INTESTATE SUCCESSION UNDER SWAZI CUSTOMARY LAW; UNEARTHING THE PLIGHT OF WOMEN AND CHILDREN.
By; #Phakama Shili
The law of succession regulates the form and manner in which a deceased person’s estate is dealt with. This is regardless as to whether the deceased died having made a will or not; that is to say whether the person died testate or intestate. Swaziland observes a dual legal system which comprises of the modern law inherited through the Roman Dutch Common Law and Swazi customary law a bulk of which is not written and emanates from the long practices by indigenous Swazis. With this status core Swaziland’s law of succession varies depending on the form of marriage which persons enter into. For instance a civil rites marriage is regulated by the Intestate Succession Act No 3/1957 whilst inheritance in a customary marriage is regulated by Swazi customary law.
Inheritance under Swazi customary law does not allow women to inherit from the estates of their late husband’s and relatives. Girls do not succeed to their father unless their father makes a donation to them during his lifetime. Widows only succeed in exceptional circumstances where the rules of intestacy fail to provide an heir, they may enjoy use of the heirs inheritance provided they stay with him. The established rules of inheritance under Swazi customary law only allow males to inherit property from a deceased person. This discrimination is justified by the minority status which women possess until they die. The principles of customary law have also restrain freedom of testation as the family inner council (lusendvo- composes of the deceased headman’s family, including his aunts, uncles, and brothers and sisters) is the final arbiter in dealing with a deceased person’s estate. In most instances a will under customary law is not written and does not comply with the provisions of the Wills Act which makes it prone to manipulation by the lusendvo who may disinherit beneficiaries.
This paper seeks to critically analyse the order of succession in terms of intestate succession under Swazi customary law and further discuss the recognition or otherwise of testate succession or succession in terms of a will with a view to make recommendations on the reformation of Swazi customary law and the making of a law that will take into account the provisions of the Constitution to regulate succession under Swazi customary law.
B) The order of succession under Swazi Customary Law.
Intestate succession in Swaziland is regulated by two very old and discriminatory legislations; the Intestate Succession Act 3/1953 and the Administration of Estates Act 29/1902. These laws discriminates Africans from non-Africans and treats differently customary marriages from civil rights marriages. A clear example is that of section 4 of the Intestate Succession Act which provides that the Act shall not apply to Africans whose estates are to be dealt with in terms of the customs of that African as provided by section 68 of the Administration of Estates Act.  In light of these provisions then Swazi Customary law comes into play to regulate intestate succession of estates of Swazis who are married on customary marriage and die having not made a will.
As already stated, under Swazi customary law women are not considered to inherit the estates of their late husbands and fathers. In terms of Swazi customary law there is only one heir who succeeds to the whole estate of the deceased and such person is chosen by lusendvo. Where the deceased headman had one wife, his eldest son, in the absence of factors which may disqualify him becomes heir. This therefore means that his siblings will not inherit but only benefit from the estate through their brother. This preference of the eldest son over his siblings and mother goes against the dictates of the Constitution which provides for equal treatment and non-discrimination of women.
If the deceased dies having married to two or more wives, the lusendvo will choose the principal wife and the oldest son of that wife or house will become the main heir. The main house is chosen on the basis of the ranking of the wives and character plays a crucial role in this regard. The discretion of lusendvo to select the main house may also be influenced by several reasons like the blue blood of the wife or the wife shares the same surname with the grandmother of the deceased husband or the wife was married through arranged marriage (kwendzisa). Apart from these considerations the lusendvo may appoint a principal wife on the basis of her personality and relations with the family members.
It is important to note at this point that the factors outlined above may also be overlooked by the lusendvo to benefit a house which they favour most. This situation does not however guarantee that the wife whose house has been chosen will benefit directly from the estate of her late husband but she will enjoy such benefits through her elder son who will be a custodian for the whole family. This arrangement was done with the perception that women could not handle family affairs properly hence everything needed to be put under the hand of a male figure. With civilization and women having jobs and owning their own properties, these practices have become irrelevant as women have proven to be capable of administering properties well.
