Customary law, at its best, is said to ensure that orphans and widows are cared for. But this is not always the case. That, at least, has been the experience of an elderly widow in Eswatini. Though she married into a royal household, when her husband died her circumstances became dire. She found her brother-in-law had his eye on her late husband’s property and he would not even allow her to construct a new outside toilet for her homestead. Now, however, three judges of Eswatini’s supreme court have granted her an interim interdict against her brother-in-law. Pending the resolution of their dispute by the traditional authorities, the brother-in-law must allow her to build the toilet and must restore possession of a field she was given on her marriage. He must also re-fence the field after he had his staff tear down the barbed wire fence that she was installing to protect herself.
Ethel Dlamini’s dispute with her brother-in-law, like many court cases, not only resolves a particular legal dispute, but also throws light on the real-life experience of people you might not otherwise come across.
In 1977 Dlamini, born Ethel Gule, married Prince Lomasasha under Siswati customary law. From the day of that marriage, which eventually produced five children, she has lived at the chiefly homestead at Qomintaba. Her father-in-law, Prince Tsekwane, gave her a field in which she could grow crops which she did until 2015. In all that time she had peaceful and undisturbed possession of the field she had been gifted.
The homestead area was fenced with access through a gate. Every morning that gate was opened so that members of the local community could enter.
After her husband died, his brother, Prince Chief Gasa waNgwane, was installed as chief of the area. He built his own chiefly homestead across the way from where she was living, and this area became the new centre where community meetings are now held.
As part of his changes, he removed the cattle kraal from the homestead of his late brother, as well as the roof of the main hut. He ploughed the field which had been given to his sister-in-law without informing her or asking her consent.
She is now the only person left at the old homestead, except that her children or grandchildren sometimes come to stay with her.
But she has to maintain the place, and when the old outside toilet filled up and became a health hazard, she began construction of a new one close to the old homestead where she lives.
According to her court papers, her brother-in-law, again without consultation, sent his men to fill the hole that had been dug for the new toilet. As she sees the situation, all of these events are indicators that he is intent on driving her out of her home.
She feels afraid because she now lives in a place that is ‘neither safe nor protected’. Donkeys, goats and cattle roam around the homestead, uncontrolled, and she feels afraid of human intruders as well.
In response to their mother’s plight her children began to fence the homestead to protect her and her property. But her brother-in-law immediately served her with a court order preventing her from continuing with the fencing of her home.
That led her to lodge a complaint against her brother-in-law with the regional administrator. The quarrel must now be decided by the traditional structures according to prevailing customary law, although it is not yet clear when the decision will be delivered.
In the meantime, she has been to the high court and, when her application was dismissed, to the supreme court whose judges have now given their decision.
Basically, the supreme court needed to resolve two main legal issues.
Could the judges grant her application for an interim order while the decision of the regional administrator was pending? The application was for the brother-in-law to be ordered to stop preventing her from fencing the property of the old homestead and to be interdicted from preventing her from constructing a new toilet where she lives. She also wanted the court to order that he re-install the barbed wire fence around the field she has regarded as hers since her marriage, and to order that he restore the use of the field to her.
The high court had found it could not do so because, even couched as an interim order, that would usurp the powers of the regional administrator. Would the supreme court agree with that approach?
The second major problem for the supreme court to consider was whether to condone the late filing of the record in the appeal, particularly since her lawyers had not applied for an extension of time.
On the second question, the supreme court said the lawyers were clearly at fault. They brought the application ‘in defiance of the rules of this court’. There were many authorities on what had to be done in applying for an extension of time, but these were all ignored.
However, since the applicant was ‘an elderly widow living on her own in a rural homestead’ and it appeared her health and safety were at stake, not to mention significant infringements of her dignity, the court decided, rather reluctantly, that it would allow the application for condonation in the interests of justice. Since the attorney involved was ‘cavalier’ in his disregard for the rules, he would be penalised via a suitable costs order.
What about the other dispute – whether to grant her interim application?
Her brother-in-law opposed the appeal. He argued that she would have the use of a shared toilet within his new homestead. Moreover, a ‘joint perimeter fence’ was to be constructed around both the old and the new homesteads, while the fields were to be shared. Thus, no ‘irreparable harm’ would be suffered by his sister-in-law if she were to wait for the traditional authorities to give their ruling.
The supreme court judges however, took a different view. If the fencing were to be erected, and she were allowed to construct a new toilet it would be ‘a simple task’ to take down the fence and fill in the toilet should the traditional authorities find against her.
In addition, given her age and that she was living alone in a rural area, she was entitled to protect herself and her property from human or animal intruders. Moreover, she was entitled to protection of her dignity ‘and being forced to use a communal toilet is a violation of this right’.
She had been deprived ‘in an apparent arbitrary fashion’ of the fields given to her by her father-in-law. While the outcome of the regional administrator was awaited, she was being ‘forced to live in insanitary and degrading conditions’.
Her appeal was thus upheld, with her brother-in-law ordered not to prevent her from building a new toilet at the old homestead. Further, he must restore the field he took from her and re-install the barbed wire fence around it.