MBABANE – The High Court, constituted as a Constitutional Court, has condemned Government Spokesperson Alpheous Nxumalo’s claim that Eswatini customary law permits men to have sex with girls of any age.
Judge Mumcy Dlamini, sitting with Judge Zonke Magagula and Judge Bongani Dlamini, described Nxumalo’s claim as atrocious. The court made these pronouncements yesterday when dismissing Nxumalo’s urgent application seeking a range of orders from the High Court, including the setting aside of the charges and criminal proceedings against him, a declaration that the SODV Act is unconstitutional and a stay of his prosecution pending the outcome of his constitutional application.
Nxumalo has been charged with two counts under the SODV Act following allegations that he engaged in unlawful sexual acts with a 17-year-old and an 18-year-old girl. The offences were reportedly committed in 2023 to 2024 in Manzini. His trial before Manzini Principal Magistrate David Khumalo had been stayed pending finalisation of the constitutional challenge of the SODV Act.
Handing down the unanimous judgment yesterday, Judge Mumcy said Nxumalo not only failed to demonstrate how the SODV Act altered any valid customary law, but also advanced an argument that no civilised society could entertain that under Eswatini custom there is no age limit for sexual intercourse with girls. “This is inconceivable. How any society could expose its girls to sexual intercourse without any age limitation is beyond comprehension. In this court, it stands to be thrown out of the window root and branch.”
The court stated that Nxumalo must demonstrate how the Act had amended or altered the customary law to his disadvantage or exceptional prejudice. He listed a number of modifications and changes he said the SODV Act had introduced into law. They include the criminalisation of the custom of kwendzisa for girls below 18 years and limitation of sexual activity below the age of 18, among others. He also mentioned redefining the crime of rape and widening some to include women as potential rapists and men as potential survivors and criminalising the custom of kukhuzela and introducing the crime of stalking.
The court said there must be a correlation between the customary law as amended by the SODV Act and the charges Nxumalo is facing for him to establish his right to bring the application. “He cannot refer to any customary law which does not correspond to the charge,” said Judge Mumcy.
Judge Mumcy said: “Now, juxtapose the customary laws that the applicant has listed as having been amended to his disadvantage by the Act to the charges he is facing. Is there a comparison?”
Commencing with the first customary practice, kwendzisa - to betroth, according to the court, this stands to be struck out as it does not relate to the charges Nxumalo is facing, if it is criminalised at all.
Judge Mumcy said Nxumalo has no direct interest in this customary practice and he did not refer to any section in the Act criminalising this custom.
The court mentioned that the second is the limitation of sexual activity below the age of 18.
The court noted that Count 1 relates to Nxumalo allegedly having unlawful sexual intercourse with a minor below the age of 18. The complainant is said to have been 17 years old at the time of the commission of the offence.
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Court rules Nxumalo lacked legal standing
MBABANE – The court found that Alpheous Nxumalo failed to demonstrate that he had the right standing to bring the application to court.
The judgment reiterated the long-held principle that the actio popularis (a general public interest action) is obsolete. To possess standing, said the court, an individual must establish an injury caused by the challenged Act of Parliament, which directly affects him even in the face of the invalidity of the impugned Act. “It is not sufficient that he must establish that the Act is invalid,” said Judge Mumcy Dlamini.
The judgment states that an applicant must show that he sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with the people generally.
Nxumalo’s argument was that the SODV Act was enacted without adhering to constitutional provisions, specifically Section 115, as it makes ‘drastical inroads into Eswatini Law and Custom’. The court outlined a three-step burden of proof required for the applicant to establish a direct and substantial interest based on an alleged amendment to customary law: The applicant must first clearly define the customary law in question, he must show the specific right they enjoyed under that customary law before the impugned Act and demonstrate precisely how the Act has amended or altered the customary law to their disadvantage or exceptional prejudice.
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... contemplates appeal
MBABANE – Government Spokesperson Alpheous Nxumalo is contemplating filing an appeal.
Nxumalo, whose challenge of the constitutionality of the SODV Act was dismissed yesterday, is yet to decide whether or not to file an appeal. According to his attorney, he will make decision at the appropriate time and take it from there.
Meanwhile, Nxumalo will be in the Industrial Court for his case against government after he instituted proceedings demanding the payment of his October and November salary.
The matter was supposed to be heard yesterday. However, it was postponed to Friday afternoon. When the parties were last in court, the proceedings were adjourned to allow them time to negotiate with a view of reaching an out-of-court settlement.
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... misinterpretation of Constitution
MBABANE – The court, in dismissing Alpheous Nxumalo’s application addressed his reported misinterpretation of Section 115 of the Constitution, which governs legislation affecting matters regulated by Eswatini Law and Custom.
The judgment put particular emphasis on the procedural steps required for engaging the Council-of-Chiefs when a Bill touches upon these traditional areas. The dispute centred on whether the Bill, which later became the SODV Act, ought to have been referred to the Council-of-Chiefs as mandated by Section 115. The court determined that Nxumalo had fundamentally misinterpreted the initial trigger for this referral.
The judgment quoted Section 115(1), which states: “A Bill (including any amendment to a Bill) which, in the opinion of the presiding officer would affect or alter any matter regulated in terms of this section shall only be introduced in Senate.”
The court said this provision establishes that the process is initiated by the presiding officer of Senate forming a definitive opinion that the Bill would affect or alter a matter regulated by Eswatini Law and Custom.
The judgment pointed out that Nxumalo failed to demonstrate that the presiding officer had, in fact, formed such an opinion regarding the SODV Bill. Subsection 115(2) outlines the precise role of the Council-of-Chiefs once the presiding officer has formed the requisite opinion and the Bill has been duly introduced in Senate. It states that Senate ‘shall not proceed to the second reading of the Bill until— (a) a copy of that Bill has been sent by the President to the Council of Chiefs, and (b) a period of 60 days has lapsed since the copy was sent to the council in terms of paragraph (a)’.
The court clarified that Nxumalo’s contention that the presiding officer ought to have referred the Bill to the Council-of-Chiefs misrepresents the statutory requirement.
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Civil groups welcome court’s SODV ruling
MBABANE – Civil society groups have reacted to the High Court’s dismissal of Government Spokesperson Alpheous Nxumalo’s urgent application challenging the SODV Act of 2018.
Kwakha Indvodza and One Billion Rising Eswatini were among the organisations approached for comment on their position regarding the court’s decision and its broader impact on the protection of survivors of abuse.
Kwakha Indvodza Director, Sonic Dlamini, said the dismissal reaffirmed the strength and clarity of the SODV Act, which he described as the country’s first comprehensive legal framework for addressing sexual offences and domestic violence.
Dlamini said before the enactment of the SODV Act in 2018, cases of sexual abuse and domestic violence were prosecuted under outdated legislation such as the Girls and Women’s Protection Act of 1920, the Crimes Act of 1889 and Common Law, all of which he said failed to protect vulnerable groups including minors, people with disabilities and other socially marginalised persons.
He said these older legal instruments also did not meet international human rights standards and were often susceptible to misinterpretation or the misuse of cultural practices.
“The dismissal of the government spokesperson’s application is testament to the comprehensiveness of the SODV Act. It does not leave room for mistakes or misguided interpretations. SODV perfectly aligns with UN articles on human beings being free and equal in dignity and rights,” said Dlamini. He added that the Act allows for proper legal scrutiny of abuse arising from power dynamics, including the exploitation of young girls and boys under the guise of culture, influence or intimidation.
*Full article available in our publication
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