Masinga v Director of Public Prosecutions and Others

                  

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                                                 CASE NO.  21/2007

 

In the matter between:

 

SKHUMBUZO MASINGA                                          APPLICANT

 

AND

 

DIRECTOR OF PUBLIC PROSECUTIONS   1^ST RESPONDENT

SWAZILANDGOVERNMENT                       2^ND RESPONDENT

ATTORNEY GENERAL                                   3^RD  RESPONDENT

 

 

 

Coram                                                                 OTA J.

 

For Applicant

 

For Defendant

 

 

 

 

 

 

I prefer to paraphrase this Judgment with the words of Baroness Helena Kenedy QC, Woman Activist and Chair of the British Council, published in Just Law (2004), where she declared

 

‘‘Law is the bedrock of a nation, it tells who we are, what we value…Almost nothing else has more impact on our lives.  The law is entangled with everyday existence, regulating our social relation, and business dealings, controlling conduct which could threaten our safety and security, establishing the rules by which we live.  It is the baseline’’

 

In my view, Law is the blood line of every nation.  The end of Law is Justice.  It is Justice that gives law meaning.  It is by yielding Justice that law is able to preserve order, peace and security of lives and property, make the society secure and stable, regulate relationships, regulate and shape the behaviour of citizens, safe guard expectations, function as a means of governance, a device for the distribution of resources and burdens, a mechanism for conflict resolution and a shield or refuge from misery, oppression and injustice.  Through the discharge of these functions the law has today assumed a dynamic role in the transformation and development of societies.  It has become an instrument of social change.  Governments are increasingly relying on the use of Law to promoting development.  The growing rule of the Law is now widely accepted and the danger of neglecting the legal dimension of development has been widely recognized.  Whatever plans of change or development are contemplated, these have to be introduced either through legislation or administrative fiat.  The administrative fiat is itself largely regulated by and subject to the controls of the Law.  As a nation we expect and hope for a truly united and truly democratic society, where there is security of life and property, equal opportunities, peaceful co-existence on the basis of mutual respect, respect for and strict observance of every citizen’s inalienable fundamental right.

 

The Kingdom of Swaziland is ruled by Law.  The rule of Law is guaranteed by the Constitution of The Kingdom of Swaziland Act No 001, 2005.  It is upon this instrument that the Applicant herein stands before us seeking redress.  His journey to this forum began on the 6^th of February, 2006, when he was arraigned before the High Court of Swaziland, charged with the crime of rape with aggravating factors. The Applicant was then 15 years of age.  On the 27^th of February, 2006, the Applicant was released to the custody of his Aunt.  He stood trial before the High Court  per M.C.B. Maphalala J, on the 6^th of October, 2010, whereat, he pleaded guilty and in consequence of which a statement of agreed facts was signed and tendered as evidence.  On the 14^th of February, 2011, the trial Court handed down its Judgment, wherein it relied on Section 185 (bis) (1) of the Criminal Procedure and Evidence Act (67/1938) as amended, to sentence the Applicant to nine (9) years imprisonment without an option of fine.

 

It is the above sentence and a dissatisfaction of same, that engendered the Applicant to commence the present application by way of Notice of Motion, filed on the 17^th of February, 2011, entreating the Court for the following orders:-

 

1. Dispensing with the Manner of Service and time limits prescribed in the Rules of the Honourable Court and hearing this matter as one of urgency.
2. Condoning the Applicant’s non-compliance with the said Rules of Court.
3. Declaring Section 185 (bis) (1) and Section 313 (1) and (2) of the Criminal Procedure and Evidence Act No. 67 of 1938 in so far as it applies to juvenile offenders inconsistent with Section 29 (2) read together with Section 18 (2) of the Constitution of The Kingdom of Swaziland Act No. 001 of 2005 and not applicable to Juvenile Offenders, and therefore unconstitutional.
4. Referring the matter to the trial Judge for re-sentencing in the light of the above declaration, being Criminal Trial No. 21/2007.
5. Cost of  suit
6. Further and / or alternative relief.

 

This application is founded on a 15 paragraph affidavit sworn to by the Applicant, to be found on pages 7 to 11 of the book of pleadings.  Attached thereto is annexure J, the Judgment of the 14^th of February, 2011.

It is on record that the 2^nd Respondent filed an Answering Affidavit of 9 paragraphs, sworn to by The Attorney General of the Kingdom of Swaziland, James M.  Dlamini (see pages 24 to 27 of book). 

 

The Respondents also filed a confirmatory affidavit of 8 paragraphs, sworn to by one Isaiah Mzuthini Ntshangase, described in that process as the Commissioner of His Majesty’s Correctional Services, to be found on pages 29 to 31 of the book.  Thereafter, the Applicant filed a Replying Affidavit of 7 paragraphs, sworn to by the Applicant’s Uncle, one Dumisani Dlamini (see pages 34 to 39 of the book).

 

When this matter served before us for argument on the 23^rd of March, 2011, the Applicant was represented by M. S. Dlamini with S Gumedze, whilst Senior Crown Counsel, M M Vilakati, appeared for the 2^nd and 3^rd Respondents respectively.  It is worthy of note that the Director of Public Prosecutions did not appear in Court nor did she participate in these proceedings. 

 

Be that as it may, I have carefully considered the totality of the Affidavits filed of record, the respective heads of argument, counsel’s oral submissions in Court, as well as, the authorities urged, and I will be making references to such of them as I deem expedient in the course of determining this matter.  I am however compelled at this juncture, to commend both sides to this contest, for the erudity, intellectualism and resource that went into their respective heads. They canvassed the issues thrown up by this application with brilliance and excellence, urging relevant materials upon the Court thus aiding it in the dispensation of Justice. They displayed candour, decorum and sportsmanship in Court, sparing the Court the very unpalatable atmosphere of acrimony imposed, when counsel draw daggers, insisting on points they ought not to insist on, thus spilling red blood, as it were.  They gallantly conceded points that they needed to concede and held onto their strong artilleries when occasion called for same.  In their gallantry, they demonstrated the true spirit and ethos of our noble and enviable profession, as elucidated  by Viscount Buckmaster in his speech biography entitled ‘‘ An Orator of Justice’’ which was recounted in “The Romance of The Law’’, which he delivered to the American Bar Association at Detroit in September 1925, when he said

 

‘‘Our profession is the greatest to which man’s energies can be called. We are servants in the administration of Justice. It is therefore a profound mistake to think that a Lawyer should be a man who by any device can secure victory in Law Courts for his clients. Every Lawyer down to the Youngest Junior ought to remember that he, in his small degree, is assisting in something more than merely settling a quarrel between two people. He is a Minister ofJustice’’

 

Similarly, in his eloquent address to the 5^th Commonwealth Law Conference in Edinburgh, Scotland in 1977, Sir Shridah Ramphal, Secretary-General of the Commonwealth, andformer Minister of Foreign Affairs and Justice of Guyana, an eminent Jurist in his own right, was appealing to professional colleagues like us in the Commonwealth, to place their talents at the Service of Social Justice and Social Change in both national and global context, when he said

 

‘‘Our Societies look to us as Community leaders, as opinion formers, as advisers, and as members of the profession with a belief  in Justice, not only for advice but also for practical leadership, not only for mere preservation of the status quo, but for making it worthy of survival, not for observance of rituals but for constructive innovation.’’

 

I commend both sides of Counsel for your conduct, sportsmanship, and above all, for your very scholarly and innovative assistance to the Court.  More grease to your elbows.

 

Now, the Applicant herein, as I have hereinbefore demonstrated, welds the most potent weapon in the land, which is the Constitution of the Kingdom of Swaziland.  The parties are concessa that the Applicant is entitled upon the facts and exigencies of this case, to rely on the provisions of the Constitution to approach the High Court for redress, and I agree with them.  I also agree with them that the Full Bench of the High Court of Swaziland has the jurisdiction to entertain and to determine this matter, irrespective of the fact that the bone of contention is the sentence imposed by a Court of equal status.  I am also in concert with them that the right of the Applicant to approach this court for redress, and the jurisdiction of this Court to sit as a constitutional court to entertain and determine this application, are statutorily derived from the Constitution itself.

 

I say this because, Chapter 111 of the Constitution embodies the Fundamental Rights and Freedoms of the Individual. Section 14 of the Constitution which falls under Chapter 111, by subsection 2 thereof, provides as follows;

 

‘‘  (2)  The fundamental rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, the Legislature and the Judiciary, and other organs or agencies of Government and, where applicable to them by all natural and legal persons, in Swaziland, and shall be enforceable by the Courts as provided in this Constitution’’

 

I agree entirely with Mr Vilakati when he submitted as follows, in paragraph 9 of the 2^nd Respondent’s heads of argument:-

 

‘‘…the import of Section 14 (2) is that the Judiciary is bound by Chapter 111 of the Constitution (‘‘the bill of rights’’ ) and hence Judicial Officers cannot impose a sentence that is incompatible with a right in the bill of rights.  Where a Judicial Officer does pass a sentence that contravenes a Constitutional right an aggrieved party has  a right to approach a competent forum forappropriate relief’’

 

Let me also add here, that to my mind, Section 14 (2) ante must be given a purpose interpretation to mean that Government has a duty to prevent violations and to respect, uphold and promote Human Rights.  The duty to respect entails the obligation to refrain from acts which would violate the rights, the duty to uphold can be understood as the duty to protect persons from acts which would impede the enjoyment of their rights, and the duty to promote means the duty to take measures such as provision of adequate redress and procedures of protection against human rights violations.  The duty to provide redress is the legal consequence for every wrongful act of Government.  Conduct of Government that can entail legal responsibility is any act of an organ of that Government, whether the organ exercises executive, legislative or judicial or any other functions. Whatever position it holds in the organization of Government, and whatever its character as an organ of Central Government. This means that any conduct, be it lawful or unlawful (ultra vires), be it act or omission, can constitute a violation of human rights to which a victim is entitled to redress:  The responsibility of government in this context was conveyed to all and sundry by the Supreme Court of Swaziland in the case of Swaziland National Ex-Mine Workers Association V The Minister of Education and Others, Appeal Case No. 2/2010, via the compelling remarks of Dr. Twum JA at paragraph 24, in the following terms:-

 

‘‘…My view is that the Judgment of Agyemang J was an eye opener to all Government or State Institutions and Government functionaries, that the Constitution will forever remain the beacon that will throw the searchlight on their official actions.  It is also my view that the Judgment of M.C.B. Maphalala J, was pragmatic and appropriate which will eventually secure the enforcement of Section 29 (6).  Those two Judgments in their respective way, helped to chart a new path towards Constitutional adjudication in this country’’.

