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Swaziland: Woman Challenges Constitutionality of Property Ownership Laws in Court

(Aug. 14, 2009) It was reported on August 6, 2009, that a Swazi women's rights activist, Doo Aphane, had filed a legal action, in which she named the Swazi government as the defendant, challenging the constitutionality of laws that prevent women married in community of property from registering immovable property solely under their own names, thus making it impossible for them to own their own property. (Mantoe Phakathi, Government in Court over Property Rights, IPS, Aug. 6, 2009, available at

Swazi common law regards men married in community property as the administrators of the property. (Id.) In addition, Swazi law states:

Immovable property, bonds or other real rights shall not be transferred or ceded to, or registered in the name of, a woman married in community of property, save where such property, bonds or real rights are by law or by a condition of a bequest or donation excluded from community. (Deeds Registry Act No. 37 of 1968, ยง16(3), 6 SWAZILAND GOVERNMENT GAZETTE (Sept. 6, 1968) (official source).)

Aphane argues that both the Deeds Registry Act and the common law recognizing only men as the administrators of immovable property run counter to sections 20 and 28 of the Swaziland Constitution (providing for the equality of everyone before the law and guaranteeing the equality of women in political, economic, and social activities, respectively). (The Constitution of the Kingdom of Swaziland, Swaziland Prime Minister's Office portal, (official source) (last visited Aug. 10, 2009).)

Government representatives argue that the practice of forcing women married in community of property to use their husbands' names when registering property is not sanctioned by any law in Swaziland. In addition, the representatives argue that the court should limit its decision to the Aphane case and should not make a determination on the constitutionality of the laws that could have an effect on all women in Swaziland. Alternatively, should the court decide to rule on the constitutionality of the communal property laws, the representatives plead that it give the Swaziland Parliament an opportunity to amend the laws, thus avoiding any disruption in the buying and selling of property that the representatives believe would result from a court decision striking down the existing law as unconstitutional. (Phakathi, supra.)