In a situation where there is no son in all the households to be heir, girl children of the widows are not allowed to inherit. Rather the main wife or that only wife( in a monogamous marriage) may have to be given one of the late husbands’ brothers for a new husband by the operation of ‘kungena’ (levirate) and a son may be born from this arrangement and inherit as an heir. This further demonstrates the plight of women under Swazi customary law as they are treated like properties that are inherited by their in-laws.
When the levirate system does not take place, the deceased’s young brother coming next after him in seniority become heir. If such brother predeceases the headman then the brother’s own elder son or if the two situations fail then the next brother of the deceased or his son will become heir. In the absence of such younger brother of the deceased, or their own sons, the older brothers come in order of their seniority where in the same way as with the younger brothers as demonstrated above. If all the above fails then any senior male relative of the deceased will become heir to the estate of the deceased. It is important to note that in all the processes, the widow and her girl children have no say. In a situation where all the above does not provide an heir then it is resorted to the deceased’s sisters’ sons starting with the eldest sister (married sister) and if such also does not provide then the sons of the nephews in the same order of seniority or younger son. This process goes to even consider cousins in order to obtain an heir who must be male to inherit the estate. In a situation where all the above stages do not provide an heir it is then that the widow may inherit as a guardian of the estate for her children. This practice demonstrates how women are so much undermined by family structures. This also applies to when a woman dies leaving her property behind. The property is automatically inherited by her husband (if married) or her father (if unmarried).
With the enormous role of the family inner council in the affairs of the estate of a late person, it is very difficult for wills to be observed. The Swazi law and custom wills are not at all times written and evidence of such testation may not be available, for instance when the witness of such a verbal will predeceases the testator or are giving different versions as to the nature of the bequeath. Another is the problem of no freedom of testation, the Swazi law and custom allows certain persons to denounce a will of a testator and continuing to dispose of the property in intestacy even though the deceased person left a verbal will.  The lusendvo always decides how estates are administered and distributed if the person dies whether having made a verbal will or not.
In some parts of Swaziland, wills that are made by people married under Swazi customary law are observed especially when such are written as these are enforced by the office of the Master of the High Court. This however does not preclude the family members from forcefully evicting the widow and her children from the family home since a family home that is located on Swazi Nation Land normally does not form part of the property that is subject to a will as such land is perceived to be belonging to the nation and held in trust by the King. The family inner council may then forcefully take the family fields and use them for their own gain. This has been proven by the spate of evictions and displacements of women and children which has contributed to the high poverty rate.
Therefore, there is no recognition of freedom of testation. Furthermore, problems with customary law wills is that even persons who witness the making of such wills maybe beneficiaries to the will as the close relatives of the deceased like his elder sisters form part of lusendvo. Such a will should not be made known by the beneficiaries in that they may tend to accelerate the death of the testator. Such witnessing of the will by members of lusendvo might cause or sow seeds of hatred of the beneficiary by those who are not mentioned as beneficiaries. It can even sow seeds of hatred among the beneficiaries themselves even before the death of the testator. There is not much written on testamentary succession under Swazi law and custom. Maybe it is because a person is under the control and supervision of lusendvo, so he may not be free to make a will. He can only dispose of his property inter vivos, but even then the consent of the lusendvo needs to be obtained.
C) The Constitutional Implications of the Swazi customary law on Intestacy and testate succession.
The inherent women discrimination of Swazi customary law violates the rights of women to be treated equally as provided by section 21 of the Constitution. In case of Marry Joyce Doo Aphane it the Supreme Court of Swaziland held provisions of the Deeds Registry Act No1/1968 which precluded women from registering immovable property under their name to be unconstitutional. The Doo Aphane judgment was received as a historic step towards the equality of women in the Swazi society. Swaziland is a party to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and other international human rights instruments that protects the rights of women. According to Maxine Langwenya,
‘adopting these instruments 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 to repeal discriminatory laws, even though they are now unconstitutional.’
The discrimination against women also violates women’s right to dignity as it exposes women to be treated without respect in contravention of the Constitution. Furthermore the forceful eviction of women and children and the vesting of property to male heirs of a deceased person in disregard of the wife and children of the deceased property owner violate the Constitution in so far as it deprives them their right to own property. The Constitution describes discrimination as a means to give different treatment to different persons attributable only or mainly to their respective descriptions by gender, age... this definition therefore demonstrates the prohibition of the unfair treatment that women and children face in Swaziland under the application of Swazi customary law on inheritance.
