BY SIFISO NHLABATSI
MBABANE – The Judicial Commission of Inquiry into allegations of impropriety, maladministration and abuse of power at the Office of the Master of the High Court has drawn a clear distinction between Inkhosana and Indlalifa, warning against applying a conventional estate-distribution approach to deceased estates governed by siSwati law and custom.
The distinction emerges against the backdrop of a growing push for the Master of the High Court to also assume responsibility for administering customary estates, despite Section 68 of the Administration of Estates Act of 1902 excluding customary estates from the Master’s responsibility.
According to the Commission’s report, the issue presents a significant challenge because Eswatini operates a dual legal system in which both common law and siSwati law and custom form part of the country’s legal framework.
The report states that while the law requires the death of every person in the country to be reported at the Master’s Office, it has not abolished siSwati law and custom. Instead, Section 252(2) of the Constitution recognises unwritten siSwati law and custom as part of the law of Eswatini.
The Commission notes that under customary law there is generally no formal distribution of a deceased person’s assets in the same manner as under the statutory system.
“Under siSwati custom there is no office of Master or its equivalent responsible for managing with a view to distributing deceased’s estates in the formal sense,” the report states.
The Commission further observes that the proposed move towards having the Master administer customary estates requires careful consideration, particularly because Parliament has not yet enacted legislation contemplated under Section 252(4) of the Constitution.
That provision calls for legislation dealing with the proof and pleading of customary law, the manner in which custom may be recognised and enforced, and the resolution of conflicts between customs or personal laws.
“Until this subsection (4) is duly attended to by Parliament, it would be hard for the Master to entertain customary law estates as expected,” the Commission states.
The report says that, for the time being, customary estates must be administered according to custom under the authority of umndeni, the family unit, and lusendvo, the family council.
It is within this customary framework that the Commission explains the role of the Inkhosana, emphasising that the position should not be confused with that of an heir who takes the deceased’s property for personal benefit.
The report states that the concept of Inkhosanaship is a form of trusteeship in which the deceased estate is left under the oversight of an heir nominated as Inkhosana, either by the deceased or according to customary practice.
“Inkhosana is not Indlalifa,” the Commission states.
According to the report, the Inkhosana, described as a customary trustee or estate overseer, manages the deceased’s estate for the benefit of the family rather than for personal gain.
The estate may include livestock, and the Inkhosana may be required to account for its management or even be removed by the next of kin if he embezzles the estate.
The Commission says the Inkhosana assumes the position of the deceased with the purpose of ensuring that members of the family are taken care of according to their circumstances.
The report also questions the use of the term Indlalifa, stating that it appears to derive from the Bible and may not traditionally have formed part of siSwati custom.
“It seems that the word Indlalifa derives from the Bible and is as such unknown to emaSwati,” the report states.
It adds that the word appears to signify an heir who takes over the property of a deceased parent or relative for personal benefit. The Commission says that if this understanding is correct, Indlalifa is not part of siSwati custom unless it is understood to mean the same thing as Inkhosana.
The Commission cites a real-life deceased estate dispute reported by the late Musa Hlophe in the Times of Eswatini SUNDAY on March 22, 2020, as an illustration of the customary role of an Inkhosana.
The case involved the estate of a woman identified as Make Nxumalo, whose alleged wishes were that her last-born son, “G.N.”, should take over her house and fields.
However, according to the account cited in the report, the son was not intended to own the property for his personal benefit.
Instead, he was expected to use the property for the benefit of all her children and orphaned grandchildren.
“That is the siSwati way!” the Commission states.
The Commission interprets the arrangement as an example of a deceased matriarch appointing her last-born son as Inkhosana through what appeared to be an unwritten will witnessed by her elder sister and younger brother.
The report says this illustrates the distinction between an Inkhosana, who oversees property for the benefit of the family, and an Indlalifa, understood as someone who would take property for personal benefit.
The Commission further states that Inkhosana and Lisokanchanti are traditionally male descendants of the deceased and argues that this is how the practice should continue.
Where there is no male heir, the report says siSwati law and custom has mechanisms to address the situation.
The issue has become particularly significant because of the growing call for the Master’s Office to deal with customary estates, following developments including the judgment in Sicelo Mpanza NO and the proposed 2025 Bill.
The Commission says the Master would have to prepare the office adequately if it is ultimately expected to assume full responsibility for customary estates.
It also cautions that the customary structures of Inkhosana and Lisokanchanti should not be overlooked in any changes concerning the administration of customary estates.
The report links these structures to Section 60(10) of the Constitution, which directs the State to encourage the integration of appropriate customary values into national life and to ensure that suitable customary and cultural values are adapted and developed in response to the changing needs of society.
The Commission says these customary values largely rest on the traditional structures of umndeni and lusendvo, which it says remain at the heart of siSwati family life.
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