Eswatini’s highest court reverses itself; holds customary marriages are ‘lawful’

10 January 2024 · Carmel Rickard

It’s rare for any country’s apex court to reverse an earlier decision it had made and say it was wrongly decided. But Eswatini’s supreme court has recently done just that. In fact, it went even further, and declared that elements of two of its own decisions needed to be set aside as made in error. The key issue in the case was the status of marriages in Eswatini, made in terms of local customary law. Both the two earlier decisions had upheld the consequences of a 1902 colonial law, and concluded that such marriages were not ‘lawful’. The particular result of that finding in the new case was to question the jurisdiction of the master of the high court to deal with the deceased estate of someone married under customary law.

Read judgment

The three supreme court judges who decided this new case, delivered during the 2023 year-end break, knew they were making an important decision with ramifications for many in Eswatini: the very first sentence notes that the appeal ‘involves an issue of considerable public interest’, and summarises that issue as being ‘the jurisdiction of the master of the high court over estates of [citizens of Eswatini] who were married in accordance with customary law during their lifetime.’

Lying behind the facts summarised by the court seems to be a family dispute between two wives of Petros Maqoqa Mpanza.

One of them, Beatrice Mpanza, asked the high court to order that the master of the high court didn’t have jurisdiction to administer her husband’s estate. As a consequence of the order that she sought, she further wanted the executor, appointed by the master to wind up the estate, to be removed. Finally, she wanted the high court to hold that her husband’s written will was ‘irregular and/or invalid and of no force and effect.’

Doctrine of precedence

Another wife, Jabulile Lucy Mpanza, appointed as ‘executor testamentary’ in terms of her late husband’s will, disputed the high court action, while the attorney general (AG) appearing on behalf of the master of the high court, argued that the disputed section of the 1902 law on which the application was based, didn’t oust the jurisdiction of the master to deal with deceased estates of someone married under customary law.

The high court refused to grant the order that Beatrice Mapanza wanted, and, after she died while the matter was being finalised, the current executor of her estate took the matter to the supreme court on appeal.

Their argument was that the supreme court had delivered two earlier judgments that were in favour of their position, in 2016 and then, following that decision, in 2020. Given the doctrine of precedence, the high court ought to have followed these two judgments, and found in favour of Beatrice Mpanza’s position, they said.

Master’s jurisdiction ousted?

The other wife, Jabulile Mapanza, disagreed, while the AG said that the judgments in the earlier cases were wrong and that the supreme court should not follow them.

It was a significant issue, for at stake was the ‘lawfulness’ of all customary marriages when it came to the death of a spouse, with the crucial question being whether section 68 of the Administration of Estates Act ousts the jurisdiction of the master of the high court over estates of those married under customary law.

In its 2016 decision, the supreme court wrote that from section 68 it was apparent that customary marriages weren’t considered ‘lawful’ by the colonial government in Swaziland. ‘Only Africans who had abandoned their customs in favour of a European way of life, and, further, married by civil rites were considered to have a lawful marriage,’ the court wrote then.

‘Incongruent with current law’

The 2016 court also said that section 68 specifically provided that deceased estates of African spouses, married under custom, shall be administered ‘in terms of customary law’, and that the master didn’t have the power to ‘interfere’ in the administration of such an estate.

The court concluded, ‘Clearly, the master of the high court has no jurisdiction to administer deceased estates where spouses were married in terms of Swazi law and custom.’ That line of reasoning was followed by the supreme court in 2020.

But, said acting supreme court judge M J Manzini, writing for a unanimous court in the current matter, ‘I find the proposition that a marriage contracted in accordance with Eswatini law and custom is not a “lawful marriage” for the purposes of section 68, incongruent with current law.’

‘Gravity of the matter’

There was no reason given in the earlier decisions for why it should still be acceptable to consider customary marriages as not being lawful marriages, given Eswatini’s current legal framework, Manzini wrote. And, given the ‘gravity of the matter’ that the 2016 court was dealing with, and the decisions it eventually reached, it would have been ‘beneficial’ had that court analysed and given reasons for why it concluded that ‘customary law marriages should still be considered as not being “lawful marriages”.’

‘This was rather unfortunate,’ Manzini commented.

He explained the background to the two earlier supreme court decisions and concluded that in the earlier of the two, the comments about the lawfulness of customary law marriages and the jurisdiction of the master over deceased estates, had been obiter – comments merely made in passing by the court.

Issue ‘not adequately ventilated’ by earlier court

Given this history, he said it wasn’t surprising that the AG had urged the supreme court not to follow the earlier judgments.

After studying the two earlier decisions carefully, said Manzini, he had come to the view that the central issue of whether customary law marriages should be considered ‘lawful’ for purposes of section 68, had simply not been ‘adequately ventilated’ in either of the judgments.

The current law in Eswatini, however, clearly recognised customary marriages as valid and lawful, and it would be ‘odd and defy legal reason’ to hold that a customary law marriage was not lawful for purposes of section 68, but was valid and lawful for all other purposes.

Highest court allowed to ‘depart’ from earlier decisions if they were wrong

‘If that was the case or perception during the colonial era it cannot be so now, decades after the Marriage Act was passed, and the advent of the constitution in 2005. The colonial legacy ought to be discarded. I find no justification to perpetuate a view that undermines marriages contracted in accordance with Eswatini law and custom.’

He said that the constitution allowed the supreme court to ‘depart from its previous decisions when it appears that it was wrong’, and the high court’s decision in the Mpanza matter ‘cannot be faulted’. Manzini thus concluded that the master had jurisdiction over the estate of Petros Mpanza since he was ‘lawfully married and his estate is not excluded by section 68 from the jurisdiction of the master’.

As to the dispute over the validity of the will, the court concluded that the attack on its validity of ‘clearly misguided and without merit’ since the formalities which, it was claimed, hadn’t been observed, only applied when the testator couldn’t write and signed the document with a ‘mark’ – something that wasn’t the case here.

The court thus dismissed the appeal, with costs.

The supreme court’s decision resolves the question of the jurisdiction of the master in customary law marriages, but it does seem strange that the 1902 law continues to exist in Eswatini, with all its ambiguities and inappropriate language. Perhaps parliament should make a new year’s resolution to replace it.

Carmel Rickard

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