Alpheous’ SODV challenge matter set for next session

The High Court has indicated that a trial date in the constitutional challenge launched by former Government Spokesperson Alpheous Mfana Nxumalo will be set during the next session of the courts.

Nxumalo, who is facing rape charges involving two siblings aged 17 and 18, is challenging the constitutionality of the Sexual Offences and Domestic Violence (SODV) Act of 2018, under which he has been charged.
The matter, which has generated public interest since his arrest and subsequent release on bail earlier this year, has now reached a procedural milestone, with the judiciary indicating that the case is being prepared for trial.

This was disclosed yesterday by Nxumalo’s legal representative Khumbulani Msibi when he appeared before Judge Mumcy Dlamini.
It was disclosed that the matter would be placed on the roll in the next session, next month, during which a trial date will be allocated.

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In his constitutional application, Nxumalo seeks a court order declaring his prosecution under the SODV Act unlawful, irregular and unconstitutional.

He is also asking for the entire criminal proceedings against him to be set aside, pending determination of the constitutional issues he has raised.

Nxumalo’s argument is; the claim the SODV Act was enacted in violation of Section 115 of the Constitution, which requires that any bill introducing substantial changes to Swazi law and custom must be referred to the Council of Chiefs before it is debated and passed by Parliament.

Nxumalo alleged that both the Speaker of the House of Assembly and the President of the Senate failed to comply with this constitutional requirement when the SODV Bill was tabled. As a result, he contends that the legislation is invalid and by extension, the charges against him should fall away.

The court application lists a total of six respondents, including Principal Magistrate David Khumalo, the Director of Public Prosecutions (DPP), the Speaker of the House of Assembly, the President of the Senate, the Deputy Prime Minister and the Attorney General.

The former government spokesperson is also demanding the production of the Hansard or any official parliamentary record of the debates and procedures that led to the SODV Act’s enactment.
He argues that this documentation is critical in determining whether constitutional procedures were followed.

While the State has not yet publicly confirmed its stance on Nxumalo’s application, the respondents were directed to file opposing affidavits within the stipulated court timelines.
Nxumalo was granted bail on 15, April, in the sum of E50 000, of which E5 000 was paid in cash, with surety provided for the balance.

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