rights, CEDAW and the Bill of Rights chapter of the Constitution of Swaziland, a woman in traditional Swazi society is not entitled to equal rights during marriage. The Swazi customary law of marriage and the civil rites marriage establish that the husband is the head of the family and takes major decisions affecting the household.

power – such as when the husband fraudulently donates assets to third parties or when he is insane.

This effectively means that a wife cannot perform any legal act without the assistance of her husband and that after the wedding she immediately reverts to the status of a minor even if she had already reached the age of majority4.

This is why, in terms of the Deeds Registry Act, property belonging to the joint estate is registered in the name of the husband in his capacity as the administrator of the joint estate.

Under a civil rites marriage, the husband is empowered by law to determine the direction taken by the marriage and the establishment of their domicile. The wife is always subordinate to his will, particularly if the marriage is in community of property when the husband controls the family property and the power (duty) to represent his wife in court.

Indeed, the implications of the legal position for women married in community of property are dire. It has been held that ‘a wife in this position is worse off than a minor under guardianship: the latter’s property is at least protected by the law against the greed or incompetence of the guardian. Any protection that the wife may have under common law against an irresponsible or fraudulent husband is…too weak, comes too late, and in the African context is probably totally irrelevant’.5

It is only in exceptional circumstances that the courts will interfere with the husband’s exercise of marital

It is important to note that the majority of women in Swaziland – like Lesotho6 – are not married out

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if a woman’s name appears on the title deed, her husband will still remain the sole administrator of the property because of marital power

of community of property, which allows spouses to prepare, sign and register an ante-nuptial contract that states that all the property acquired before and during the marriage is not held in equal shares in a joint estate and also excludes the husband’s marital power.

However, the real and potential abuses caused by a husband’s marital power are too serious a matter to be left to individuals to prevent by entering into specific ante-nuptial contracts. Protection of a woman’s property rights in any marriage should be built into the law – as they are in Botswana where spouses have to sign an ante-nuptial contract to be married in community of property otherwise the marriage is automatically out of community of property. Meanwhile, South Africa abolished the concept of marital power through the Matrimonial Property Act of 1984. Under this Act, people married in community of property participate equally in the conclusion of major transactions.

It is no secret that the law on marriage in Swaziland is in a state of flux and in serious need of reform. Civil society should advocate for a speedy amendment of our family law and for the abolition of the concept of marital power as it is the basis of the discrimination of women married in community of property. The Aphane case has helped to break the silence and begin to tackle the out-dated and discriminatory practices based around male marital power but much more still needs to be done.

Does the court decision change the concept of marital power?

Some commentators7 argue that the Aphane judgment has given Swazi women the right to own and administer property in their own names.

Aphane herself is also on record as saying that ‘now women can use their 50 percent of the property they jointly own with their husbands as collateral to get loans to start businesses’.

I respectfully disagree. The judgment did not deal with the legal position establishing the minority status of women nor did it address the common law position of marital power. Even after this case, it is still a legal requirement for women, unlike men, to disclose their marital status when they want to register property. I would also argue that even if the names of women married in community of property can now appear on title deeds, they will still have to get consent from their husbands before doing whatever they want with the property – as they cannot enter into a legal contract on their own.

Furthermore, before a woman can register property jointly with her husband, she first has to buy the property but banks are unable to enter into such a transaction unless the woman has the consent of her husband.

So in my view, while this case is certainly an important step, celebrating victory at this stage

OPEN DEBATE 06 Historic step towards equality for Swazi women: An analysis of Mary-Joyce Doo Aphane v the Registrar of Deeds

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want to register property in their names since the ruling does not apply to transactions prior to February 23, 2010, when the judgment was handed down. In other words, it does not have retrospective effect so other women will have to continue to live with the consequences of unfair discrimination due to the unconstitutional Section 16 (3) in the Deeds Registry Act.

is premature because even if a woman’s name appears on the title deed, her husband will still remain the sole administrator of the property because of marital power – allowing him to enter into transactions on behalf of the joint estate without the knowledge or consent of his wife.

This position is contrary to principles of constitutional interpretation where a court declares a law to be invalid since this declaration must operate retrospectively. In principle, the declaration invalidates the legislation from the moment the legislation or the constitution came into effect and not from the moment of the court’s order.

Even after this case, marital power remains firmly with the husband since current laws still do not allow a woman married in community of property to act independently when she wants to acquire and register property.

Construed in this way, the Aphane judgment should have ensured that Section 16 (3) was invalidated in July, 2005 when the constitution came into effect. But to avoid nullifying registrations concluded by men married in community of property after that point, the court specifically stated that the order was effective from the date it was pronounced.