The Constitution further protects the rights to marry and found a family. These rights are reaffirmed by the provisions for that marriage shall be entered into only with the free and full consent of the intending spouses and that a family is a natural and fundamental unit of society and is entitled to protection by the state. This therefore means that the customary practice levirate violates the Constitution in so far as it exposes widows to forced marriages and deprives them their family rights. This further destroys the family unit by treating the woman with disrespect as she is given the same status as her children, in fact her male children are even better than her. This position results to the male heir disrespecting his mother and even evicting her from the family home.
The imposed marriage further violates the Constitutional rights of women to refuse to practice a custom which they don’t believe in. In many parts of Swaziland customary law is still dominant and the majority of Swazis that practice these custom condemn women who stand up against such imposed marriages and as a result most women in customary marriages resort to oblige with the customs. The wrath of Swazi customary law is also suffered by children who are not permitted to inherit at the preference of their elder brother. The Constitution protects children either born in or out of wedlock by ensuring their rights to be properly cared for and brought up by their parents. Swazi customary law does not permit children born out of wedlock to inherit from the estates of their late parents.
Further the selection of an heir who is a relative of the deceased husband affects the welfare of the deceased’s children as such heir may decide to keep the estate for himself. Moreover if the widow is not entrusted with the estate of her late husband especially the homestead, it becomes impractical for her to provide for her children. For example in some instances the deceased may leave cattle behind which he used to pay children’s school fees and these ends up being taken by the heir who does not allow the widow to sell them for her children’s welfare.
The Constitution also abolishes the status of illegitimacy of children hence the custom of disinheriting such children is unconstitutional and should be avoided. Apart from protecting the rights of children, the Constitution also protects the rights of spouses by providing for the reasonable provision for surviving spouses out of the estates of their late spouses. This applies even in customary marriages regardless of whether the deceased made a will or not. These rights however cannot be realized by women without Parliament having passed laws to make these effective. To that end, the constitution obliges Parliament to enact laws regulating property rights of spouses including rights of common husband and wife and such must be done as reasonable as practicable. The same applies with children who must have a reasonable provision out of the estates of their parents.
Many laws and customs continue to exist in Swaziland in spite of their clear inconsistency with the Constitution and the international treaties ratified by Swaziland. Such laws must be repealed and such customs must be abandoned. Parliament must take action to repeal the existing discriminatory provisions regulating inheritance, particularly in the intestate succession laws and the administration of estates, and replace them with laws that provide women with equal rights as guaranteed in the Constitution and the various international treaties. Parliament must further pass laws that will give effect to the ‘reasonable provision’ clause as provided by the Constitution and further speed up the promulgation of the Deeds Registry Act that gives women married in community of property the right to register immovable property in their names.
The two most important aspects of the proposed legislative provisions on inheritance shares are; (1) that the surviving spouse inherit explicitly, by statute the marital home upon the death of a spouse, and (2) that the remainder of the deceased’s estate devolve half to the surviving spouse and half to the children (to be shared equally among them). These practices have already been adopted by various countries in Africa. For example, South Africa has the Intestate Succession Act No81 of 1987 which covers both civil and customary marriages. Also in South Africa the Courts in the cases of Bhe and Others v Magistrate, Khayelitsha and Others 2004 (1) BCLR 27 (C) and Shibi v Sithole and Others Unreported case no 729/01 (TPD) have ruled that the provisions of customary law which exclude females from inheriting from an intestate estate were inconsistent with the Constitution.
The Intestate Succession Act must be amended to guarantee all married women and children the right to remain in their marital home after the death of a husband regardless of the type of marriage entered into. In addition, when a spouse dies, it is essential that the surviving spouse be entitled to half of the deceased’s estate, leaving the remaining half to be divided among the children. Further, widows (and widowers) must be granted the automatic right to both control and administer the estate of their deceased spouses under the Administration of Estates Act. Without these guarantees, women are all too vulnerable to property grabbing and forcible eviction.
