CJ MAKES NEW ORDER FOR ROYAL FAMILY ESTATES

MBABANE – Chief Justice (CJ) Michael Ramodibedi has ordered that estates of members of the royal family; princes, princess and chiefs must be distributed after consultation with the King’s Office.

The Practice Directive by the CJ dated September 24, 2014 has been copied to the Master of the High Court, Deputy Master of the High Court and Assistant Master of the High Court.

The CJ issued the Practice Directive after the judgment of the full bench where 17 children of the late Chief Sibengwane Ndzimandze were challenging the Estate Policy that was pronounced by Minister of Justice and Constitutional Affairs Sibusiso Shongwe.

They (children) later withdrew the application after the prime minister called a press conference to withdraw the minister’s policy.
The CJ, however, ordered that the matter should continue.
“The Chief Justice hereby issues the following Practice Directive which shall operate with immediate effect in the distribution of the deceased

estate: Henceforth, the estates of members of the Royal family, princes, princesses and chiefs duly appointed by His Majesty and Ingwenyama shall be distributed after consultation with the King’s Office,” reads part of the directive by the CJ.
The attention of the King’s Office has also been drawn to the Practice Directive by the CJ.

Regulate

The full bench which heard the contentious Estate Policy matter ruled that until Parliament had enacted legislation to regulate the property rights of spouse including common law husband and wife, the Master of the High Court was ordered and directed to distribute and liquidate estates in accordance with provisions of Section 34(1) of the Constitution of Swaziland by equating customary law marriages to civil law marriages in community of property.

Section 34(1) under the property rights of spouses provides that: “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 will or not and whether the spouses were married by civil or customary rites.”
The court also struck down the Intestate Succession Act of 1953 which provides that a surviving spouse was to be entitled to only a child’s share or only up to E1 200.

Government is appealing the judgment of the full bench and this means that the judgment would not be operational, at least for now, pending the appeal. The noting of an appeal automatically stays the execution of a judgment.

In the notice of appeal government stated that the court a quo (trial court) erred in law in holding and declaring that Section 2(3) of the Intestate Succession Act 1953 was inconsistent with Section 34 of the Constitution.

The State further contended that the court erred in law in holding that the Intestate Succession Act, 1953 applied to deceased estates regulated by Swazi Customary Law.

“The court a quo erred in law and in fact in holding/assuming that the Master of the High Court has a role to play in deceased estates regulated by customary law,” reads part of notice of appeal.

Erred

Government is also of the view that the trial court erred in law in conferring the Master of the High Court by implication with authority to determine and define ‘reasonable provision’ and ‘common law’ spouse in terms of Section 34 of the Constitution.
It was further averred by the State that the court erred in law and in fact in equating Swazi customary marriage with (civil) marriage out of community of property.

“The court a quo erred in law and in fact in holding that the Intestate Succession Act,1953, is discriminatory (in fact or in effect ) in that it makes a customary law widow to be a minor (and not a widower),” further reads the notice of appeal.

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