The best solution would be for the legislature to enact a law that would set aside the concept of marital power as postulated in our common and statutory laws. Most countries have done this to eradicate this specific form of gender discrimination8 – and the Aphane judgment has highlighted the urgent need for action in Swaziland.

As for inheritance, women married in community of property have suffered in the past following the deaths of their husbands because they are forced to pay to re-register the land in their name – something men obviously do not need to do. Now that women can register property in their names it should make the process easier.

Who else benefits?

It is vital that civil society takes up these issues and pushes for further reforms to end discrimination against women. The Aphane case has paved the way but civil society – and particularly the women’s movement – in Swaziland needs to ensure that the momentum continues and that other out-of-date, unconstitutional and discriminatory laws are either reformed in parliament or struck down by the courts.

The Supreme Court’s decision means that any woman married in community of property can now have land registered in her name as well as her husband’s. However, it is unclear yet whether the Aphane case will have any impact on women married under different rules.

But the judgment will certainly not benefit all women married in community of property who

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Technical issues arising from the case

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s a preliminary point, it must be noted that constitutional remedies are not awarded by courts to individuals as they aim to rectify a wrong against the whole society and not against a specific individual. In the case at hand, the violation impedes the realization of the constitutional project of creating a just society that is free from discrimination and where all people are equal before the law regardless of their marital status. By striking down the offending legislation, the aim was to vindicate the constitution and deter future infringements.

Courts can provide remedies to constitutional defects in legislation either through severance or reading in. Severance is used in cases where it is necessary to remove offending parts of a statutory provision – either through actual severance (striking out of words and phrases from a legislative provision) or notional severance (leaving the language intact but subjecting it to a condition for proper application). Reading in is used when the inconsistency is caused by an omission, and it is necessary to add words to the statutory provision to cure it.

Courts are generally reluctant to use the power to read in to cure an omission in legislation because that they do not want to encroach on the doctrine of separation of powers. In cases where various policy options exist and are open to the legislature to cure the constitutional defect in legislation, the court will not resort to reading in.9 In its judgment, the High Court decided that Section 16 (3) of the Deeds Registry Act had to be struck down because it was unconstitutional and that certain words had to be inserted to make it conform to sections 20 and 28 of the Constitution10. The government argued that the amendment was not only incoherent, but that in so amending the law, the court had usurped the functions of Parliament and deviated from the doctrine of separation of powers.

The question is – did the High Court really encroach on the law-making function of the legislature?

In my view, the court did not usurp the powers of the legislature as the constitutional defect could not be cured by any other means except through

OPEN DEBATE 06 Historic step towards equality for Swazi women: An analysis of Mary-Joyce Doo Aphane v the Registrar of Deeds

reading in and striking down the offending parts of the provision. Indeed, repealing the offending section is the only option available to the legislature in order to cure the constitutional defect.

Courts do have a responsibility to adhere to the concept of deference, which involves ‘restraint by the courts in not trespassing onto that part of the legislative field which has been reserved by the constitution …to the legislature.” 11 Indeed, the Court acknowledged in the Aphane case that it is the role of Parliament to amend laws to make them conform with the constitution.12 However, as ultimate interpreters of the constitution,13 judges must ensure compliance with the Bill of Rights. While Parliament may be expected to design a legislative framework, it is the exclusive preserve of the courts to determine whether or not that framework operates within acceptable constitutional bounds. The role of the courts is to use their power – to the limited extent that it exists – to reverse historic discrimination against women in general and women married in community of property in particular. The courts are expected to interpret and clarify the law so as to uphold women’s rights. The courts should not abdicate their role.

I believe that the positive rights articulated in sections 20 and 28 of the Constitution were violated by the inaction by the legislature – by its failure to reform the law to ensure that it complies with the Constitution. Positive rights are violated by mere inaction and when this happens the obligation to proactively take measures to address inequalities is triggered and gives rise to claims in the courts for positive action to be taken by the legislature and other duty bearers. In this way, the right to equality becomes a shield that can be used to defend gains secured by vulnerable groups as well as a sword that can be used to proactively secure legislative action to achieve equality.

In cases where Parliament is reluctant or disinterested in reforming the law, it is important that courts be persuaded in appropriate cases

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that they should decide the issue before them and should not wait for law reform. This is particularly appropriate in Swaziland where Parliament is moving at a very slow pace to amend and repeal laws that are not in conformity with the constitution, especially those that have a telling effect on women’s rights.

