Buying Property In Swaziland

Buying Property In Swaziland

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MBABANE, 25 February 2010 (IRIN) - The High Court of Swaziland ruled on 23 February 2010 that some married women will be allowed to register property in their own name. It has been five years since the new Constitution granted women equal status, after centuries of being classified and treated as minors. Gender activists greeted the ruling as a small victory; despite the 2005 enactment of the Constitution, the second-class status of women in the country ruled by sub-Sahara's last absolute monarch, King Mswati III, has largely remained intact, denying women their inheritance rights and hobbling their progress as entrepreneurs and traders. \"I went to apply for a bank loan, and I was shocked to find that nothing has changed for women in this country. The loan was approved for my business, the bank was in support of my project, but the bank manager asked me, 'Where is your husband He must sign the loan forms,'\" Thabsile Masuku told IRIN. \"The bank did not recognize me as an adult who can enter into a contract. Legally, I am just a minor who is dependant on my husband. He is a good man but the situation is galling - I am not dependant on my husband, I am an independent person, but in Swaziland I don't exist,\" she said. A woman who declined to be identified told IRIN that a house she had built from the proceeds of her chicken-breeding business was sold by her husband without her knowledge. In Swaziland the husband remains the legal administrator of the marriage estate, to use as he likes - with or without his wife's knowledge or consent. Lack of political will Although the Constitution has granted women equal rights with men, in practice old laws still on the statute books continue to define gender relations. Observers blame a lack of political will for the slow progress in replacing laws that conflict with the Constitution. Lomcebo Dlamini, director of the Swaziland branch of Women in Law in Southern Africa - one of the legal bodies advising the Mswati-appointed Constitutional Review Commission during the 10 years it took to create the Constitution - told IRIN that gender equality could be partly achieved with a new law that defined modern marriages. \"The Marriage Act No. 47 of 1964 dates from the colonial era before Swaziland's independence [in 1968] and was really written with European residents in mind. Under the law, Swazis are assumed to be wed according to the traditional practice, which falls under the rules of Swazi Law and Custom that Swazis have always lived by,\" said Lomcebo Dlamini. When the Constitution took effect, it stated that all laws counter to the Constitution were null and void, yet a recent ruling by the High Court of Swaziland said government must be given time to revise or repeal all non-compliant laws, but failed to provide a timeframe. Activism has contributed to eroding gender-prejudiced legislation, and this week the High Court amended the 1968 Deeds Registry Act by making it possible for a Swazi woman to register immovable property, like a home or business, in her own name. Justice Qinisile Dlamini, the High Court's sole female judge, ruled that \"Section 151 (2) of the Constitution states that the High Court has jurisdiction to enforce fundamental human rights and freedoms guaranteed by (the Constitution). This includes the right to equality, which is guaranteed by section 20 and 28 of the Constitution.\" However, the ruling only applies to women married in a civil ceremony, and with a community of property agreement. About 80 percent of Swaziland's one million people live on communal Swazi Nation Land under customary law administered by chiefs. \"The marriage law must be changed because it assumes that all Swazi women are married the traditional way, which is really arranged marriages that unite two families. A woman is a minor under her parent's homestead until she goes to her husband's homestead, where she is also a minor. The law considers the husband the administrator of the marital property,\" said Lomcebo Dlamini. Polygamy Social historian Anita Magongo told IRIN: \"Traditional marriages are polygamous, which is one reason why a man is given administrative control. How do you divide administration of family property amongst any number of wives ... A traditional homestead is a communal affair, without any real property.\" The question of land ownership was also problematic. \"The land belongs to the King, and Swazis reside on a piece of land at the pleasure of their chief. There was no wage-earning or commerce, no material objects beyond blankets and pots, and no need for loans or savings - but that was then.\" With increasing numbers of women widowed by HIV/AIDS and in need of family property on which to live and raise their children, AIDS activists object to Swazi Law and Custom that results in the family of the deceased husband inheriting all marital property. Widows are often left destitute, but custom dictates that a widow must mourn for at least six months, during which she is forbidden to leave the home, preventing her from working to support her children and compounding the vulnerability of the family. \"A new Marriage Act is essential,\" said Lomcebo Dlamini. \"Fewer women are entering into traditional marriages, and it is wrong for the law to assume that 21st century Swazi women live as the Colonial-era lawmakers assumed they did long ago.\" jh/go/he

