The Laws protecting women and girls from violence in Eswatini prior to the adoption of the 2005 Constitution

 

THE GIRLS’ AND WOMEN’S PROTECTION ACT

Date of commencement: 17th September, 1920.

An Act to provide for the protection of women and girls.

Short title.

1.        This Act may be cited as the Girls’ and Women’s Protection Act, 1920.

Interpretation.

2.        In this Act, unless the context otherwise requires —

“unlawful carnal connection” means carnal connection otherwise than between husband and wife.

Offences in relation to girls under sixteen.

3.        (1)    Every male person who has unlawful carnal connection with a girl under the age of sixteen years or who commits with a girl under that age immoral or indecent acts or who solicits or entices a girl under such age to the commission of such acts shall be guilty of an offence and liable on conviction to imprisonment not exceeding six years with or without whipping not exceeding twenty-four lashes and with or without a fine not exceeding one thousand emalangeni in addition to such imprisonment and lashes.

(2)    If, upon the trial of any person for the crime of rape, the court is satisfied that the accused is guilty of an offence under sub-section (1), but is not satisfied that he is guilty of the crime of rape or of an assault with intent to commit rape, it may acquit the accused of rape and find him guilty of an offence under sub-section (1) and thereupon he shall be liable to the punishments provided therein.

(3)    If upon the trial of any person for the crime of rape or assault with intent to commit rape or for an offence under sub-section (1) insufficient evidence is adduced aliunde as to whether or not the complainant is under the age when her consent would be a lawful defence to the act charged against the accused, the court may decide the question of the complainant’s age from her appearance:

Provided that it shall be a defence to any charge under this section if it appears to the court before whom the charge is brought that the girl at the time of the commission of the offence charged was a prostitute, or that the person so charged was at the said time under the age of sixteen years:

Provided further that this section shall not be deemed to alter or impair the law in regard to the crime of rape upon girls who are of or above the age of twelve years and under the age of sixteen years.

Offences with female idiots and imbeciles.

4.        Every person who —

                    (a)   has or attempts to have carnal connection with any female idiot or imbecile under circumstances which do not amount to rape;

                    (b)   commits or attempts to commit immoral or indecent acts with such female; or

                    (c)   solicits or entices such female to the commission of immoral or indecent acts;

shall be guilty of an offence if it is proved that he knew that such female was an idiot or imbecile, and liable on conviction to the penalties mentioned in section 3.

 THE CRIMES ACT NO 6 OF 1889

Part V

IMMORALITY AND OFFENCES IN PUBLIC PLACES OR PLACES
OF PUBLIC RESORT AND CONTROL OF PLACES OF
PUBLIC RESORT

Date of commencement: 1st August. 1903.

Interpretation.

31.      In this Part unless the context otherwise requires —

“brothel” includes any house, or place kept or used for the purpose of prosti­tution, or for persons to visit for unlawful carnal connection, or for any other lewd, obscene or indecent purpose;

“house” includes a dwelling-house, building, room, out-house, shed or tent;

“owner” includes any person who lets or permits the occupation of any house or place whether in his own right or that of another;

“place” includes any field, enclosure, space, vehicle or boat;

“place of public resort” means a place of entertainment, amusement or refresh­ment, to which the public have access, whether by payment or otherwise;

“public place” means a place to which the public have access and includes a meeting which the public or any section thereof is permitted to attend, but does not include a public resort; (Amended A.18/1971.)

“unlawful carnal connection” means carnal connection otherwise than between husband and wife. (Amended P.17/1962.)

Keeping a brothel.

32.      Any person who keeps a brothel shall be guilty of an offence and on conviction liable to imprisonment not exceeding three years.

Who are deemed keepers of brothel.

33.      Any —

                    (a)   person who appears, acts or behaves as the master or mistress or as the person having the care or management of a brothel whether or not he is the real keeper;

                    (b)   woman found therein who refuses to disclose the owner or manager thereof;

                    (c)   male person resident therein (unless he proves that he was ignorant of the character of the house);

                    (d)   person whose wife resides in or manages or assists in the management thereof unless he is judicially separated and bona fide lives apart from her;

                    (e)   person who is the owner of a house or place and who knowingly lets or after receiving the notice mentioned in section 34 permits such house or place to be kept or used as a brothel; and,

                    (f)    person who knowingly receives the whole or any share of any money taken therein;

shall be deemed to keep a brothel.

Effect of notice to the owner.

34.      If any house or place is used as a brothel written notice thereof given by a police officer of the rank of sub-inspector or above or by any two householders living in the vicinity of the house or place complained of to the owner thereof shall be conclusive proof of know­ledge on the part of the person to whom such notice is given.

Onus of proof.

35.      In any prosecution under this Part the onus of proving that a house or place is being kept or used as a brothel to the knowledge of the owner shall be on the prosecution:

Provided that if it is established to the satisfaction of the court that having regard to the locality and accommodation, the rent paid for the house or place is excessive or exor­bitant, the onus shall be on the accused to prove that he was ignorant that such house or place was kept or used as a brothel.

Contract to let house for a brothel void.