 

 (See The Right to a Remedy and to Reparation for Gross Human Rights Violations, A Practitioners Guide, pages 28 and 29).

Now, Section 140 (1)of the Constitution vests the judicial power of The Kingdom of Swaziland in the Courts.  Section 14 (2) gives the Courts which are the competent fora, the mandate as provided in the Constitution, to enforce the fundamental Rights and freedoms of the individual.  It is in furtherance of this mandate that Section 35 (1) and (2) (a) of the Constitution provide as follows:

 

‘‘  35 (1) Where a person alleges that any of the foregoing provisions of the Chapter has been, is being or is likely to be contravened in relation to that person or a group of which that person is a member (or, in the case of a person detained, where any other person alleges such a contravention, in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.

1. The High Court shall have original jurisdiction:-
2. to hear and determine any application made in pursuance of subsection (1)’’

 

The litera legis of the foregoing legislation puts it beyond disputation, that not only is a person who alleges that his fundamental right is violated entitled to redress, but the High Court of the Kingdom of Swaziland has the original jurisdiction to provide that redress.

The right of an aggrieved person and the jurisdiction of the High Court to entertain this constitutional question pursuant to section 35 (1) (2) (a) have been judicially sanctioned.  A case in point is the case of Maharaj V A.G of Trinidad and Tobago (No. 2) (1979) 2 ALL ER670 at 675 G-J.  I prefer to call in aid this decision, because it is now an accepted rule of judicial interpretation, that a court can call in aid the jurisprudence of other jurisdictions with similar provisions, in the interpretation of its statutes or constitution.  This becomes more imperative in our situation due to the dearth of local case law on this subject matter, which is as a result of the relative young age of the Constitution itself. I expressed this selfsame view is my decision in Phumzile Myeza and Others V The Director of Public Prosecutions and Another, Case No. 928/2009 Judgment of the 28^th February 2011 (unreported), when it became necessary for me to have recourse to the interpretative criteria employed in the jurisprudence of other countries, with similar provisions, when interpreting the meaning of the phrase ‘‘reasonable time’’ as it appears in section 21 (1) of our Constitution.

 

Now, in the case of Maharaj V A.G of Trinidad and Tobago (2) (supra),  a judge of the High Court of Trinidad and Tobago made an order on the 17^th April 1975, convicting the Appellant, a barrister, to prison for seven days for contempt of Court. On the same day the Appellant applied Ex-parte by a motion to another High Court Judge claiming in purported pursuance of section 6 (a) of the Constitution of Trinidad and Tobago 1962, redress for alleged contravention of his right under section 1 (a) of the Constitution, not to be deprived of liberty except by due process of Law.  The redress claimed was, inter alia, an order of immediate release from prison pending final determination of the motion and damages for wrongful detention and false imprisonment against the Respondent, the Attorney General, as representative of the state.  The Judge ordered that the Appellant be released from prison forthwith.  On the substantive hearing of the motion, a third Judge (Scott J) dismissed the motion and ordered the Appellant to serve the remaining six days of his sentence, which he served.  Scott J’s ultimate ground for dismissing the motion was that the High Court had no jurisdiction under Section 6 to entertain the motion since to do so would in his view, amount to the exercise by one Judge of the High Court of an appellate jurisdiction over another judge of the High Court.

 

The Appellant appealed against that decision to the Court of Appeal.  Whilst that appeal abated, the Appellant, sought and obtained leave to appeal to the Judicial Committee of the Privy Council against the Committal Order of the 17^th of April, 1975.  On the 22^nd of July 1976, the Judicial Committee allowed that appeal on the ground that the Judge who made the committal order had failed to specify sufficiently the nature of the contempt charged against the Appellant before committing him to prison and held that in consequence, the committal order was invalid.  On the 29^th of April 1977, the Court of Appeal dismissed the appeal relating to the motion on the ground that, although a High Court Judge had jurisdiction under section 6 of the Constitution to grant the Appellant redress for contravention of his Constitutional right which resulted from something done by another High Court Judge acting in his judicial capacity, the failure of the Judge to inform the Appellant of the nature of the contempt charged did not  contravene his right under section 1(a) of the Constitution.

The Appellant again appealed to the Judicial Committee against that decision.  In striking down the decision of the Court of Appeal, the Judicial Committee had occasion to elucidate on  whether the High Court of Trinidad and Tobago had the jurisdiction to entertain the Appellants application which was premised on the provisions of section 6 (2) (a) of the Constitution of that country, a legislation which is in pari materia with our own section 35 (1) and (2),  The very illuminating pronouncement of the Court on this question, which appears on page 675, paragraph G-J, is apposite in these circumstances:-

 

‘‘Nevertheless, on the face of it the claim for redress for an alleged contravention of his Constitutional Rights under section 1 (a) of the Constitution fell within the original jurisdiction of the High Court under section 6 (2).  This claim does not involve any appeal either on fact or on substantive law from the decision of Maharaj J that the Appellant on the 17^th April 1975 was guilty of conduct that amounted to a contempt of Court.  What it does involve is an enquiry into whether the procedure adopted by the Judge before committing the Appellant to prison for contempt contravened a right, to which the Appellant was entitled under section 1 (a), not to be deprived of liberty except by due process of law. Distasteful though the task may well appear to a fellow Judge of equal rank, the Constitution places the responsibility for undertaking the enquiry fairly and squarely on the High Court’’

 

It goes beyond dispute in the light of the totality of the foregoing, that this Court indeed has the jurisdiction to entertain and determine Applicant’s application since same does not entail any forage into the facts or substance of the decision of M.C.B. Maphalala J, and I so hold.

 

 Having settled the above, let us now look at the substratum of this application.

 

I have hereinbefore demonstrated, that the applicant was arraigned before the High Court of Swaziland, for an indictment of rape with aggravating factors.  At the time of the commission of the offence the applicant was 15 years of age.  The trial Court relied on the provisions of section 185 (bis) (1) of the Criminal Procedure and Evidence Act to impose a custodial sentence of 9 years imprisonment on the Applicant which is the minimum sentence prescribed by section 185 (bis) (1).  From the facts stated herein, the Applicant contends that the said custodia sentence of 9 years imprisonment is unconstitutional regard being had to the fact that he was a juvenile at the time he committed the offence. Applicant therefore enjoins this court to declare sections 185 (bis) (1) and 313 (1) and (2) of the Criminal Procedure and Evidence Act, in so far as they advocate custodial mandatory minimum sentences on juvenile offenders, inconsistent with section 29 (2) read together with section 18 (2) of the Constitution.  Applicant further argues that the specification of offences in the Third Schedule on sections 185 (bis) (1) and section 313 (1) and (2), in so far as juvenile Justice is concerned deprives juvenile offenders of their rights not to be subjected to abuse or torture or other cruel, inhuman and degrading treatment or punishment, as is spelt out in section 29 (2), of the Constitution. Therefore, so goes the contention, the compulsory custodial sentence, and more so, one that is nine years at minimum, to a juvenile is so harsh in such a way that it is cruel and degrading treatment and punishment.  Moreover, it is not a moderate chastisement with a purpose of correcting the young offender pursuant to section 29 (2) of the Constitution.

 

 Applicant’s counsel urged the following authorities, Rex VMfanzile Mphicile Mndzebele Criminal Trial No. 213/2007 (unreported) at page 41-42;Mabuza and Others Vs S174/01) (2007) ZACA, 110; Centre for Child Law V Minister of Justice and Constitutional Development and Two Others CCT 98/2008 (2009) ZACC 18,paragraphs 31-32,

 

For their part, the Respondents conceded that the impugned provisions of the Criminal Procedure and Evidence Act 1938, are unconstitutional in so far as they are applicable to juvenile offenders. In conceding this fact Mr Vilakati urged the following authorities State V Petrus And Another (1985) LRC (const) 699 (CA) Aguda JA (as he then was) Jan SitholeN.O. And Others V Swaziland Government and Others Appeal Case No. 50/2008 (unreported), Ex-parte Attorney – General Namibia in Re Corporal Punishment by Organs of State 1991(3) SA 76 (NM SC) Article 37 (b) of theConvention on the Rights of the Child (CRC). He finally submitted as follows in paragraph 30 of the 2^nd Respondent’s heads of argument,

 

‘‘The impugned provisions treat and punish children in the same way as they do adults. The impugned section compel judicial officers to use imprisonment as a measure of first resort and in the case of rape with aggravating circumstances to impose a minimum sentence regardless of the best interest of the child.  The sections are in my submission destitute of natural kindness and therefore constitute inhuman punishment contray to section 18 (2) read with section 29 (2) of the Constitution.’’

