MBABANE – Alpheous Mfana Nxumalo says he remains committed to pursuing the constitutional question in his SODV challenge which is pending in the Supreme Court.
This is contained in heads of argument Nxumalo filed in the Supreme Court where he sought condonation for late filing of the record in the Sexual Offences and Domestic Violence Act constitutional challenge.
The application also seeks leave to file the record within a period determined by the court. Judge Mbutfo Mamba yesterday reserved judgment in the matter.
The application follows constitutional review proceedings instituted by Nxumalo in the High Court. He challenged the constitutionality of the Sexual Offences and Domestic Violence Act, arguing that it had not been promulgated in compliance with the manner and form prescribed by section 115 of the Constitution.
The High Court application was heard by a full bench on October 1, 2025. The full bench dismissed the application in a judgment delivered on December 10, 2025.
Nxumalo filed his notice of appeal on December 15, 2025, within the period prescribed by the Rules of the Supreme Court. However, the record of appeal was not filed within the prescribed period, resulting in the condonation application.
In his heads of argument, Nxumalo submitted that the delay should be considered against the circumstances surrounding the filing of the notice of appeal. The notice was filed on the day the Supreme Court closed for the year. According to the founding affidavit, the registrar’s notice concerning the closure did not specify a reopening date.
Nxumalo stated that, after consulting senior colleagues at the Bar and considering High Court practice, his counsel, Khumbulani Msibi of Magagula Attorneys, formed the view that a similar moratorium applied to the computation of time for filing the appeal record. The heads acknowledge that this interpretation may have been mistaken, but describe the explanation as full and honest.
Nxumal stated that he never instructed his attorneys to abandon the appeal and remains committed to pursuing the constitutional question. The heads say the issue also bears directly on criminal charges pending against him under the challenged legislation.
The respondents are Principal Magistrate David Khumalo, the director of public prosecutions, the Speaker of the House of Assembly, the President of the Senate, the Deputy Prime Minister and the attorney general.
The heads of argument state that condonation is not a formality and that an applicant must place sufficient material before the court to justify the exercise of the court’s discretion.
On the prospects of success, Nxumalo argued that his appeal raises whether the SODV Act was promulgated in accordance with Section 115 of the Constitution. He said that provision requires a bill introducing changes to the text of Swazi law and custom to be referred to the Council of Chiefs before its second reading.
According to the heads, it is common cause that the Act was not referred to the Council-of-Chiefs. The appeal also challenges the High Court’s finding that Nxumalo lacked legal standing despite his pending criminal prosecution under the Act and the provisions of section 2(2) of the Constitution.
The applicant submitted that the matter is of constitutional and public importance because it concerns legislation imposing criminal sanctions. He argued that no prejudice beyond ordinary inconvenience has been identified by the respondents. He has also tendered costs if the application is opposed unreasonably and unsuccessfully.
Meanwhile, the deputy prime minister and the attorney general have opposed Nxumalo’s application. The respondents, represented by Assistant Attorney General Mndeni Vilakati, asked the Supreme Court to declare Nxumalo’s appeal abandoned, strike it off the roll and award costs.
The State’s heads of argument dealt with two applications before the court. The first was Nxumalo’s application seeking condonation for the late filing of the record of appeal. The second was the attorney general’s application seeking an order declaring the appeal abandoned.
According to the heads of argument, the condonation application was opposed by the deputy prime minister and attorney general, while the application to deem the appeal abandoned was allegedly unopposed.
The respondents argued that the material facts are undisputed. The respondents calculated the delay at 13 court days. A key argument advanced by the respondents was that Nxumalo had allegedly failed to provide sufficient cause for the court to exercise its discretion in his favour.
The heads state that the court may excuse non-compliance with its rules where sufficient cause has been shown. The relevant considerations include the length of the delay, the reasons for the delay, prospects of success on appeal, prejudice and the interests of justice. These factors must be considered collectively, according to the State.
On the length of the delay, the respondents criticised Nxumalo for failing to state in his papers the number of days by which the record was filed late. Although his heads of argument described the delay as not inordinate, they do not quantify it.
The respondents also challenged Nxumalo’s explanation for the delay. According to the explanation, the period between the last day of the court session in one calendar year and the first day of the session in the following year should be excluded when calculating the period for filing the record.
The respondents further disputed the allegation that the registrar’s office does not accept court processes between December and January because it is closed.
They submit that Nxumalo has cited no authority establishing that the court’s recess excludes that period from the calculation of time.
The respondents further challenged the prospects of success of the proposed appeal. Nxumalo was charged with two counts involving unlawful sexual acts under various provisions of Section 3 of the Sexual Offences and Domestic Violence Act, 2018. His constitutional challenge concerns the manner in which the Act was passed by Parliament.
The respondents argued that Section 115 of the Constitution did not apply to the legislation in the circumstances relied upon by Nxumalo.
Section 115 regulates the legislative procedure where a Bill affects or alters matters regulated by Eswatini law and custom. Section 115(6) identifies matters including the status, powers or privileges of the Ingwenyama, Ndlovukazi or Umntfwanenkhosi Lomkhulu; traditional authorities; customary courts; Eswatini law and custom; Eswatini Nation Land; and cultural activities or organisations including Incwala, Umhlanga and Libutfo.
The respondents argued that the sexual offences with which Nxumalo is charged do not fall within any of the matters listed in section 115(6).
They stated that Nxumalo had not alleged that the offences fall within the scope of that provision. Consequently, the respondents submit that he has failed to establish prospects of success on appeal because he has not shown that another court could conclude that the sexual offences are matters contemplated by section 115(6).
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