Identifier
Created
Classification
Origin
10MBABANE71
2010-02-24 12:11:00
UNCLASSIFIED
Embassy Mbabane
Cable title:  

PROPERTY LEGAL DECISION: VICTORY FOR SWAZI WOMEN AND

Tags:  PGOV PHUM WZ 
pdf how-to read a cable
VZCZCXRO2017
RR RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHMB #0071 0551211
ZNR UUUUU ZZH
R 241211Z FEB 10 ZDS
FM AMEMBASSY MBABANE
TO RUEHC/SECSTATE WASHDC 3935
INFO RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE
UNCLAS MBABANE 000071 

C O R R E C T E D C O P Y //TEXT-PARAGRPH 1//

SIPDIS

DEPT FOR AF/S FOR MAYA HARRIS, S/GAC FOR CHARLES HOLMES AND MICHELE
MOLONEY-KITTS

E.O. 12356: N/A
TAGS: PGOV PHUM WZ
SUBJECT: PROPERTY LEGAL DECISION: VICTORY FOR SWAZI WOMEN AND
JUDICIAL POWERS

UNCLAS MBABANE 000071

C O R R E C T E D C O P Y //TEXT-PARAGRPH 1//

SIPDIS

DEPT FOR AF/S FOR MAYA HARRIS, S/GAC FOR CHARLES HOLMES AND MICHELE
MOLONEY-KITTS

E.O. 12356: N/A
TAGS: PGOV PHUM WZ
SUBJECT: PROPERTY LEGAL DECISION: VICTORY FOR SWAZI WOMEN AND
JUDICIAL POWERS


1. In a High Court decision hailed as a victory for Swazi women,
Justice Qinisile Mabuza issued a ruling on February 23 to allow
married women to register and own property, overturning an
unconstitutional law. Equally significant, the court ruling
advanced the principle that courts have the right to alter
legislation in lieu of striking down an entire unconstitutional
law or section, especially in light of government inaction in
bringing existing legislation in line with the constitution.


2. Surprisingly, Acting Governor of the Ludzidzini Royal Residence
Timothy Velabo Mthethwa, an authority on Swazi Law and Tradition,
spoke in favor of the ruling. He told the media that "the country's
constitution, which is the supreme law by the Swazi people and for
the Swazi people, gives women the right to equality, and since the
court has ruled in favor of the wishes of the people, no one can
stand in the way of that judgment." Regarding whether women could
register Swazi Nation Land, not covered in this ruling, in their
names, he indicated that that debate is shifting due to the
constitution. Note: Swazi Nation Land is communally held and
controlled by chiefs in trust for the king and nation, in contrast
to the privately owned title deed land covered under this court
decision. End Note.


3. The High Court used the legal concept of "severing" and "reading
in" to amend section 16 of the Deeds Registry Act, striking out the
words "not" and "save" and adding the word "even" to permit married
women to register or receive immovable property, bonds, and other
real rights. This ruling covers women married "in community of
property," distinct from women married under Swazi Law and Tradition
or women who entered marriage with a prenuptial agreement.


4. COMMENT: Justice Qinisile's ruling constitutes an unusual
example of judicial activism for Swaziland. Although the decision
itself favors a political activist, it extends a right, albeit
rarely exercised, that already exists under Swazi customary law. We
do not expect that the government will appeal it. END COMMENT.

IRVING