 

I must confess that after assimilating the erudity exuded by the respective heads of argument, I was tempted to throw in the towel without more ado, on the question of the invalidity of the impugned provision, and proceed rather to the vexed question of what relief would be appropriate in the face of said invalidity.   I had to seriously caution myself not to succumb to this temptation. For to do this is tantamount to an abdication of our judicial responsibility as a Court, to construct our local laws and statutes, interpret and apply them to the peculiarities of our socio- economic and cultural environs, ultimately promoting the growth and advancement of the jurisprudence of this great Kingdom.  There is no doubt that within the context of the Constitution, this Court is given responsibility to determine the Constitutionality of legislation and once it concludes that a legislation is un Constitutional, it must declare it invalid. However, a declaration that a legislation offends the tenets of the Constitution and therefore un Constitutional, cannot be had just for the asking.  It is apposite that such a declaration of unconstitutionally is preceded by strict interpretation of the relevant sections of the Constitution that hold sway, which interpretation must be informed by jurisprudence and the writings of learned authors and academics.  Therefore, in spite of the fact that both sides urge the unconstitutionality of the impugned sections of the Criminal Procedure and Evidence Act, interest of justice still demands that a Judge seized with a matter such as this one, goes the extra hog of weighing all the factors that attend this case, to ascertain the substantiality of the allegation of the inconsistency of the impugned provisions, vis-à-vis, the Constitution.  I am obligated therefore to embark upon this journey, the Judge that I am.

 

Now, the Constitution of the Kingdomof Swaziland Act No.001, 2005, is the Supreme Law of the land.  The numero uno.  All Laws, authorities, acts and omissions derive their legitimacy and legality from the Constitution.  This is why section 2 thereof, declares it to be the Supreme Law of the Kingdom of Swaziland, and that any other law inconsistent with any provision of the Constitution shall, to the extent of the inconsistency, be void.  The Constitution is an organic document, which embodies the spirit, the values, the aspiration and expectations of the people.  This is reflected in the preamble of the Constitution of The Kingdom as appears on page 1 thereof, in the following language:-

 

‘‘ Whereas We the People of the Kingdom of Swaziland do hereby undertake in humble submission to Almighty God to start afresh under a new framework of constitutional dispensation;

Whereas as a Nation it has always been our desire to achieve full freedom and independence under a constitution created by our selves for ourselves in complete liberty.

Whereas various vusela consultations, economic and constitutional commissions, political experiments and Sibaya meetings have been established and under taken in the last thirty years in search of a sustainable home-grown political order;

 

Whereas it has become necessary to review the various constitutional documents, decrees, laws, customs and practices so as to promote good governance, the rule of law, respect for our institutions and the progressive development of the Swazi society;

 

Whereas it is necessary to blend the good institutions of traditional Law and Custom with those of an open and democratic society so as to promote transparency and the social, economic and cultural development of our Nation;

 

Whereas it is necessary to protect and promote the fundamental rights and freedoms of ALL in our Kingdom in terms of a constitution which binds the Legislature, the Executive, the Judiciary and the other Organs and Agencies of the Government;

 

Whereas all the branches of Government are the Guardians of the Constitution, it is necessary that the Courts be the ultimate Interpreters of the Constitution;

 

Whereas as a Nation we desire to march forward progressively under our own constitution guaranteeing peace, order and good Government, and the happiness and welfare of ALL our people;

Whereas the Constitution in draft form was circulated to the nation in both official languages, was vetted by the people at tinkhundla and Sibaya meetings;

 

Now, THEREFORE, WE, Ingwenyama-in –Council, acting together with and on the Approval of the Swazi Nation meeting as the Swazi National Council assembled at Ludzidzini this 4^th day of October, 2004, hereby Accept the following Constitution as the Supreme Law of the Land.”

 

The foregoing is the will of the Swazi people.

 

In casu, there is no doubt that the main and central weapon brandished by the applicant is the allegation that he was a juvenile, being 15years of age, at the material time of commission of the offence.  For support, the Applicant holds fast to section 29 (2) of the Constitution which advocates that a ‘‘child’’ shall not be subjected to abuse or torture or other cruel, inhuman and degrading treatment or punishment, as well as other relevant provisions of the Constitution.  I will come to these matters anon.

 

My first port of call however, in determining the constitutionality or otherwise of the impugned provisions, is to first determine whether the Applicant was a ‘‘child’’ at the time of the Commission of the offence to be availed of section 29 (2) of the Constitution, as urged.

 

It cannot be controverted that a convention that is ratified by the Kingdom of Swaziland, but not yet enacted locally as an Act of Parliament, is not part of the laws of the Kingdom.  An example of such a convention is the Convention of the Rights of the child, which was acceded to by the Kingdom on the 6^th October 1995, but is yet to be incorporated into the domestic law.  It is however an accepted rule of judicial interpretation, one of universal and hallowed application, that regard must be had to international conventions and norms in construing domestic law, when there is no inconsistency between them and there is a lacuna in the domestic law. This fact was recognized, as rightly urged by Mr Vilakati, in paragraph 18 of the 2^nd Respondent’s heads of argument, by the erstwhile Court of Appeal of the Kingdom of Swaziland, in the case of Ray Gwebu and Another V R, Appeal Case No. 19/2002, (unreported), where the Court held that unincorporated treaties may be used as aids to interpretation for purposes of adjudication in a domestic Court.

 

It is worthy of note that this is the practice across jurisdictions.  For example, in the case of Suresh V The Minister of Citizenship and Immigration and Another 4CHLRD 138, held 4, at 140-141, the Supreme Court of Canada held that,

 

‘‘In the international context, the Courts in considering the meaning of the Constitution may be informed by International Law even when such law is not binding…’’

 

Furthermore, in Theo v Minister of Immigration and Ethnic Affairs (1995) 183 CLR 273 (HC) andB v B Appeal No NA 357, File No 1833 of 1996, the Australian Courts invoked the Child Rights Convention as a universally accepted human rights instrument, even though Australia was yet to implement it nationally.

 

Similarly, in the case of Ousman Sabally v The Inspector General of Police 1997 – 2001 GLR, the Supreme Court of The Republic of The Gambia, invoked the African Charter on Human and Peoples Rights, though then not yet a domestic law, and in the case of Batista v Batista 1808 (sup et comm.) June 18, a Court in the United States of America, invoked the Child Rights Convention even though the United States of America was yet to ratify that convention.  Also see theTextThe Gambia Legal System by theHonourable Chief Justice of the Republic of The Gambia,Hon. Emmanuel Akomaye Agim (ORG), revised edition.

 

The totality of the foregoing demonstrates beyond any per adventure, that this Court can invoke the provisions of the Convention of the Rights of the Child, albeit not yet domesticated, in interpreting the word ‘‘child’’ as it appears in section 29 (2) of the Constitution, since the Constitution itself is silent on an interpretation of that word and in the face of a dearth of local case law on the subject matter.

 

Now Article I of the Convention of the Rights of the Child defines a child as a human being below the age of 18 years.

This definition must by necessity be ascribed to the meaning of the word ‘‘child’’ as appears in section 29 (2) of the Constitution. It follows therefore, that a child within the connotations of the Constitution of The Kingdom of Swaziland, is a person below the age of 18 years.  The foregoing facts put the Applicant, who was 15 years of age at the time of the commission of the offence, squarely within the province of the group of people contemplated by section 29 (2), and I so hold.

Since the sentence of the trial Judge was premised on the impugned provisions of the Criminal Procedure and Evidence Act, the natural question that looms large for determination at this juncture, is whether the impugned provisions, viz, sections 185 (bis) (1) and 313 (1) & (2) of the Criminal Procedure and Evidence Act, violate the provision of sections 29 (2) and 18 (2) of the Constitution, as to render the provisions unconstitutional.

 

To my mind a proper determination of this poser, will entail in the first instance, the ascertainment of the interest of the child which the Constitution strives to protect, via the relevant sections demonstrated therein.  This course is in honour of the purposive approach to interpretation which is advocated across jurisdictions.  This approach is that a Judge faced with the interpretation of a statute or the Constitution, must endeavour to gather the legislative intent, not only from the language of the statute alone, but also from a consideration of the social conditions which gave rise to it.  See Phumzile Myeza (supra) Seaford Court Estate Ltd v Asher (1949) 2 KB 481 at 498 -499.

 

The parties herein urged a total of four Provisions of the Constitution, in their bid to demonstrate the interest of the child protected therein.  These are sections 29 (2), 18 (2),19 (2) and 38 (e) of the Constitution.  These provision state thus:-

 

‘‘  29 (2)  A child shall not be subjected to abuse or torture or other cruel inhuman and degrading treatment or punishment subject to lawful and moderate chastisement for purposes of correction.

18 (2) A person shall not be subjected to torture or inhuman or degrading treatment or punishment.

19 (2) A child shall not be subjected to ----torture or other cruel inhuman and degrading treatment or punishment---

38 Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms

(e)  Freedom from torture, cruel, inhuman or degrading treatment or punishment’’

 

It is an obvious fact that apart from being a child at the time of  the commission of the offence, the Applicant was also a person, which in the ordinary grammatical usage of that word connotes a human being.  He is therefore entitled to all the Constitutional provisions ante.

 

Mr Vilakaticontends that the inconsistencies that attend sections 18 (2), 19 (2) and 38 (e) ante, demand a removal by way of harmonization. A point of interest is the very innovative manner in which Mr Vilakati proceeded to demonstrate the imperative harmonization, in paragraphs 24 and 25 of the 2^nd Respondents heads of argument. I find a need to reproduce in extensor these portions of the said heads of argument for ease of clarity and in the interest of posterity:-

 

‘‘24  I submit that the best way to harmonize the three sections bearing on the same freedom is by adopting an interpretation that confers the most benefit to the highest number of people.  This can be achieved by adopting the language of section 38 (e) for all three provisions.”

 

Thus read the Constitution prohibits seven (7) conditions:-

1. Torture;
2. Cruel treatment;
3. Cruel punishment;
4. Inhuman treatment;
5. Inhuman punishment;
6. Degrading treatment;
7. Degrading  punishment

 

25. The Applicant has not stated which one of the seven (7) conditions is implicated by the impugned provisions. I will assume that his complaint is that the impugned provisions contravene his freedom from inhuman treatment and his freedom from inhuman punishment’.’  

 

We thank Mr. Vilakati very much for the harmonisation ante and the seven (7) conditions prohibited by the Constitution which evolved in consequence thereof.