The government had also argued that the High Court should follow the principle of avoidance, which requires a court first to try and resolve a dispute by applying ordinary legal principles as interpreted or developed with reference to the Bill of Rights, before applying the Bill of Rights directly to the dispute.

If the court had adhered to this principle, it would not have removed certain words from section 16 (3) of the Deeds Registry Act. Instead, it would have reasoned that Aphane and Zulu should be allowed to register the property in their joint names and then give due deference to Parliament to effect the necessary changes in the law to make the Deeds Registry Act compliant with the constitution.

However, the question is whether or not the Bill of Rights was indirectly or directly applicable in the Aphane case and I would argue that it was directly applicable since she argued that she was unfairly discriminated against purely on the grounds of her gender and by virtue of being married in community of property – and that this was contrary to the provisions of sections 20 and 28 of the Bill of Rights and therefore unconstitutional.

The effect of the direct application of the Bill of Rights was that Aphane would have been without a remedy if the court did not strike down the offending provisions in the Deeds Registry Act. The principle of avoidance cannot apply where the aggrieved person is left without a remedy as a result of non-determination of the constitutional issue. Therefore, the court – correctly in my view – did not adhere to the principle of avoidance for these reasons.

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Should Swazi women focus on the courts?

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In the context of Swaziland, most of the laws touching the public arena have been modernized and brought into line with more enlightened thinking while family and personal laws have been left untouched by the State – such as the common law issue of marital power, the offending provisions of the Marriage Act and the Administration of Estates Act. The Domestic Violence and Sexual Offences bill is still being looked into five years after it was first tabled before Cabinet.

Parliament has proceeded very slowly when it comes to amending laws relating to women’s rights to make them conform to the constitution but law reform is still critical in relation to the long-term goal of ending discrimination and ensuring equality – so legislative advocacy should be continued and enhanced.

However, in the meantime, law is a tool which, placed in the right hands, can be used to improve women’s position both symbolically (as an educational tool) and instrumentally (to bring about reforms). This is difficult in the absence of a coherent, organized women’s movement – as is the case currently in Swaziland. This does not augur well for the protection and promotion of

women’s rights. It is about time that women formed themselves into a strong women’s movement and challenged the discriminatory laws and parliament’s lackadaisical approach to women rights issues. One way of doing so is by following Aphane’s example and approaching the courts for a remedy where women’s rights continue to be infringed by discriminatory laws.

Indeed, many of the most important victories for women have been achieved through the courts rather than through law reform. But litigation is a very hard way to bring about change. It depends on suitable cases. It takes a great deal of time. It requires creative and sensitive judges to be persuaded to interpret law creatively. It is expensive. It is incremental, bringing with it the danger of slow piecemeal changes. And above all, it can be very difficult to translate the success of individual women in the courtroom into benefits for all women. This is where the issue of a strong women’s movement and civil society becomes essential as it is these institutions that can be tasked with the responsibility of continually advocating for respect for women’s rights and the reform of laws that still treat women as second class citizens.

OPEN DEBATE 06 Historic step towards equality for Swazi women: An analysis of Mary-Joyce Doo Aphane v the Registrar of Deeds

It is about time that women formed themselves into a strong women’s movement and challenged the discriminatory laws and parliament’s lackadaisical approach to women rights issues.

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Conclusion

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n a number of constitutions 14 there are non-discrimination clauses that are rendered largely meaningless since discrimination against women continues in matters of personal and customary law. In some SADC countries, women are perpetual legal minors, whether under customary or statutory law. However, there has been a noticeable shift in this region towards greater recognition of international human rights standards in the interpretation of women’s constitutional guarantees, as evidenced by progressive case law in South Africa, Zimbabwe and Botswana.

Ground-breaking legislation has addressed fundamental challenges such as protection from sex discrimination in Mauritius, equality in marriage in Mozambique and Namibia and discriminatory inheritance laws in Zambia and Zimbabwe. South Africa has also outlawed the concept of marital power and replaced it with more equitable legislation. Meanwhile,

Botswana repealed the equivalent of Swaziland’s Section 16 (3) of the Deeds Registry Act and replaced it with neutral legislation that does not discriminate against women according to the marriage regime they opted for.

Swaziland should take a leaf out of these countries’ forward-thinking legislative books and outlaw discrimination on the basis of gender since women have the same rights as men and because these equal laws provide a more enabling environment for economic advancement of women and the country.

Swaziland’s women must now wait and see how quickly parliament amends the unconstitutional Section 16 (3) of the Deeds Registry Act. When the Act has been legally reformed then we can really celebrate a major victory.