36.      Any contract to let any house or place to be kept or used as a brothel shall be null and void and no action or other legal proceedings for or in respect of rent shall be maintained in respect of such contract.

Contract to let house void if used as a brothel.

37.      Any contract to let any house or place which subsequently to the making of such contract becomes a brothel shall upon the date of such event be determined and become null and void:

Provided that upon proof by the owner of his ignorance that such house or place was so kept or used he shall be entitled to recover the rent up to the date upon which he became aware that such house or place was being kept or used as a brothel.

Summary ejectment when the house is kept as a brothel.

38.      The owner of any house or place used wholly or in part as a brothel shall be entitled to apply to the Regional Administrator of the region in which such house or place is situate for the summary ejectment of any person who may be keeping or using such house or place or any part thereof as a brothel, and such Regional Administrator shall be entitled after enquiry to order the summary ejectment of such person therefrom.

Proceedings when householders complain that a house is used as a brothel.

39.      On the receipt of complaints from not less than two householders of good repute that any house or place in the vicinity of the dwellings of such householders is being kept or used as a brothel the Regional Administrator may require them to attend before him in his office and there declare on oath that the contents of their respective complaints are true and to enter into recognisances in such sum as such Regional Administrator deems reasonable having regard to their pecuniary circumstances to produce material evidence in support of such complaints or upon a similar complaint upon oath being laid before him by any police officer of the rank of sub-inspector or above the Regional Administrator may issue his warrant for the arrest of the person appearing to be the keeper of such brothel to be dealt with according to law.

Regional Administrator may authorise search of house suspected of being a brothel.

40.      (1)    A Regional Administrator who has —

                    (a)   received the complaints, administered the oaths and taken the recognisances in accordance with section 39; or

                    (b)   had laid before him satisfactory information on oath by any police officer of the rank of sub-inspector or above that any house or place is being kept or used as a brothel;

may instead of issuing his warrant for arrest as provided in section 39 issue a warrant author­ising any police officer of the rank of sub-inspector or above to enter such house or place at any time and within such period as shall be limited in such warrant for the purpose of ascertaining the name and identity of the keeper thereof, and for such purpose to demand, search for and seize any account books, receipts, papers, documents or things found in such house or place likely to afford the information sought for.

(2)    Such officer may also demand the name and address of any person found therein, and any person refusing, or failing to give his name or address or giving a name or address which is false in any material particular, or refusing to disclose the name or identity of the keeper of such house or place, or to produce any such book, receipt, paper, document or thing, may be arrested without warrant and shall be guilty of an offence and on conviction liable to a fine of one hundred and fifty emalangeni and in default of payment thereof, imprison­ment for six months.

(3)    No prosecution or conviction under this section shall be a bar to any criminal proceedings under any other section of this Part.

(4)    The issue of a warrant under this section shall not in any way affect the power of a Regional Secretary at any time to issue a warrant under section 39 or any other law.

Parent or guardian procuring defilement of ward.

41.      (1)    Any person who is the parent or guardian of any girl or woman and who —

                    (a)   procures such girl or woman to have unlawful carnal connection with any man other than the procurer; or

                    (b)   orders, is party to, permits or receives any consideration for the defilement, seduction or prostitution of such girl or woman;

shall be guilty of an offence and on conviction liable to imprisonment for five years and if such girl is under the age of twelve years he shall be liable to imprisonment for life and to be whipped.

(2)    In this section —

“guardian” includes any person who has in law or in fact the custody or control of such girl or woman.

Unlawfully defiling women — procuration.

42.      Any person who —

                    (a)   procures or attempts to procure any girl or woman who is not a common prostitute or of known immoral character to have unlawful carnal connection either within or outside Swaziland with any other person;

                    (b)   inveigles or entices any such woman or girl to a brothel for the purpose of unlawful carnal connection or prostitution or knowingly conceals in any such house any such woman or girl so inveigled or enticed;

                    (c)   procures or attempts to procure any woman or girl to become a common prostitute either within or outside Swaziland;

                    (d)   procures or attempts to procure any woman or girl to become an inmate of a brothel in Swaziland or elsewhere;

                    (e)   by threats or intimidation procures or attempts to procure any woman or girl to have any unlawful carnal connection either within or outside Swazi­land;

                    (f)    by false pretences or false representations procures or attempts to procure any woman or girl who is not a common prostitute or of known immoral character to have any unlawful carnal connection either within or outside Swaziland; or

                    (g)   applies or administers to any woman or girl or causes her to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower her so as thereby to enable any person to have unlawful carnal connection with her;

shall, when such offence does not amount to rape or any attempt to commit rape, be guilty of an offence and on conviction liable to a fine of one thousand emalangeni or imprisonment for five years. (Amended A.18/1952.)

Conspiracy to defile.

43.      Any person who conspires with any other person to induce any woman or girl by any false pretences or other fraudulent means to allow any man to have unlawful carnal connection with her shall, where such offence does not amount to rape, be guilty of an offence and on conviction liable to a fine of six hundred emalangeni or imprisonment for two years. (Amended A. 18/1952.)

Householder permitting defilement of girl on his premises.