In facilitating the suggested reforms, Swaziland must create and implement programmes that will promote the rights of women in general and further ensure that inheritance rights of both women and children are protected. Furthermore, women whose properties have been forcefully taken by their relatives should be assisted to access the courts for redress. This can be done by establishing a legal unit in the Social Welfare department that will deal with such issues or permit lawyers from Non-governmental Organizations to assist victims in bringing their cases before court. This can also ensure strategic litigation on laws and customs that violate the Constitution in order to influence reforms.
Securing the inheritance rights of women and children requires a collaborative effort from both human rights advocates and traditional leaders hence the need for civic education on these issues cannot be over-emphasized. With this comes the political will to speed up the process of legislation and enforcement which rests with the government and parliament. If Swaziland could ratify 30 international instruments in one week then it could take one day to pass a legislation protecting the inheritance rights of women and children.
- Constitution of the Kingdom of Swaziland Act, 2005.
- Administration of Estates Act
- Intestate Succession Act
- Bhe and Others v Magistrate, Khayelitsha and Others 2004 (1) BCLR 27 (C).
- Marry Joyce Doo Aphane v Registrar of Deeds Supreme Court case No12. Of 2010.
- Shibi v Sithole and Others Unreported case no 729/01 (TPD).
- Corbett M, Hofmeyr G, Kahn E, The Law of Succession in South Africa, 2nd Edition Juta & Co Cape Town South Africa 2008.
- Watch the courts dance: Litigating the Right to Non-Discrimination on the Grounds of Sex: Equal Rights Review volume 4(2009) page 26.
REPORTS & PAPERS
- South African Law Reform Commission: Report on the Customary Law of Succession , Pretoria South Africa ,2004
- The Promise for a new Constitution- Achieving Equal Inheritance Rights for Women in Swaziland: A human Rights Report and Proposed Legislation, Georgetown Journal of International Law, Georgetown University Law Centre, Volume 40, London 2009.
- Centre on Housing Rights and Evictions Report; A place to live; Women’s Inheritance Rights in Africa, 2005.
ARTICLES & PAPERS
- Simelane N.N, Succession under Swazi Law and Custom, University of Swaziland 1994.
- Langwenya M; Historic Step Towards the Equality of Women; Analysis of the Marry Joyce Doo Aphane v Registrar of Deeds, Open Debate OSISA Johannesburg 2011.
 Corbett, Hofmeyr & Kahn, The Law of Succession in South Africa at page 5.
 Simelane N.N, Succession under Swazi Law and Custom, University of Swaziland 1994.
 As above.
 The Constitution of the Kingdom of Swaziland Act, 2005.
 The Promise for a new Constitution- Achieving Equal Inheritance Rights for Women in Swaziland: A human Rights Report and Proposed Legislation, Georgetown University Law Centre at page 447.
 As above.
 Simelane No2 above.
 Section 21 and 28 of the Constitution of the Kingdom of Swaziland Act, 2005.
 Simelane No2 above.
 As Simelane No2 above at page 40.
 As above.
 As No 4 above.
 Simelane No2 above at page
 Marry Joyce Doo Aphane v Registrar of Deeds Supreme Court case No12. Of 2010.
Langwenya M; Historic Step Towards the Equality of Women; Analysis of the Marry Joyce Doo Aphane v Registrar of Deeds Civil Case No 383/2009 at page 2.
 Swaziland ratified CEDAW a year before the adoption of the Constitution which also protects these rights.
 As No 13 above.
 Section 18 of the Constitution protects the right to dignity.
 Section 19 of the Constitution protects the right to property.
 Section 20(3).
 Section 27.
 Section 27 (2) and (3).
 Centre on Housing Rights and Evictions report 2005; A place to live; Women’s Inheritance Rights in Africa, page 26.
 Section 28(3) of the Constitution.
 A study by UNDP cited in the Georgetown University Journal above.
 Section 31 of the Constitution.
 Section 34.
 Section 34(2).
 Section 29(7)(b).
 GeorgeTown University Report No4 above at page.
 As above at page 468.
 As above at page 469.
 As above.
 In September 2012 Swaziland deposited 30 international instruments with the United Nations which were ratified by the country following a one week consultative meeting during the peoples parliament (sibaya). www.sz.one.un.org/index.php/142-home/un-in0swaziland/268-un-instruments (last visited 23 March 2013).