But Mary-Joyce Doo Aphane still deserves great credit. The government might have won its appeal in the Supreme Court but the

OPEN DEBATE 06 Historic step towards equality for Swazi women: An analysis of Mary-Joyce Doo Aphane v the Registrar of Deeds

the Constitution is not just paper and that it can be used as the basis to promote and protect women’s rights

provisions in the Deeds Registry Act have been publicly declared unconstitutional and the discriminatory regulations will eventually disappear from our statute books. Aphane and other women married in community of property can now register property jointly in their own and their husband’s name.

The case has also shown that the Constitution is not just paper and that it can be used as the basis to promote and protect women’s rights.

Obviously the Aphane judgment did not make women equal overnight. It is a first step and lots of hard work – advocating for women’s rights, pushing for legislative reform, fighting battles in court – needs to be done. But the case showed that there is hope of real change and that there is space for women’s organizations to challenge more laws that are discriminatory, unfair and keep them subordinate to men.

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Bibliography

Endnotes

1. Peters J et al “Women’s Rights Human Rights” Routledge, New

1. Swaziland has a dual legal system. It applies Roman Dutch

York, 1995

common law as well as statutory law on the one hand and Swazi law and custom on the other. See Section 252 of the Constitution

2. Adelman, S et al “Law and Crisis in the Third World” Hans Zell

Act No. 1/ 2005

Publishers, London 1993 2. See the Employment Equity Act 55 of 1998; and the Promotion of 3. Maqutu, W.C.M. “Contemporary Family Law” The Lesotho Position

Equality and Prevention of Unfair Discrimination Act 4 of 2000.

National University of Lesotho Publishing House, Roma 2005 3. CEDAW 4. Currie, I et al “The Bill of Rights Handbook” Juta & Co Ltd, Landsdowne 2005

4. See the Age of Majority Act No 11 of 1953 which confers the age of majority on all citizens of Swaziland at the age of 21.

5. Murray, C et al “Advancing Women’s Rights” Faculty of Law, University of Cape Town, 2005

5. Armstrong & Nhlapo 1983. p36

6. Women & Law in Southern Africa Research Trust “Family in

6. Maqutu, 2005. p 459.

Transition, the Experience of Swaziland” Ruswanda Publishing Bureau, 1998

7. Phakathi, M at http://allafrica.com/stories/2010003050891. html visited on 3 April, 2010.

7. Women & Law in Southern Africa Research Trust “The Changing Family in Zambia, Aquilla Printers Ltd, Lusaka, 1997

8. South Africa has replaced the concept of marital power with the Matrimonial Property Act, a very liberal law in this respect.

8. Women & Law in Southern Africa Research Trust “Inheritance in Zimbabwe” SAPES Trust, Harare, 1994

9. Dawood v Minister of Home Affairs 2000 (3) SA 936

9. Women & Law in Southern Africa Research Trust “Inheritance in

10. See page 15 of the judgment.

Zambia Law and Practice” 1994 11. P.66 National Coalition of Gays & Lesbians’ case 10. Southern Africa Development Bulletin Issue No. 13, December, 2003 “Gender and Development in Southern Africa after the 1997

12. Page 15 where the judge states “Parliament is enjoined to

SADC Gender Declaration” United Nations Economic Commission

urgently put into motion the law reform process so that offending

for Africa Southern Africa Office, Lusaka, Zambia.

statutory provisions such as section 16(3) are completely removed from our statutes”.

11. Langwenya, M “ A Critical Review of the Relationship Between the Universal Declaration of Human Rights and the Constitution:

13. Paragraph 7 of the Preamble of the Constitution of Swaziland

A Comparative Analysis” A paper presented on the 10 December, 2008 at the Convention Center, EZulwini in celebration of sixty

14. Zimbabwe, Zambia, Lesotho, and Botswana (see Southern

years of the signing of the UN’s UDHR.

Africa Development Bulletin Issue No 13, December, 2003 at p14.

12. Justice Mailula, M. L “Gender, Culture and the Law Key Issues and Challenges” A paper presented at the Commonwealth Southern & East Africa Colloquium on Gender, Culture & the Law, 21-23 May, 2008.

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Maxine Langwenya holds a Master of Laws in International Human Rights Law from the University of South Africa; a Master of Laws in Law in Development from the University of Warwick; a Bachelor of Laws and a Bachelor of Arts in Law from the University of Swaziland. She is a lecturer in Law at the University of Swaziland where she teaches constitutional law and criminal procedure. Maxine’s areas of research interest are development law, women’s rights and children’s rights. She has participated in the consultation process around the development of the Children Protection Act which was recently passed as law in Swaziland.