Women and Justice: Court: Supreme Court of Swaziland

Domestic Case Law

Zimele Samson Magagula v. Rex Supreme Court of Swaziland (2012)

Sexual violence and rape, Statutory rape or defilement

Appellant appealed his conviction of rape of a 4 year-old girl on the ground that the victim was the sole witness and her young age made her unreliable. The Supreme Court dismissed the appeal, finding that the victim’s consistent testimony of the rape and corroborating evidence from a medical examination was sufficient to uphold the verdict.

Mandla Mlondlozi Mendlula v. Rex Supreme Court of Swaziland (2013)

Femicide, Gender-based violence in general

Appellant was convicted of murdering his girlfriend and sentenced to 20 years imprisonment. Appellant appealed that the sentence was too harsh and severe and that it induced a sense of shock. Appellant presented mitigating factors that he was married with four minor children to support, the sole breadwinner, a first offender, and deserved to be given a second chance in life. The Supreme Court dismissed the appeal after considering the interest of society, the seriousness of the offense, the fact that the crime was premeditated, and the fact that the killing was gruesome and brutal. The Supreme Court further stated that sentence was fair “particularly in the upsurge in the killing of women as well as the need to impose deterrent sentences which would provide the safeguard against this onslaught.”

Somiso Mbhamali v. Rex Supreme Court of Swaziland (2013)

Femicide, Gender-based violence in general

Appellant was sentenced to 20 years imprisonment for the murder of his elderly aunt and appealed for 10 years of his sentence to be suspended because the appellant believed the victim was a witch and could kill him with the power of witchcraft. The Supreme Court upheld the original sentence and held that a perpetrator’s belief in witchcraft is not a mitigating factor when computing an appropriate sentence for murder. While a genuine belief in witchcraft could be treated as an extenuating circumstance in certain instances, murder committed because of a belief in witchcraft would not be mitigated by the belief.

Attorney General v. Titselo Dzadze Ndzimandze (Nee Hlophe) and Others Supreme Court of Swaziland (2014)

Property and inheritance rights

The Attorney General appealed the High Court’s ruling that section 2(3) of the Intestate Succession Act is unconstitutional. Under section 2 (3) of the Intestate Succession Act of 1953, a surviving wife is limited to a child’s share or E1200 (equivalent to U.S. $109.37), whichever is greater, of the estate. In contrast, section 34 (1) of the Constitution, entitles a surviving spouse to a “reasonable provision” of the estate, which could exceed Intestate Succession Act’s limitation. The Supreme Court upheld the High Court’s ruling, finding that the Act was overtaken by the Constitution in 2005. The Supreme Court noted that section 34 (1) of the Constitution was deliberately drafted to be gender neutral to ensure that husbands and wives were afforded the same rights and protections to remedy gender-specific limitations like those present in the Intestate Success Act.

Attorney General v. Aphane Supreme Court of Swaziland (2010)

Gender discrimination, Property and inheritance rights

Wife and husband married in community of property, where all property of either spouse is combined in a joint estate regardless of whether it was acquired before or during the marriage and regardless of how much each spouse contributed. Despite marrying in community of property, the couple was not permitted to register newly purchased land in both of their names because the wife had continued to use her maiden name. Section 16(3) of the Deeds Registry Act only permitted land to be registered by the husband and wife if the wife used her husband’s name; otherwise, the Act permits the land to be registered in the name of the husband only. Because the Section 16(3) of the Deeds Registry Act only affected the rights of wives and not husbands, the Supreme Court held that is invalid as it amounts to unfair discrimination and a violation of Section 20 and 28 of the Constitution.

Mbuso Blue Khumalo v. Rex Supreme Court of Swaziland (2012)

Domestic and intimate partner violence, Sexual violence and rape

Appellant was convicted of rape with aggravating factors and sentenced to 12 years imprisonment. The appellant appealed the conviction and sentence arguing that a rape was impossible in part because the victim was his girlfriend. The Supreme Court dismissed the appeal and increased the sentence to 18 years imprisonment after considering the violent nature of the rape. The Supreme Court stated that a woman’s consent “must be real and given prior to the sexual intercourse” and the Court no longer recognized irrevocable consent, where consent is presumed merely because the victim is the girlfriend or wife of the perpetrator.

R v. Mkhatshwa Supreme Court of Swaziland (2007)

Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of raping his 12 year old daughter and sentenced to 22 years imprisonment. The Court upheld the sentence in light of the heinous nature of rape as a crime and the importance of society sending a message of severe condemnation of the crime.