 

However, since the Applicant has not preferred any one of the conditions prohibited over another, and since in any event, all the provisions of the Constitution ante hold sway in the peculiar circumstances of his case, as I have hereinbefore demonstrated, I prefer to assume that his grouse is that all the seven (7) conditions prohibited are derogated by the impugned provisions.

 

I submit that the voice of the Swazi Nation is heard loud and clear on the question of the freedoms of the child through the Constitutional Provisions ante. The Constitution took the pains of addressing specifically the right of the child in sections 19 (1) and29 (2) thereof, notwithstanding the provisions on the right of the person, in which category the child also falls, as I have hereinbefore demonstrated.

 

More to this is that subsection 7 of section 29, enjoins parliament to enact laws to ensure that children receive special protection against exposure to physical and moral hazards within and outside the family. It is therefore indisputable on these premises, and as rightly contended by M.S. Dlamini in paragraph 12 of the Applicant’s heads of argument, that the will of the Swazi People, is that a difference must be made between the child and the adult in judging what is appropriate in each case. The Constitution makes a distinction between the two not only out of sentimental considerations but for practical reasons.

The will of the Swazi Nation on this subject matter is backed up by Local Jurisprudence.  I say this because my Learned Brother Masuku J, expressed views of similar colouration albeit Obiter, in the case of Rex vs Mfanzile Mphicile Mndzebele (supra) at page 47, in the following parlance:-

 

“68 It is worth mentioning that our Constitution makes special provisions relating to the rights of the child. Section 29(2) and 7(d) in my views, as read with Section 18(2), show that children are a special category and must for that reason, be treated with a measure of care. Section 29(2) prohibits the subjection of children to abuse, torture or other inhuman and degrading treatment or punishment. Subsection (7) of the same section calls upon parliament to enact laws to ensure that children receive special protection against exposure to physical and moral hazards within and outside the family...”

 

Furthermore, the legislative intent can also be gathered from the jurisprudence of other jurisdictions with similar legislation.  Thus in the Centre for Child Laws case (supra) at paragraphs 26-28, the court declared thus,

 

“The Constitution draws this sharp distinction between children and adults not out of sentimental considerations, but for practical reasons relating to children’s greater physical and psychological vulnerability. Children’s bodies are generally frailer, and their ability to make choices generally more constricted, than those of adults...

These considerations take acute effect when society imposes criminal responsibility and passes sentence on child offenders and most vitally, they are generally more capable of rehabilitation than adults.

These are the premises on which the Constitution requires the courts and parliament to differentiate child offenders from adults. We distinguish them because we recognize that exerting full moral accountability for a misdeed might be too harsh because they are not yet adults. Hence we afford children some leeway of hope and possibility.”

 

Then there is the case of Mabuza and Others vs S (Supra), where the Supreme Court of South Africa; per Cachalia J.A. declared as follows,

 

“Youthfulness almost always affects the moral culpability of juvenile accused. This is because young people often do not possess the maturity of adults and are therefore not in a position to assess the consequences of their actions. They are also susceptible to peer pressure and to adult influence and are susceptible when proper parental guidance is lacking. There are however, degrees of maturity, the younger the juvenile, the less mature he or she is likely to be. Judicial policy has thus appreciated that juvenile delinquency does not inevitably lead to adult criminality and is often a phase of adult development. The degree of maturity must always be carefully investigated in assessing a juvenile’s moral culpability for the purpose of sentencing.”

 

It is in my view inexorably apparent from the totality of the foregoing, that the overriding interest of the child which the Constitution strives to protect, vide section 29 (2) and 19 (2) read together with sections 18 (2) and 38(e) thereof, is the right to be treated differently from adults in all circumstances, and not to be subjected to abuse, torture, or other inhuman, cruel and degrading treatment or punishment, in order to forster a value development of the child.

 

The natural question that flows from the foregoing conclusion, is:-Do the impugned provisions to wit sections 185 bis (1) and 131(1) and (2) of the Criminal Procedure and Evidence Act derogate from the foregoing interest of the child?

These criminal statutes are couched in the following language,

 

“185 bis (1) A person convicted of rape shall, if the court finds aggravating circumstances to have been present, be liable to a minimum sentence of nine years without the option of a fine and no sentence or part thereof shall be suspended.

313(1) If a person is convicted before the High Court or any Magistrates Court of any offence than one specified in the Third Schedule, the court may in its discretion postpone for a period not exceeding three years the passing of sentence, and release the offender on one or more conditions as it may order to be inserted in recognisances to appear at the expiry of such period, and if at the end of such period the offender has observed all the conditions of such recognisances, it may discharge him without passing any sentence.

(2) If a person is convicted before the High Court or any Magistrates Court of any offence other than one specified in the Third Schedule, it may pass sentence, but order that the operation of the whole or any part of such sentence be suspended for  a period not exceeding three years, which period of suspension, in the absence of any order to the contrary, shall be computed in accordance with subsections (4) and (5) respectively.”

 

The foregoing provisions by the usage of the phrase ‘‘a person’’ which in ordinary literal grammatical interpretation by Oxford Law Dictionary means ‘’ any human being’’ , to which category the child also falls, a child being a human being, by their literal interpretation, give no leeway or possibility of escape to the child offender. They draw no distinction between the child offender and the adult.  They prohibit the suspension of sentences in relation to offences contained in the Third Schedule, which are enumerated therein, as murder, rape, robbery or conspiracy, incitement or attempt to commit any of these offences. They direct the hand of the court, compelling it to impose mandatory minimum custodial sentences on all offenders, be it child or adult, in so far as the offence  of rape is concerned. They thus by their language, compel the courts to treat and punish the child offender in the same way and manner as adult offenders. It appears to me therefore, that these provisions, which by their mandatory and peremptory language compel the court to impose minimum mandatory custodial sentence upon child offenders, by their literal interpretation violate the peculiar circumstances of the child offender, which I have hereinbefore demonstrated, in that they constitute barbarious, cruel, inhuman treatment and punishment in relation thereto.

 

In arriving at this conclusion, I am guided by the case of Ex parte Attorney-General Namibia: In Re Corporal Punishment By Organs of State 1991(3) SA (NMSC) at 86G-H where the court defined the term “inhuman” as follows, “destitute of natural kindness or pity; brutal; unfeeling, cruel, savage, barbarous.”

 

Similarly, Masuku J, demonstrated a disposition of kindred spirit, with the case ante, at paragraph 69 of the case of Mndzebele (supra) when he declared thus,

 

“69 It is clear therefore, regard had to the foregoing that Courts must, in sentencing children and juveniles, ensure that the Constitutional ethos are encompassed. It has been held for instance, that a sentence may be regarded as cruel, inhuman or degrading if it is so unfit having regard to the offence and the offender as to be grossly disproportionate. In deciding whether the sentence is disproportionate, involves the exercise of moral judgment. See Petrus vs The State (1984) BLR 14 (CA) at 1 D-E (Mr. Aguda JA). In Moatshe vs The State (2004) 1 BLR 1 (CA) the word “inhuman” was described by the Court of Appeal of Botswana as meaning “destitute of natural kindness or pity, brutally, unfeeling, cruel, savage, barbarous.”

 

More to the foregoing is that it is the judicial consensus that a child, by reason of the frailties of his physical, emotional and psychological circumstances, is exempt from mandatory sentences. Jurisprudence proposes that imprisonment must be a last resort for the child. This position of jurisprudence is in accord with the tail end of our section 29 (2), which advocates that any punishment imposed on a child should be “subject to lawful and moderate chastisement for purposes of correction.”

 

I apprehend that it is in honour of the foregoing position of the Law that Masuku J stated thus in paragraph 71-73 of the Mndzebele case (supra)

 

“71. There is an issue regarding the Constitutionality of the provisions of section 313(1) of the Act which prohibits the imposition of a suspended sentence in relation to offences listed in the Third Schedule namely, murder, rape, robbery and any conspiracy, incitement or attempt to commit any of the above...

72. Counsel on both sides did, however concede that the mandatory nature of the section in so far as it relates to juveniles and children is manifestly unconstitutional for the reason that it obliges the Court not to suspend any portion of any custodial sentence even if on a proper conspectus of  the facts, that is imperatively called for...

73. My attention was pertinently  drawn...to the Court of Appeal case of Justice Sipho Magagula and Others vs Rex Appeal Case No.4/2000; where Van den Heever JA, notwithstanding the provisions of Section 313(1) above, found it fit, on account of the youthfulness of the Appellant, to impose a suspended sentence in a case of robbery. This goes to show how sensitive Courts ought to be in dealing with juveniles within the criminal justice system” (my underlining).

 

Similarly, in S vs B 2006(1) SACR 311, Punnan JA declared thus,

“The principle that detention is a matter of last resort, and for the shortest appropriate period of time is the leit motif of juvenile justice reform. Those principles are articulated in international law and enshrined in the Constitution...The overriding message of the international instruments as well as the Constitution is that child offenders should not be deprived of their liberty except as a measure of last resort, and where incarceration must occur, the sentence must be individualised with emphasis on preparing the child offender from the moment of entering into the detention facility for his or her return to society.”

 

It is worthy of note that the foregoing sentiments expressed by Punnan JA, were replicated in the case of Centre for Child Law (supra) in paragraph 31-32 thereof, in the following language,

 

“31. Detention must be a last, not a first or even immediate resort; and when a child is detained, detention must be ‘only for the shortest appropriate period’ bearing not only on whether prison is a proper sentencing option, but also on the nature of the incarceration imposed. If there is an appropriate option other than imprisonment the Bill of Rights requires that it be chosen. In this sense incarceration is unavoidable, its form and duration must also be tempered, so as to ensure detention for the shortest possible period of time.

32. ...the injunction that the child may be detained only for the shortest ‘appropriate’ period of time relates to the child and to the offence he or she has committed. It does not import a supervening legislatively imposed determination of what would be ‘appropriate’ under the minimum sentencing system.”

 

More to this is that Article 37(b) of the Convention for the Rights of the Child admonishes the following,

 

“37 (b) The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period.”

