THE High Court heard intense arguments over the question of when, under Swazi Law and Custom, a girl can legally consent to sexual intercourse.
This issue emerged during the constitutional challenge launched by Government Spokesperson Alpheous Mfana Nxumalo who is challenging the Sexual Offences and Domestic Violence (SODV) Act of 2018.
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The matter, which was presided over by Judges Mumcy Dlamini, Zonke Magagula, and Bongani Dlamini, featured an unusual exchange between the bench and Nxumalo’s legal representative, attorney Khumbulani Msibi, as he attempted to draw distinctions between customary and statutory age of consent provisions.
Judge Bongani Dlamini questioned whether Msibi was suggesting that Swazi Law and Custom allowed girls below the age of 18 to engage in sexual intercourse. “You are saying a female who is above 14 years… the issue that we are concerned with is whether you have been able to establish the custom.
“The other component is that you seem to be focusing on the aspect of age, what about the issue of consent?” the judge asked.
Judge Mumcy Dlamini followed up by putting the question more directly: “in terms of Swazi Law and Custom, can a female who is below the age of 18 engage or be forced to engage in sexual intercourse?”
Msibi responded by giving a historical account of how age of consent laws evolved during the colonial era. He argued that before 1920, men had broader rights to engage in sexual relations with young women.
“Before 1920, there was this law which came to limit the rights of men to have sexual relations with girls. It said all girls who are below 16, not anymore. Anybody who sleeps with a girl who is below 16 years is committing a crime. Then what happened in the 1920s those girls of 16, 17 and 18 were not included; it just said below 16 years,” Msibi submitted.
He argued that, based on the statute’s wording, sexual intercourse with girls aged 16 and above was permissible at that time if they consented. Judge Mumcy Dlamini pressed him to clarify whether this right was granted under Swazi Law and Custom or under statute. Msibi conceded that it was by statute.
The court also explored whether Swazi Law and Custom permits sex without consent. Judge Mumcy asked bluntly if customary law allowed people to sleep with girls forcefully, to which Msibi responded to the contrary. At one point, Msibi remarked that statutory law now deprived men of ‘dating young and able 17-year-olds,’ prompting laughter in the courtroom. Judge Mumcy interjected: “And they were dating them under Swazi Law and Custom?” She further asked: “You are saying in terms of Swazi Law and Custom you can date a girl who is 14 years?” Msibi maintained that there were no legal implications under customary law until the 1920 reforms.
The judges then repeatedly asked Msibi to define when, under Swazi Law and Custom, a girl can have sexual intercourse. He replied: “When she is ready.” Judge Bongani Dlamini pointed out that Msibi had still not answered the key question. Msibi finally stated: “Swazi Law and Custom places no limitations which I am aware of.”
This prompted Judge Mumcy to ask whether that meant a person could have sexual intercourse with a girl as young as 11 years old.
She also asked if the Girls and Women Protection Act had curtailed customary law, and Msibi agreed.
Msibi read from Nxumalo’s affidavit, in which the applicant stated: I have been charged with having sexual intercourse with two women of 17 and 18 years, respectively. “Having sexual relations with these women was permissible under Swazi Law and Custom, not that I admit to committing the same act.”
The judges repeatedly pushed for clarity on whether there was an age limit under custom. Msibi replied, “There is no age limit if she is ready.”
Judge Mumcy asked, “When is she ready, at what stage?”
Msibi replied, “When she can accommodate a man and be married.” The judges expressed concern at this response. Judge Mumcy remarked: “I am worried about the response that you admit that in Swazi Law and Custom you cannot rape, and in your reply you say kujumisa intfombi there is no age limit. “That is a scary statement. A two-year-old, huh? Is that why men do that, because there is no age limit? Because we have seen that in this country.”
The lawyer replied saying maybe the age limit in kujumisa was wrongly worded.
Msibi maintained that the customary framework simply did not specify an age limit, and suggested that Nxumalo, “as an old man who has been around,” could answer the questions about custom more precisely. Nxumalo argued that parliament passed the SODV Act without following the proper constitutional process, thereby making his prosecution unlawful.
