Marital Power Finally Obliterated: The History of the Abolition of the Marital Power in Civil Marriages in Eswatini

Keywords: Women, Marital Power, Discrimination, Emancipation, Advocacy, Judicial Activism, Eswatini, Swaziland

Abstract

Women's subordination is not new in the world. As society became human rights conscious, many countries started abrogating or scrapping discriminatory laws and attitudes towards women, in particular married women. However, it has taken Eswatini more than 100 years to deal with the fact that the common law principle of marital power discriminates against women.

This paper traces the reception of marital power into the legal framework of Eswatini and how advocacy groups on women's rights and freedoms have opposed women's subordination, fortified by research. This paper presents a desktop review of selected literature and case laws touching on women's emancipation in Eswatini.

This research work is significant in that it adds to the body of knowledge by recording the origins of women's subjection to marital power and their eventual emancipation in the landmark case of Sacolo v Sacolo (1403/2016) [2019] SZHC 166 (30 August 2019).

 

GS67.png

References

Bibliography

Literature

Armstrong AKA and Nhlapo RT The Law and the Other Sex: The Legal Position of Women in Swaziland (Websters Mbabane 1985)

Hahlo HR The South African Law of Husband and Wife 5th ed (Juta Cape Town 1985)

Kuper H The Uniform of Colour: A Study of White-Black Relationships in Swaziland (Witwatersrand University Press Johannesburg, 1947)

Langwenya M Historic Step Towards Equality for Swazi Women: An Analysis of Mary Joyce Doo Aphane v Registrar of Deeds: unreported High Court case no 383/2009 (Open Society Initiative Johannesburg 2010)

MacFadden P “Gender, Power and Patriarchy” in Editors (eds) WLSA Changing Families, Changing Laws (Publisher City 1994) pages

Marwick AB The Swazi: An Ethnographic Account of the Natives of the Swaziland Protectorate (Frank Cass City 1966)

Van Hook MP and Ngwenya BN “The Majority Legal Status of Women in Southern Africa: Implications for Women and Families” 1996 Journal of Family & Economic Issues 1996

Nhlapo T Marriage and Divorce in Swazi Law and Custom (Websters Mbabane 1992)

Obituary: Hilda Kuper, 1911-92 1994 Africa: Journal of the International African Institute145-149

Semwal MM and Khosla S “Judicial Activism” 2008 The Indian Journal of Political Science 113-126

Wessels JW History of Roman-Dutch Law (Africa Book Company Grahamstown 1908)

Women and Law – Eswatini Customary Practices, the Laws and Risky Behaviours – a Concern for the Increased Prevalence and Vulnerability to HIV and AIDS Among Women and the Girl-Child: A Rights-Based Approach (Websters Mbabane 2008)

Women and Law – Eswatini Multiple Jeopardy: Domestic Violence and Women's Search for Justice in Swaziland (Websters Mbabane 2001)

Women and Law – Eswatini Family in Transition: The Experience of Women in Swaziland (Websters Mbabane 1998)

Women and Law – Eswatini Charting the Maze: Women in Pursuit of Justice in Swaziland (Websters Mbabane 2000)

Legislation

General Law and Administration Proclamation 4 of 1907

Constitution Act 001 of 2005 (Kingdom of Eswatini)

Marriage Act 47 of 1964

International Instruments

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (2003)

The Convention on the Elimination of All Discrimination Against Women (1981)

Case Law

Attorney-General v Mary Joyce Doo Aphane (unreported) Civil Appeal case 12/2010

Letsweletse Motshidie Mang v Attorney General (unreported) MAHGB -000591-16, 11th June 2019.

Makhosazane Eunice Sacolo (nee Dlamini) and Women and Law - Eswatini v Jukhi Justice Sacolo (unreported) (1403/16) 2019 SZHC (166)

Nombuyiselo Sihlongonyane v Mholi Sihlongonyane (unreported) SZHC Case No. 470/2013 A

List of abbreviations

RSA Republic of South Africa

HIV Human Immunodeficiency Virus

AIDS Acquired Immunodeficiency Syndrome

SZHC Swaziland High Court

Published
2020-12-08
How to Cite
MavundlaS. D., StrodeA., & DlaminiD. C. (2020). Marital Power Finally Obliterated: The History of the Abolition of the Marital Power in Civil Marriages in Eswatini. Potchefstroom Electronic Law Journal, 23, 1-19. https://doi.org/10.17159/1727-3781/2020/v23i0a7504
Section
Case Notes