Expansion of the definition of community of property in relation to the principle of stipulatio alteri: A case of widows of mine workers in Lesotho

Abstract

This work was written by a legal practitioner who before the research was finding difficulty in defending the rights of the widows of mine workers in the courts of law in Lesotho against the application of the common law principle of stipulatio alteri in respect to the benefits of employment of a deceased husband who had nominated a person other than the wife on the employment contract. She found that the courts and lawyers in Lesotho consistently uphold the claims of nominees with little or no regard to the large body of national and international laws that regulate and seek to protect the rights of spouses to their matrimonial property both before and after the dissolution of the marriage. As a result she realised that court decisions are repeatedly leaving widows destitute and vulnerable to multiple forms of depravations due to potentially stereotype influenced decisions of nomination of beneficiary. Alive to the provisions of various human rights instruments that advocate for the protection of widow’s inheritance rights to the estates of their husbands, she analysed the grounded realities of widows of mine workers in Lesotho. By using various methodologies that in connection with the women’s law methodology she realised that the dilemma faced by this women is a detrimental one which affects women including lawyers such as herself. This is because of the sensitivity of the issue as it involves moneys received after the death of a spouse. She realised that the difficulty from a personal perspective for a person to inquire or insist about such nomination and came to the conclusion that to achieve the wider protection where women are able to stand up for their rights, there is a need for wide spread campaigns aimed at eradicating the influence of stereotypes in the minds of women and men of all walks of life, the campaign should aim to empower women to be able to speak-up and for men to disregard the stereotypes. Further she noted that it is critical for the law enforcement agencies, particularly lawyers like herself to be equipped with in-depth understanding of international instruments to advance the widow’s rights. Also the courts should be judicially active and gender sensitive in advancing women’s rights as the Human Rights Watch puts it; when a woman’s property rights are violated, the consequence is not just that she loses assets. The repercussions reverberate throughout women’s lives often resulting in poverty, inhumane living conditions, and vulnerability to violence and disease for women and their dependents.