 

Then there is also Article 40 of the same Convention which provides that child offenders should be ‘‘treated in a manner that is consistent with the promotion of the child’s sense of dignity and self-worth, which reinforces the child’s respect for human rights and fundamental freedoms of others and takes into account the child’s age and the desirability of promoting the child’s integration and the child’s assuming a constructive role in society.”

 

In the Namibian case of Ex parte Attorney-General Namibia: In Re Corporal Punishment By Organs of State (supra), Mahomed AJA (as he then was), advocated the “exercise of value judgment” in determining whether a particular form of

punishment or treatment is inhuman, in the following language:-

 

“It (the exercise of a value judgment) is however a value judgment which requires objectively to be articulated and identified, regard being had to the contemporary norms, aspirations, expectations and sensitivities of the Namibian people as expressed in its national institutions and its Constitution, and further having regard to the emerging consensus of value in the civilised international community (of which Namibia is a part) which Namibians share.”

 

In the exercise of my value judgment, it appears to me established beyond disputation, by the conspectus of the totality of the foregoing, that the impugned provisions, to wit Sections 185 bis (1) and 313(1) and (2) of the Criminal Procedure and Evidence Act, in so far as they compel the imposition of minimum mandatory custodial sentence upon all Third Schedule offenders, including the child, are inhuman, cruel and destitute of natural kindness.  I say this because they are inimical to the circumstances of the child which is that in all cases a child should be treated differently from adults and that imprisonment should be a measure of last resort, and where imprisonment does occur, it must be for the shortest possible time, and must be geared towards the best interest of the child, which is to rehabilitate him and prepare him emotionally and psychologically for his eventual emergence back into the society.  It is beyond per adventure that the mandatory irrevocable custodial sentence of a minimum of 9 years imprisonment stipulated in the said criminal statute, is rather very punitive and is not correctional or reformative.  We must remember that the wisdom of the Constitutional provision and protection of the child is founded on the notion that the child, as fully demonstrated by the panoply of jurisprudence which I have hereinbefore restated, is not yet very conscious of the vicissitude of life in society and is very prone to being victimized by societal forces.  This is because he lacks the capacity to make well informed choices by reason of his biochemical immaturity.  That is the wisdom.

Even in our traditional setting, this fact is recognized.  That is why a lot of protection is provided for the child until he attains maturity.  It will therefore be unfair to expose him to further victimization by meting out draconian punishment to him for actions or omissions by him at the time he did not fully understand the implication.  Every human being is entitled to an opportunity to understand the basis of ones choices in life.  If we do not give the child such an opportunity, many of us sitting here very successful today, will not be where we are, and the society would have lost our valuable service.  Psychologists, sociologists, educationist and philosophers, have throughout history remained unanimous that hard or draconian punishment of the child does not correct or reform the child.  It rather deforms his mind and sight. It may end up taking away the humanity in him, turning him into a vicious character with a propensity to repeat the crime or even one more grevious than the former.  The child in that event becomes not only a nuisance but a menace to society.  These are the dangers we must avoid by ensuring that Criminal Justice in respect to the child, must be purposed on educating and reforming the child.  Thereby, giving him the opportunity to make informed choices upon attainment of maturity . These criminal  statutes are thus inconsistent with the interest of the child preserved by sections 29 (2) and 19 (2)read together with sections 18 (2) and 38 (e) of the Constitution, and are to the extent of that inconsistency, unconstitutional, pursuant to section 2 of the Constitution.

 

Now, at the tail end of this saga lies the question of the natural consequence of the declaration of invalidity. In casu, this is a vexed question. A point of vociferous disagreement.  It is also a universally recognized difficult aspect of the case. The contending protagonists held unto their strong points, refusing to abandon ship.  The Applicant is unrelenting in his stance, that a declaratory order that will not include a remission of this case back to the trial court for his re-sentencing, is a pyrrhic victory. The team of counsel for the Applicant, in oral argument contended, that the enforcement of the right of the citizen is within the province of the  High Court vide section 35 of the constitution.. In reply to Mr. Vilakati’s oral argument, which I will come to anon, Applicant’s counsel abhorred the orders recommended  by the Respondents contending that a suspension of the declaratory order, in the interest of the alleged children’s bill which is in the making, will not augur well for the Applicant due to the fact that it is not  known when the bill will be passed into law, at which time it is possible, that the Applicant’s right of appeal to the Supreme Court would have completely extinguished, thereby, reducing the declaratory orders by this court, to the status of a sheaf of empty papers as it were, in the hands of the Applicant.

 

Learned counsel maintained that the interim orders urged by the Respondents, in the event of the proposed suspension of the declaratory orders, are inconceivable, as they cannot remedy the plight of the Applicant.  They urged in aid the following cases,  Fose v Minister of Safety and Society 1997 (3) SA 786 (cc) paragraph 19, and SV Bhulwana 1996 (1) SA 388 (cc) paragraph 32.             

 

The Respondents for their own part are dogged in their posture, that any order that would have a retrospective effect from the date the Constitution came into effect, to wit 26^th July, 2005, will have catastrophic consequences. That such an order is not in the interest of good governance. Reason being that 36 children other that the Applicant have been sentenced  for Third schedule offences, since 26^th  July 2005, and 31 of them have completed their sentences.  The potential invalidation of sentences and claims for damages would cause a dislocation in the administration of justice.

 

Respondents further contended that re-sentencing of the applicant is inappropriate.  They submitted that the trial judge is now functus officio and cannot re-open the case, as same does not conduce to any of the circumstances, recognized by jurisprudence for said reopening. Mr Vilakati, argued that the appropriate relief, would be a declaration of invalidity of the impugned provisions to take effect from the date of conviction of the Applicant, suspension of the said declaration to enable Parliament enact  a legislation that gives effect to the rights of the child, pursuant to section 29 (7) of the constitution. He urged an interim measure of “a reading in” as well as “a severance” to eradicate the unconstitutionality of the impugned provisons, pending said legislation. He urgedThe Attorney General V Mary Joyce. Doo Aphane Appeal case No. 12/2010, National Coalition for Gay and Lesbian Equality and Another v Minister of Justice 1999 (1) SA 6 (cc), Centre For child Law v Minister of Justice 2009 (6) SA, 632  (cc),  Ferriera Levin No. and other v 1996 (1) SA 984, A paper entitled “Fashioning Constitutional Remedies in south Africa; some reflections” delivered by Kate 0’ Regan, to The Honourable Society of the Middle Temple Conference, Cape Town, in September, 2010.

 

Now, it is a general rule of both the civil and the common law, that every invasion of a private right imports an injury, and that for every injury the law gives a remedy. Section 35 of the Constitution affords the right to a redress, for any violation of the fundamental right of a Swazi National.

 

The first step to that redress as propounded by Section 35 (1), is the opportunity to vindicate ones right before an Independent and Impartial body, with a view to obtaining a recognition of the  violation. I have hereinbefore demonstrated this remedy by a finding of the unconstitutionality of the impugned provisions.  What is at hand now is what reliefs would be appropriate to ensure a cessation of the continuing violation for the sake of posterity.  As theInter American Court of Human Rights wrote in the case of Caracazo v Venesuela (reparation) judgment of the 29^th August 2002, Series. C No. 95, paragraph 115;  

 

“Anyperson who considers himself or herself to be a victim of such violations has the right to resort to the system of justice to attain compliance with the duty by state, for his or her benefit and that of society as a whole” 

 

Having declared the impugned provisions invalid, in so far as they affect the rights of the child, the next task  therefore, is to ascertain the effective date of the order of invalidity.

 

The reliefs sought by the applicant cry out for a retrospective order of invalidation effective from the 26^th of July, 2005, the effective date of the Constitution. The parties are concensus that pursuant to section 35 2(b) of the Constitution, the High Court has the mandate to make such orders, issue such writs and make such directions, as it may consider appropriate for the purpose of enforcing or securing the enforcement of a fundamental right.  In undertaking this duty a court must ensure that any relief granted must be prompt and effective. It must not be theoretical or illusory, but provide a practical and workable result which is able to propitiate the wrong.  In the quest for an effective relief in all circumstances, we must as judges, tame our thoughts to bear on the fact, that judicial office is not an ego trip. It is a sacred office. Sacred because of the fundamental importance of its task to the well-being and existence of the society.  The way and manner we discharge our duties is the most important determinant of the failure or success, weakness or efficiency of a country’s legal system.  The first victim of every instance of wrongful discharge of any judicial duty is the rule of law.  At any stage of the judicial process that the wrong thing is done, the legal system is weakened. The easiest and shortest route to weak governance and anarchy therefore is the wrongful exercise of judicial duties.  We must in all circumstances remember, that law as an instrument of development, does not reside in the judiciary and the legal profession alone, but the executive and the legislature, also have a portion of this duty by the tenets of the constitution.  We must respect that separation of powers embodied in the Constitution.

 

Therefore, in all cases, the court must weigh the interest of the aggrieved to a relief, with the competing interest of the society to stability, and if the interest of the society out weights that of the aggrieved, refuse to grant the reliefs sought. The determinate factor is therefore, that if to favour the relief sought by a few in redress would lead to a total breakdown of law and order, and the enthronement of chaos and anarchy for the larger populace, the court should not grant the relief. I am happy to announce that I am not alone in this proposition. I have jurisprudential backing. 

 

In the High Court case of Swaziland National Ex Mine Workers Association  v The Minister of Education and others, (supra)  my learned brother MCB Maphalala J, in consideration of the interest of the society, in an application for relief by aggrieved litigants, pursuant to section 29 (6) of the Constitution, which advocates free primary education, commendably in my view, declared that in the  Kingdom, the application of the ratio in the South African case of Minister of Health v Treatment Action campaign 2002 (5) SA 721 (cc) at 755, wherein government was ordered to comply with the right to health, enshrined  in that country’s  Constitution, and that “the funds must be produced or procured by the respondents where-so- ever and how-so-ever to fulfil their constitutional obligation” would be a recipe for chaos and anarchy. His Lordship based on the overriding interest of the society dismissed the application for redress.