44.      Any person who is the owner or occupier of any house or place or who has or acts or assists in the management or control thereof and who induces or knowingly permits any girl of the age mentioned in this section to resort to or to be in or upon such house or place for the purpose of being unlawfully and carnally known by any man, whether a parti­cular man or not, shall if such girl is —

                    (a)   below the age of twelve years be guilty of an offence and on conviction liable to a fine of one thousand emalangeni or imprisonment for life and a whipping; and

                    (b)   of or above the age of twelve years and below the age of sixteen years be guilty of an offence and on conviction liable to a fine of one thousand emalangeni or imprisonment for five years. (Amended A.18/1952.)

Detention in a brothel.

45.      (1)    A person who takes or detains any woman or girl against her will to or in —

                    (a)   or upon any premises with intent that she may be unlawfully carnally known by any man, whether a particular man or not; or,

                    (b)   a brothel;

shall be guilty of an offence and liable on conviction to a fine of one thousand emalangeni or imprisonment for seven years.

(2)    A person shall be deemed to detain a woman or girl under this section if with intent to compel or induce her to remain in or upon any premises or any brothel, he withholds from her any wearing apparel or other property to the possession of which she is entitled, or which has been lent or supplied to her by such person or for the purposes of prostitution; and such woman or girl shall be justified in taking away any wearing apparel which is necessary to enable her to leave such premises or brothel. (Amended A.18/1952.)

Abduction of girl under eighteen.

46.      Any person who takes or detains an unmarried girl under the age of eighteen years or causes her to be taken or detained out of the custody and against the will of her father or mother, or other person having the custody of her with intent that she may be unlawfully carnally known by any man, whether a particular man or not, shall be guilty of an offence and on conviction liable to a fine of one thousand emalangeni or imprisonment for five years. (Amended A.18/1952.)

Enticing to commission of immoral acts.

47.      Any person who —

                    (a)   entices or solicits immoral acts by words, signs, cards or in any other way whatsoever, or who knowingly aids or facilitates the commission of immoral acts; or

                    (b)   is a person of notoriously immoral character and exhibits himself in indecent dress or manner at any door or window or within the view of any public street or place or any place to which the public have access;

shall be guilty of an offence and on conviction liable to a fine of six hundred emalangeni or imprisonment for two years.

Male persons living on earnings of prostitution.

48.      (1)    Every male person who —

                    (a)   knowingly lives wholly or in part on the earnings of prostitution; or

                    (b)   in any public place solicits or importunes for immoral purposes;

shall be guilty of an offence and on conviction liable to a fine of one thousand emalangeni or imprisonment for three years and to a whipping not exceeding twenty-four strokes in addition to such imprisonment.

(2)    If it is made to appear to a regional secretary by information on oath that there is reason to suspect that any house or any part thereof is used by a female for the purposes of prostitution, and that any male person residing in or frequenting such house is living wholly or in part on the earnings of such prostitute, such regional secretary may issue a warrant authorising any police officer to enter and search such house and to arrest such male person.

(3)    If a male person is proved to reside in a brothel or to live with or to be habitually in the company of a prostitute and has no visible means of subsistence, he shall unless he can satisfy the court to the contrary, be deemed to be knowingly living on the earnings of prostitution. (Amended A.18/1952.)

Offences in public place or place of public resort.

49.      (1)    A person shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred emalangeni or, in default of payment thereof imprisonment not exceeding six months, who —

                    (a)   in or near a public place or a place of public resort makes use of any insulting, indecent, obscene, blasphemous or threatening language;

                    (b)   in or within sight of a public place, or in a place of public resort, indecently exposes his person or makes indecent signs or gestures;

                    (c)   in or from a public place or a place of public resort, follows or addresses a female in an insulting manner; or

                    (d)   in a public place or a place of public resort and in the hearing of any other person, uses insulting or defamatory language, descriptions, or gestures by speech or other representation, of or to or concerning any person; or

                    (e)   is found loitering at any time in any thoroughfare or public place or near any dwelling house, shop, store or any enclosed place or veld or bush for the purpose of prostitution or solicitation or to the annoyance of the public: (Amended K.O-I-C. 31/1975; K.O-I-C. 27/1977.)

Provided that in any criminal proceedings under this paragraph the onus shall be on the accused to establish that he was not in such thoroughfare or public place or near such dwelling house, shop or store or enclosed place for any of such purposes. (Added P.17/1962; Amended K.O-I-C. 37/1973.)

(2)    Notwithstanding any other law, but subject to section 8(2) of the Swazi Courts Act, No. 80 of 1950, a Swazi Court established under that Act shall have jurisdiction to try and determine any charge for a contravention of subsection (1)(e) hereof and on conviction to impose such penalty as is prescribed in subsection (1). (Added K.O-I-C. 27/1977.)

Control of places of public resort.

50.      Any person who is the keeper or has the management of a place of public resort, and who knowingly permits pimps or prostitutes to frequent such place, or knowingly suffers prostitution to be carried on in or about such place shall be guilty of an offence and liable on conviction to the penalties mentioned in section 47. (Added P.17/1962.)