CONFUSION AT JUSTICE MINISTRY

MBABANE – Three sections in the Ministry of Justice and Constitutional Affairs are in disagreement regarding how assets for a deceased person’s estate should be distributed to beneficiaries.

The bone of contention is that women married under Swazi Law and Custom are not considered for inheritance of the estates of their late husbands.
Instead, there is only one heir who succeeds to the whole estate of the deceased and such person is chosen by family council (lusendvo).
It is said that the deceased’s eldest son becomes the heir when the deceased had one wife.

Siblings here do not benefit from the estate but can do so through the heir.
If the deceased had two or more wives, it is said that the family council chooses a principal wife and the oldest son of the principal wife or house will become the main heir.

On the other hand, the Constitution of the Kingdom of Swaziland seeks to abolish this cultural rite by making it a constitutional right for wives to have a share of their late husbands’ assets.
The Master of the High Court has sought advice from the Attorney General’s office after it (Master’s) had differed in opinion with the Ministry of Justice and Constitutional Affairs.

However, Sibusiso Shongwe, Minister of Justice and Constitutional Affairs has already taken a position, which he says he will communicate to the Master of the High Court at a meeting for officers in Siteki tomorrow.
The Times SUNDAY can reveal that the dispute over distribution of estates to beneficiaries emanated from diverse interpretations and understandings of Section 34 (1) (2) of the Constitution, by officers from the ministry’s three sections.

These are Master of the High Court, the Attorney General’s chambers and the ministry itself.
This newspaper has learnt that disagreements over the appropriate legal route to take when distributing a deceased’s assets started after the family of the late Chief Sibengwane Ndzimandze of KaShoba were involved in a dispute over the late chief’s assets.

Chief Sibengwane, a former senator, had five wives. Two of his wives died.

Dispute

His three wives are now embroiled in a dispute with the children of the two deceased wives.
A senior member of the Ndzimandze family said yesterday that a meeting would be held tomorrow to thrash out differences.
He did not want his name revealed pending tomorrow’s crisis meeting at the Master of the High Court. Chief Sibengwane is survived by about 20 children, according to the family’s senior member.

Meanwhile, it remains unclear what the minister will say tomorrow regarding the matter but sources says he advocates equal sharing of benefits for wives married under Swazi Law and Custom.
Section 34 (1) of the Constitution reads: “A surviving spouse is entitled to a reasonable provision out of the estate of the other spouse whether the other spouse died having made a valid will or not and whether the spouses were married by civil or customary rites.”

Section 34 (2) reads: “Parliament shall, as soon as practicable after the commencement of the Constitution, enact legislation regulating the property rights of spouses including common-law husband and wife.”

 In a memorandum dated June 4, 2014, Phumzile Masilela, the Master of the High Court, wrote to Attorney General Majahenkhaba Dlamini requesting advice on the constitutional provision on inheritance.

“We write to you in connection with the above section on property rights of spouses. We seek your legal advice on the distribution of deceased assets where the spouses were married under Swazi Law and Custom,” reads the memo issued by Masilela, the Master of the High Court.
“This office is also experiencing great difficulty interpreting common-law husband and wife.”

It can be said that Majahenkhaba Dlamini, the AG, delegated Thulasizwe Dlamini, Crown Counsel, to do research and give proper advice to the office of the Master of the High Court.
On June 16, 2014, Dlamini, the Crown Counsel, responded to the Master of the High Court’s legal question.
In his response, he said, Section 34 (1) was clearly changing the position of the Swazi customary law.

“The Constitution provides that, irrespective of whether the deceased leaves a will or not, whether married in terms of civil or customary rites, the surviving spouse is entitled to a reasonable share of the other spouse’s property,” advised Crown Counsel Dlamini.
He then said even though this constitutional provision was very commendable, it still needed to be unpacked by a statute that would address issues specifically. 

 “The main challenge is what constitutes a reasonable share, more especially in customary marriages where you may find that the deceased husband had more than one wife,” he said.
His final legal advice was that: “However, it would seem appropriate that in the meanwhile, where best applicable, the Master of the High Court must consider using the provisions of Section 2 of the Intestate Succession Act of 1953 as guidance in distributing assets to spouses even in the customary marriages.”

The crown counsel conceded that the Intestate Succession Act was an old piece of legislation, which regulated civil rights marriages.
He said the same law provided that marriages conducted in terms of African customs would be regulated in accordance with respective customary laws as read together with Section 68 of the Administration of Estates Act.

Interpreting common law ‘husband and wife’, he said this concept meant that a relationship would be converted to marriage after a number of stipulated years of cohabitation. 

Common law husbands and wives are live-in-lovers. “The position in Swaziland so far is that common law marriages are not legally recognised,” he said.
“The Constitution in Section 34 (2) provides that Parliament shall enact legislation that will regulate the property rights of spouses, including common law husbands and wife.” 
In an interview, Sibusiso Shongwe, Minister of Justice and Constitutional Affairs, said he had taken a stand, which officers in his ministry would know by tomorrow.

He said the position he had taken would be policy for the ministry.
“We need to know how we will work, going forward,” he said.

Shongwe said he would not pre-empt his position on the matter.
Majahenkhaba Dlamini, the AG, said there were issues that required Parliament’s direct input. He was not sure what should be done at the moment.

Perhaps, he said, there would be a need for the minister to intervene and give direction.
He said he was aware of the advice sought from his chambers by the Master of the High Court.
By yesterday, he had not seen the final advice given to the office of the Master of the High Court by the crown counsel delegated by him to research and give proper advice on the matter.

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