 

Furthermore, in dismissing an appeal against the said decision of MCB Maphalala J, the very instructive pronouncement of Dr Thum JA at paragraphs 21,22,23 of the Supreme Court decision in the same case of Swaziland National Ex Mine Workers Association (Supra), is apposite in these circumstances. His Lordship declared thus:-

 

“21. In my considered opinion, the problem posed in this appeal comes down to the availability of resources, not a fastidious insistence on the true and proper interpretation of, section 29 (6) of the Swazi constitution.  I hasten to add, I am not saying that the interpretation is irrelevant.  What I am saying is that after the interpretation and the evaluation of two high court judgments, if the problem still persists, some other solution must be adopted ….  It is this impasse that leads one inexorably to the conclusion that this is one dispute which cannot be resolved solely by further resort to legal syllogisim and the persuasiveness of judgments and accademic writing

 

22. It may well be that the characterization of the rights of the Swazi child to free primary education as a fundamental right was over-ambitious, Be that as it may, in my view, the answer does not necessarily lie in an amendment to the Constitution.  Rather, the Government may have to rehash its programmes, policies and priorities so that the hopes and aspirations of the people of Swaziland as captured in the Constitution may be realized. 

       

23. It must be noted, however, that a very fruitful lesson must be learnt by all the people of this Kingdom.  Nations can fail or become bankrupt.  The situation in Greece, a member of the European Union, is a clear example.  The law governing their pension scheme was seriously flawed leading to insufficiency of pension funds when people started to retire at age 50.  Now, they require what has been euphemistically called “a bail out” (a loan) of some euros 600 billion.  The other lesson is that many developing counties depend to some extent on foreign donations to support their projects.  Many such countries, including Ghana, for some years cannot balance their budget unless they receive some sort of subvention from the “Paris club” of nations”.  

 

The foregoing pronouncement to my mind demonstrates that the overriding interest of the society must hold sway in all circumstances. Furthermore, I find the pronouncement of the  constitutional court of South Africa in the case of S V Bhulwana ; SV Gwadiso  (supra) analogous in these circumstances.  The court declared thus in paragraphs 32 and 33 of that case;

 

“(32) central to a consideration of the interest of justice in a particular case is that successful litigants should obtain the relief they seek.  It is only when the interest of good government outweigh the interest of the individual litigants that the court will not grant relief to successful litigants.  In principle too, the litigants before the court should not be singled out for the grant of relief, but relief should be afforded to all people who are in the same situation as the litigants  (See US v Johnson 457 US 537 (1982), Teague V lane 489 US 288 (1989) on the other hand, as we stated inS v Zuma (at para [43]  we should be circumspect in exercising our powers under section 98 (6) (a) so as to avoid unnecessary dislocation and uncertainty in the criminal justice process. As Hartan J stated in Mackey V US 401 US 667 (1971) at 691; “No one, not criminal defendants, not the judicial system, not society as a whole, is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day therefore his continued incarceration shall be subject to fresh litigation on issues already resolved” As a general principle therefore, an order of invalidity should have no effect on cases which have been finalized prior to the date of the order of  invalidity.

 

[33] In the light of all these considerations, it is my view that the proper order to be made in terms of section 98 (6) (a) is that the order invalidating S.21.(1)(a) (i) shall also invalidate any application of the presumption contained in the section in any criminal trial in which an appeal or review is pending as at the date of this judgment or in which an appeal may yet be timeously noted”

 

It is beyond dispute from the totality of the foregoing, that the interest of the society is of paramouncy in the process of invalidation of enactments. Courts are thus enjoined to exercise circumspection in the declaration of the invalidity of an enactment in order not to dislocate the entire system.  In consequence of the foregoing analogy, I have tamed my thoughts to apply great circumspection in this matter, and I have therefore come to the conclusion, that a declaration of unconstitutionality of the impugned provisions with a retrospective effect, to the 26^th of July, 2005, date of coming into force of the Constitution, spells dire consequences for the nation. This is because it has the dangerous potentials of opening the food gates to 36 would be protagonist, crawling out of their wood work, crying for redress and reparation from government. I say this because it is indisputable, from the confirmatory affidavit filed of record by the Commissioner of His Majesty’s Correctional Services, one Isaiah Mzuthini Ntshangase, that since the 26^th of July, 2005, the effective date of the Constitution, 36 children, other than the applicant have been sentenced for The Third Schedule Offences, and 31 of them have completed their sentences.  A retrospective order of invalidation, will more certainly than not, compell these 36 persons to contend for redress from government.  This state of affairs if allowed will foist a situation of helplessness upon the already dire financial woes of government, further steepening the economic crunch leading to a total break down of stability and ultimately dislocating the system of administration of justice.

 

The constitutional court of South Africa was very much alife to the possibility of such  claims  for redress in the face of invalidation of  a statute, when in the case of National Coalition for Gay and Lesbian Equality And another v Minister of Justice (supra) the court declared as follows:-

 

“persons might act directly under the order to have conventions set aside  without adequate judicial supervision or institute claims for damages.  The least disruptive way of giving relief to persons in respect of past convictions for consensual Sodomy is through the established court structures.  On the strength of the order of constitutional invalidity, such persons could note an appeal against their conviction for consensual sodomy, where the period of noting such an appeal has not expired, or, where it has, could bring an application for condonation of the late noting of an appeal or late application for leave to appeal in a court of competent jurisdiction.  In this way effective judicial control can be exercised. Although this might result in cases having to be re opened, it will in all probability, not cause dislocation of the administration of justice of any moment”

 

On these premises, I am inclined upon a careful consideration of the totality of the foregoing factors, to accede to the entreaties of the Respondents, that a proper order of invalidation in these circumstances, would be one couched to lie from the date of  conviction of the Applicant by the High Court, that is, the 14^th of February 2011, in order not to occasion a dislocation of the administration of justice, and I so hold.

 

Now, we come to the Applicant’s contention that any order of invalidation without an accompanying order for remittance of this case back to the trial judge for re-sentencing, would render the order of invalidation an empty victory.  Let me observe here, that I have no wish to embark on any winding or drawn out analysis of this issue, for same is but a simple one. I say this because the relief for which the applicant contends on this wise, raises the trite legal doctrine of functus officio. I count it now judicially settled, that once a court renders a final judgment or order in a case, it has no powers of its ownself or authority to review, alter or supplement it.

 

 The rational is that the court upon pronouncement of final judgment or order becomes functus officio. It’s jurisdiction in the case having been fully and finally exercised. It’s authority over the subject matter ceases, leaving it with no powers to reopen same.

 

        The Supreme Court of Swaziland has had occasion in the very recent past to adumbrate on this doctrine in the case of the Swaziland Motor Vehicle Accident Fund v Senzo Gondwe Civil appeal No. 66/2010, wherein the court in paragraph 47 thereof, restated the dictum of Trollip JA, in the case of Firestone South Africa (Pty) Ltd v Genticuro A.C 1997 (4) S.A. 298 (a) at page 306, as follows:- 

 

“The general principle, now well established in our law is that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it.  The reason is that it thereupon becomes funtus officio, its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased---“.    

 

In conclusion in paragraph 11, page 11 of the same case of Gondwe (Supra) Ramodibedi CJ declared thus

 

“ I am mainly attracted by the more enlightened approach which permits a judicial officer to amend and supplement his pronouncement or order provided he does not change its sense or substance.  I consider that this approach should guide this court as the highest court in the country so as to enable it to do justice according to the circumstances.  This is such a case”

 

        More to the foregoing is the very compelling pronouncement of Masuku J, in the very recent decision of the High Court, in the case ofNokuthula Mdluli v Stanley Mnisi and other, Civil Appeal No. 431/11, judgment of the 3^rd March 2011, (unreported) at  paragraph 51, wherein his Lordship stated as follows:-

 

“[51]In my view, it is a wholesome and inexorable conclusion that theorder or judgment issued by the Magistrate’s Court in relation to the divorce and its  ancillaries  was final.  Having exercised its powers in relation thereto, it became funtus officio, having fully and finally exercised its powers and its jurisdiction having come to an end.  It was no longer open to it, whatever the circumstances, even if with the benefit of hindsight, it found that it had erred in issuing the orders or judgment it did, to revisit the said order or judgment, save in the limited circumstances brooked in the Firestone case (supra). The only issue that may be different in this regard, is that relating to maintenance and which that court could, after sometime, be able to re-open if a change of circumstances had been alleged and proved by admissible evidence”. 

 

There are however a few judicially accepted exceptions to the foregoing principle of law, which is that if a litigant approaches the court within a reasonable time after the pronouncement of the final judgment or order, the court may correct, alter or supplement it in one or more of the following cases viz:-

 

(1)    The principal judgment order may be supplemented in respect of accessory or consequential matters, for example costs or interest, on the judgment debt, that the court over looked or inadvertently failed to grant.

 

(2)    The court may clarify its judgment or order if on a proper interpretation, the meaning of it remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided that it does  not thereby alter “the sense and  substance” of the judgment or order. 

 

(3)    The court may correct a clerical, arithmetical or other error in its judgment or order so as to give effect to its true intention.  This exception is confined to the mere correction of an error in expressing the judgment or order, and does not extend to altering its intended sense or substance.

 

(4)    If counsel has argued the merits but not made submissions as to costs and the court, in granting judgment, also makes an order relating to costs, it may therefore correct, alter or supplement that order.

 

        See Herbstein and Van Winsen, Civil Practice of the Supreme Court of South Africa (4^th edition) page 686. Monnanyana v The State (20002) I.B.L.R  72 (A) Fire Stone South Africa (Pty) Ltd (Supra) The Swaziland Motor Vehicle Accident fund (Supra) Nokuthula (Supra).

 

In casu, the relief of re sentencing by the trial court sought, is one that will, in my view, require that court to alter “the sense and substance”  of the final order of sentence it pronounced on the 14^th February, 2011 and therefore does not fall within the purview of the foregoing exceptions.