There is some ambiguity in approaches to land tenure in Swaziland. Some analyses distinguish, in addition to the two basic categories of land tenure, a third category, Crown land (Armstrong, 1988; Mushala, 1992). TDL tenure, currently accounting for 37 percent of the country, recognizes exclusive rights of access to a defined piece of land with titles held by individuals or corporate bodies. Owners of land titles can sell or use the land as collateral. The State can withdraw title in land required for national development only after making appropriate compensation. Crown land is distinguished as land owned by the government or a section of government (Mushala, 1992; Levin, 1987). Most of the urban areas of Swaziland are on Crown land for two reasons. First, urban property is predominantly government estate. Second, after the suspension of the independence constitution in 1973, all land rights were vested in the King. The Swaziland Government leases urban areas to individuals or institutions in the name of the King.

Labotsibeni, the Queen Regent from 1899 to 1921, levied funds from the people for the purpose of buying land back from white settlers. King Sobhuza II revived the programme in the 1940s. It was complemented by land made available by the British administration for rural settlement and the efforts of the Swazi Government after independence. In essence, postcolonial land policy has been aimed at reconciling modern land developments with existing customary land tenure procedures.

During the period of British rule in Swaziland the sanctity of private property in land was considered the basis for improved land utilization and improved productivity. The Independent State of Swaziland embraced this policy and avoided wholesale land dispossession. It was also recognized that ITF farms were a source of local employment, having provided about 50 percent of wage labour since 1980. About 75 percent of the farmland on title deed land is under freehold title and the remainder under concessionary title. Government policies towards this sector are based on laissez-faire principles.

The rural Swazi homestead (umuti) is the basic social unit. Swazis are patrilineal. A child belongs first and foremost to its father's lineage and clan. A wife and children are treated as constituting a \"house\" within the homestead, a division especially relevant to the allocation and inheritance of land and livestock as well as other property. A Swazi man remains the head of the group even in his prolonged absence. A woman by consequence of marriage is guaranteed rights to the means of livelihood through the umuti of her husband, which in turn belongs to a particular chiefdom subordinate to the King.

Ostensibly, land is owned by the man, and portions of it are allocated to his sons, but since such allocations are made only on marriage, fields are tilled by wives who control the disposal of their produce. The effect in practice is that the land is owned by women, whether married to the homestead head or to his sons or brothers (Ngubane, 1983). The right to receive family land is not determined by gender per se. If the head of the family (the father) dies, his property passes on either to his sons or to his wife (or wives). Theoretically, daughters have no claim to inheritance (Dlamini, 1989). It was always assumed that women would marry and therefore obtain access to land through their husbands. In contemporary Swazi society, the issue of women's right to inheritance has become controversial, but no reforms have addressed this issue. The division of landholdings through inheritance results in fragmentation of holdings, which is an increasingly serious problem.

In Swaziland, reliance on communal resources is declining. Under SNL tenure, rangelands, forests and grazing lands have been subjected to high levels of overgrazing and extensive soil erosion in many areas in recent years. The apparent breakdown of local common property management arrangements on SNL, as elsewhere in Africa, has been attributed to a variety of factors, including the following (Lawry, 1989):

The legal basis for Swazi Nation land can also be traced to the provisions of the Concession Partition Act of 1907. About one-third of Swaziland was set aside for exclusive occupation by the Swazis, under the control of the \"Paramount Chief\". The Swazis felt that this partition was imposed on them; it resulted in the loss of vast amounts of land, and they lodged a series of protests aimed at regaining the land. Strong opposition was directed against foreign ownership of most of the land in Swaziland and against the concept of private property, which many Swazis believed would leave a large proportion of the population landless. 59ce067264

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