 

It is my considered opinion, that in as much as section 35 (2) (a) of the Constitution, empowers the High Court, in these circumstances, to make such orders, issue such writs and make such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the right, the court, I am bound to say, is still obliged to ensure that the process of meting out justice is not only rational but also ethical and legal.  This is because the achievement of this purpose, to my mind, is assessed by not only the result but also by a consideration of whether the means of achieving that result is ethical and legal.  I must also point out at this juncture, that the case of Maharaj (Supra) called in aid by the Applicant in canvassing this question, cannot avail him. I say this because the facts of Maharaj are easily distinguishable from the facts of this case. In Maharaj, the aspect of the case which the Privy Council remitted back to the High Court of Trinidad and Tobago for determination, was the issue of damages to be awarded to the appellant and not the issue of his committal. Since the question of damages had not been decided by that court, the High Court of Trinidad and Tobago, was thus in my view, within its powers to entertain and determine that question.

 

It would thus appear to me from the totality of the foregoing, that the proposition of re-sentencing by the trial High Court is not only unethical but also illegal. That proposition is thus unmaintenable, as it inexorably propounds a dislocation of the administration of justice. The proper course to my mind, which course was also approved by the Constitutional Court of South Africa in the case of National Coalition for Gay and Lesbians Equality and Another (Supra), and since it is common cause that the time for noting an appeal in this case has not elapsed, would be for the Applicant to note an appeal against his sentence to the Supreme Court of the Kingdom of Swaziland, on the strength of the order of constitutional invalidity and I so hold.       

 

Now, the Respondents seek a suspension of the declaration of invalidity, for a period of twelve months, which is to enable Parliament pass the Child Protection and Welfare Bill.  They propose an interim measure pending the passing of the said bill, “of a reading in”, into the provisions of section 185 (bis) (1) of the Criminal Procedure and Evidence Act, to bring it in conformity with the fundamental rights of the child,  embodied in the Constitution, in the following terms

“A person, who at the time of commission of the offence is 18 years of age or above, convicted of rape shall, if the court finds aggravating circumstances to have been present, be liable to a minimum sentence of nine years without, the option of a fine and no sentence or part thereof shall be suspended”

 

The Respondents also propose the severance of the words “other than one specified in the third schedule” as they appear in section 313 (1) and (2) of the Criminal Procedure and Evidence Act, pending the passing of the said child protection and welfare Bill.

 

The applicant via his counsel, is completely opposed to these propositions, condemning them as inconceivable.  He contends that it is not certain when the said child’s Bill will come into effect, at which time his right of an appeal may have completely extinguished.  He also expressed the reservation, that in the event of a suspension of the declaration of invalidity, that the proposed interim orders give him no legs to go on appeal.

 

There is no doubt that the judicial power of the kingdom lies with the courts, the legislative power with the Legislature and the Executive power with the executive.  There is a clear separation of these powers in the Constitution.  Therefore, it is not the primary responsibility of the court to enact laws, that lies within the province of the legislature.  The court however in its duty to use the law of the land to foster a progression of the society, by interpreting and applying the laws to the socio-economic and cultural peculiarities of the nation, may evolve laws.  These laws are however subject to enactment by the legislature.  By their proposed interim orders, the Respondents appear to be entreating this court, to modify the laws of the land in interim measures, to align them with the Constitution, pending legislation.  At first glance we have no powers so to do.

 

However, the course proposed by the Respondents in casu, is not unknown to law. The Constitutional Court in the neighbouring Republic of South Africa, a country whose enactments are largely in pari materia with our own, and whose jurisprudence is of high persuasive authority in this nation, has exploded these Constitutional issues and settled them.

 

An order of suspension of a declaration of invalidity, and the attendant interim orders, are therefore recognized by the South African, jurisprudence.  In her lecture “Fashioning Constitutional Remedies in South Africa, some reflections” (supra), Kate O’Regan, correctly captured the situation in South Africa. I will endeavour to demonstrate excerpts from the said lecture, for ease of clarity and to buttress my reasoning in this judgment.  On the question of suspension of the declaration of invalidity, she declared thus on pages 5, 8 and 9 respectively:-

“The general principle is that  a court will seek to formulate the declaration of invalidity so as to do as little harm to the overall statutory framework as possible while vindicating rights and eradicating unconstitutionality ….sometimes there appear to (sic) a range of ways in which the unconstitutional law can be remedied and is such circumstances, the court may choose to suspend the order of invalidity (with or without interim relief) and give the relevant legislative authority time to amend the offending legislation…. An order suspending an order of invalidity is an order that suspends the order of invalidity for a period into the future.  In so doing, it permits an unconstitutional state of affairs to continue.  Where such an order is made, the court will often provide for interim relief to ameliorate the effect of the unconstitutional provision as best possible.  One of the circumstances in which the court has suspended the order of invalidity was where it found that an Act of Parliament had been enacted without following the required procedure.  The amendment was declared invalid, but the order was suspended for a period of time to permit Parliament to re-enact the legislation correctly, if it chose to do so.

 

Where Parliament fails to correct the defect within the period of suspension, the order of invalidity comes into effect.  Once that has happened, the Constitutional Court cannot resuscitate the legislation.  If the relevant Minister approaches the court before the period of suspension has expired for an extension of the period, the court may grant such an order if it is just and equitable to do so.”

 

See Doctors for Life International v Speaker of National Assembly and others 2006(6) SA 416 (CC) at para 215, Minister of Justice v Ntuli 1997 (3) Sa 772 (CC), Zondi v MEC for Traditional and Local Government Affairs, KZN (2005) Z ACC 18 2006 (3) SA 1 (CC); and Exparte Minister of Social Development and others (2006) ZACC 3; 2006 (4) SA 309 (CC).

 

There is no doubt in my mind by virtue of the totality of the reasons ante, that a court can suspend an order of invalidity, where there exists an alternative course of remedying the unconstitutionality of the impugned enactment, and where it is just and equitable to do so.

 

The question is, does the foregoing route apply to the circumstances of this case?  I must answer this poser in the affirmative. I say this because, I have hereinbefore demonstrated, that the use of law as an instrument of development does not lie in the province of the courts and legal profession alone.  The executive and the legislature also have Constitutional and Statutory duty to undertake this task.  I apprehend that it is in recognition of this fact, that our Constitution, by section 29 (7) thereof, reserves for Parliament the enactment of legislation to give effect to the rights of the child.  It is common cause that the legislative process has already been set in train with the publication of the Children’s Protection and Welfare Bill, 2010, in the Government Gazettee of 25 February 2011. A proper exercise of Judicial discretion in these circumstances to my mind, demands that this separation of powers, be maintained, by a suspension of the order of invalidity.  This is because if the order of invalidity is allowed in the circumstances to take immediate effect, it has the ill consequence of completely “snuffing the life out” of the impugned legislation in so far as they affect children ultimately breaking down the system of administration of justice, and unleashing anarchy and chaos on the society.  Since an alternative workable and practical course exists, I prefer to tow  that course and I so hold.

 

Now, we come to the interim orders that must attend the order of suspension of invalidity, to ameliorate the unconstitutionality of the impugned provisions pending legislation.  The Respondents propose “a reading in” and “a severance” as I have already demonstrated herein.  Again these interim orders are no strangers to the jurisprudence of South Africa, as ably demonstrated by Kate O’Reagan in her lecture, at pages 5,6 and 7, wherein she stated as follows:-

“….it might be possible to narrow the scope of the order of invalidity by using the technique of severance.  Severance involves either excising words or provisions from a statute so as to remove the cause of constitutional complaint (actual severance); or notional severance that provides that a particular meaning or effect of a legislative provision is deemed to be “notionally severed” from the ambit of the provision. 

Actual severance is a useful jurisprudential technique that allows courts to target the offending words in a provision and remove them and has been used on numerous occasions by the constitutional court to eradicate unconstitutional provisions (or parts of them) from statutes.  Severance can sometimes be quite extensive.  The test for severance is the simple test whether the “bad can be severed from the good”,  in such a manner that what remains is still consistent with the legislative purpose.

 

Notional severance is different.  It focuses on the words “to the extent that” and rather than eliminating specific words in a provision, removing the scope of the provision by indicating circumstances to which the provision is not applicable. …

 

A distinct but related remedy, is the remedy of reading in.  The unconstitutionality of a statute is remedied by reading additional word, into a statutory provision.  Although it is often thought that a reading in order is more invasive than a severance order, the Constitutional Court concluded that in principle it is not a greater invasion of the terrain of the Legislature to read words into the statute than to excise words from it.”

 

See Coetzee v Government of the Republic of South Africa;  Matisu and others v Commanding Officer, Port Elizabeth Prison and Others 995 (3) SA 631 (CC) at para 16, Ferreira v Kevin NO and others, Vryen hoek and others V Powel NO and others (Supra) and National Coalition for Gay and Lesbian Equality and others v Minister of Home Affairs and others (supra).

 

In the Ferreira v Levin NO case (supra), which was the first case in which the South African court applied the principle of notional severance, the bone of contention was section 417 (2) (b) of the Companies Act, 5 of 1973, which provided that a person could be called to give evidence before an enquiry into the affairs  of a company and that “any such person may be required to answer any question put to him at the examinations, notwithstanding that the answer might tend to incriminate him, and any answer given to any such question may thereafter be used in evidence against him”.  The notional severance order provided that the provisions of section 417(2)(b) are declared invalid to the extent only that it “may apply to use of any such answer in criminal proceedings, other than proceedings” for perjury.

 

In casu, the proposed interim orders which urge a reading in of the words “who at the time of commission of the offence is 18 years of age or above” into the provisions of section 185 (bis) (1) of the Criminal Procedure and Evidence Act, and the severance of the words “other than one specified in the third schedule” from section 313 (1) and (2) of the CP&E, are to my mind apposite to the circumstances of this case.  This case can be easily distinguished from the Alphane case (Supra) wherein there existed a host of other policy options to the legislature so as to align the attacked law with the Constitution.  The Supreme Court therefore held that a reading in was an inappropriate remedy in that case.  In casu, I see no other options open to legislature and none is urged in these proceedings.

 

Let me observe here that the Applicant’s cry of “wolf” to the proposed interim orders, in so far as his rights of appeal is concerned, to my mind is misconceived.  I say this because the proposed interim orders, which by necessary implication are also effective from the date of conviction and incarceration of the Applicant, and which must for all intents and purposes, be read together with the order of constitutional invalidity, as suspended, to my mind, still constitute the requisite vehicle via which the Aapplicant can be conveyed to the Supreme Court of Swaziland, to vindicate his rights.

 

In the face of the totality of the foregoing, I see nothing stopping a grant of the orders proposed by the Respondents, with a slight modification as to the effective date of the interim orders.

 

On these premises I order as follows:-

1. It is declared that sections 185(bis) (1), 313 (1) and (2) of the Criminal Procedure and Evidence Act (‘CP & E’) 1938, in so far as they apply to a convicted person who was below 18 years of age at the time of commission of the act that constitutes the offence, are inconsistent with section 18(2) read with section 29(2) of the Constitution and therefore unconstitutional.
2. The declaration of invalidity made above is with effect from the date of the applicant’s conviction (14 February 2011).
3. The declaration of invalidity made in (i) above is suspended until Parliament passes the Child Protection and Welfare Bill or for a period of twelve months, whichever comes earlier.
4. Pending the passing of the Child Protection and Welfare Bill, section 185(bis)(1) of the CP & E is to be read as though it provides as follows:

‘A person, who at the time of commission of the offence is 18 years of age or above, convicted of rape shall, if the Court finds aggravating circumstances to have been present, be liable to a minimum sentence of nine years without the option of a fine and no sentence or part thereof shall be suspended.’

1. Pending the passing of the Child Protection and Welfare Bill, the words ‘other than one specified in the third schedule’ in section 313(1) and  (2) are severed. In so far as a person was below the age of 18 at the time of commission of the act that constitutes the offence, Sections 313 (1) and (2) of the CP & E are to be read as though they provide as follows:

‘(1) If a person, is convicted before the High Court or any magistrate’s court of any offence, the court may in its discretion postpone for a period not exceeding three years the passing of sentence and release the offender on one or more conditions (whether as to compensation to be made by the offender for damage or pecuniary loss, good conduct or otherwise) as it may order to be inserted in recognisances to appear at the expiry of such period, and if at the end of such period the offender has observed all the conditions of such recognisances, it may discharge him without passing any sentence.

(2) If a person is convicted before the High Court or any magistrate’s court of any offence, it may pass sentence, but order that the operation of the whole or any part of such sentence be suspended for a period not exceeding three years, which period of suspension, in the absence of any order to the contrary, shall be computed in accordance with subsections (4) and (5) respectively.”

1. The interim orders in (iv) and (v) above, are with effect from the date of the applicant’s conviction to wit the 14^th of February, 2011.
2. Should Parliament fail to pass the Child Protection and Welfare Bill within the period of suspension, the declaration of invalidity in paragraph (1) will come into effect.
3. The applicant is granted costs against the 1^st and 2^nd respondents jointly and severally, the one paying the other to be absolved.

 

RECOMMENDATIONS

 

I am compelled to make these recommendations not by reason of any ambition to conduct an enquiry into the said judgment of MCB Maphalala J, of the 14^th of February, 2011, which powers I have not, God forbid, but merely for guidance and in the interest of posterity. The conspectus of the present case demonstrate a practical problem which the entire legal fraternity is more likely than not to be confronted with in their everyday endeavours. This is the reality of conflicts between a statute and the constitution.  This problem is more palpable in our situation due to the fact that most of our statutes and laws, existed before the coming into force of the constitution.  Therefore, permit me to say, that conflicts are a must.  That is why I have deemed it expedient to undertake this task at this stage, no matter how late in the day it may be seen, it is still better late, than never.

 

Law cannot administer or enforce itself.  It has to be enforced by institutions and persons constituting these institutions to be able to realize its functions and perform the role of developing our society. The legal profession consisting of lawyers and judges is one of the institutions of administration of law.  We play a very dominant  and pivotal role in this regard. The sole responsibility of interpreting and applying the law rests with the legal fraternity. Whether or not the purpose of law is realized depends on how we discharge this responsibility.  Therefore, our role requires not only an appreciation of our duty to the society, but we must be responsive and sensitive and not indifferent to the needs, hopes and expectations of the community at large and use our technical skills to the service of the society. What is paramount is an awareness and appreciation of the general socio-economic and cultural problems of the society within which we function, and an ability to translate such awareness in actions which assist in the resolution of such problems.

 

We must remember that a judge in adjudication is not infallible.  He is not omni-scient, all knowing, as to know all the circumstances that attend the case.  That is where the role of counsel comes is as a Minister of Justice.  He is obligated to urge all relevant statutes, instruments, authorities and circumstances upon the court, thus guiding and assisting it in coming to a value judgment. That is why counsel is a central factor in the administration of law and justice. He is a minder of justice, an officer of the court, as well as, his clients advocate. In casu, perhaps if applicant’s counsel had been diligent enough to urge all relevant materials, including the constitution, upon the court at the trial stage, we would have been spared the present game of musical chairs.

 

As judges we must remember that we bear the exclusive responsibility for interpretation of our constitution and other laws.  It is obvious that the interpretation of legislation by judges will have an impact on the effectiveness of the legislation attaining its objects.  How we inteprete the law will therefore, determine whether the law can be used as an instrument of change in the society.  In dealing with clear and unambigous provisions of statute like the provisions of sections 185 (bis) (1) and 313 (1) and (2) of the CP & E, two competing approaches have emerged. 

 

The first approach is the literal, intentional, strict constructional or conservative approach.  This approach advocates that courts should apply provisions in their literal and ordinary sense without altering, adding or ignoring them, or treating any part as surplusage. This approach is based on the assumption that the legislature uses the right words to express its intention.  So the court must strictly adhere to the text of the statutory provision and take account of all its words as they stand irrespective of the result therefrom.

 

The second approach is the purposive approach.  This approach enjoins courts to test the application of such clear and unambigous provisions in the light of its consequences to see what kind of result it produces.  If the literal meaning produces a workable result, then it is the correct meaning. If such a meaning is not reasonably workable or runs counter to the object of the statute, or produces a futility, then it is wrong. Courts across national jurisdictions are increasingly moving away from the purely literal approach towards the purposive approach. This is to avoid defeating the intention of legislature in a fast changing world.

 

In the case of Nothman v Barret London Borough Council (1978) 1WLR 220 at 228, Lord Denning, MR declared thus:-

 

“The literal method is now completely out of date.  It has been replaced by the approach which Lord Diplock described as the “purposive approach”.  In all cases now in interpretation of statutes we adopt such a construction as will “promote the general legislative purpose” underlying the provision.  It is no longer necessary  for the judges to wring their hands and say” There is nothing we can do about       it”.  Whenever the strict interpretation of statute gives rise to an absurd or unjust situation, the judges can and should use their good sense to remedy it by reading in, if necessary so as to do what parliament would have done, had they had the situation in mind.”

 

Similarly in the earlier case of Seafood Court Estate Ltd v Asher (1949 ) 2 KB 481 at  498-499, Lord Denning  again stated as follows:-

“Whenever a statute comes up for consideration it must be remembered that it is not within human powers to forsee the manifold sets of facts which may arise, and, even if  it were, it is not possible to provide for them in terms free from ambiguity …..A Judge must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written words so as to give “ force and life” to the intention of legislature”

             

The universally recommended approach to the interpretation of our laws and statutes, including the constitution, therefore, requires that in all circumstances, a court must interprete them  in a way and manner as to yield a just and practicable result, and in order not to defeat the legislative intent of using  the law as an instrument of change in the society. This entails that the court must take into account all the factors and other circumstances of the case, other than mere legal rules.  These are the objective of the rights contained therein, the circumstances operating at the time when the interpretation has to be determined, the future implication of the interpretation, the impact of the interpretation on future generations and the taking into account of new developments and changes in society. See Phumzile Myeza and others (Supra).

 

Therefore perhaps, a court faced with a conflict between the constitution and a statute, like that demonstrated by the criminal statutes herein, could ameliorate the unconstitutionality of those provisions as far as the child is concerned, by interpreting them in such a way as to bring them  in conformity with the interest of the child as elucidated in the constitution, as well as the convention of the Right of the child to which the nation had acceded. This was the approach adopted by Van der Heever JA in the case of  Justice Sipho Magagula and others (Supra),  His Lordship found it fit to impose a suspended sentence in a case of robbery on account of the youthfulness of the Appellant, inspite of the provisions of section 313 (1) and (2) of the CP&E.  Similarly Masuku J, demonstrated this approach in full in the case of Mndzebele (Supra) in paragraph 68, thereof, wherein he stated thus:-

 

[65]  …. It is my considered opinion that the above considerations should, in my view, apply to this country as well.  This is more so because not only have children’s rights been stemmed in the constitution, but the country has also ratified the convention on the Rights of the child.  The ethos of the two documents, should, in my view influence the sentencing process and regime in this country, where children and juvenile offenders are at the stage of being sentenced”

 

It is the peculiar and frail circumstances of the child, that engendered the courts in the panoply of jurisprudence which I have afore demonstrated in this judgment, to advocate a distinction between the treatment of the child and adults in all circumstances, irrespective of what legislation prescribes. I submit that this should be the case even when the law draws no distinction between the two.  I found a need to make the foregoing pronouncement in the interest of the jurisprudence of the Kingdom and for the sake of posterity.  Since I have declared the impugned provisions unconstitutional, the matter ends here naturally.  

 

 

DELIVERED IN OPEN COURT IN MBABANE ON THIS

THE ……………………………. DAY OF ………… 2011

 

 

OTA J.

JUDGE OF THE HIGH COURT