The legal framework on sexual harassment in Eswatini – a critical review in light of the Maputo Protocol
The legal framework on sexual harassment in Eswatini – a critical review
in light of the Maputo Protocol
Chapter 8
Cite as SD Mavundla & A Strode, The Legal Framework on Sexual Harassment in Eswatini: A critical review in light of the Maputo Protocol, in Sexual Harassment, Law & Human Rights in Africa, Ed E Durojaye, S Nabaneh & T Adebanjo (2023) 231 - 262
Simangele D Mavundla*
Ann Strode**
Abstract
Eswatini
is a state party to this Protocol, having ratified it in 2012. Violence against
women, including sexual harassment, is common in Eswatini. Sexual harassment
undermines the enjoyment of women's rights, such as the right to physical and
mental integrity, work, and health. The law is a tool used to regulate
acceptable behaviour and conduct whilst punishing behaviour and conduct deemed unacceptable.
The Protocol to the African Charter on Human and Peoples' Rights on the Rights
of Women in Africa (Maputo Protocol) obliges member states to adopt measures to
prevent, punish perpetrators and rehabilitate survivors of gender-based
violence.
The purpose of this chapter is to critically
investigate the legal framework of Eswatini in dealing with sexual harassment
in light of article 12 of the Maputo Protocol.
The chapter analyses the laws and policies adopted by
Eswatini to tackle sexual harassment in the public and the private sphere and
gauges their alignment with the Maputo Protocol.
This chapter is significant because it is the first to systematically review the laws dealing with sexual harassment in Eswatini, identify the gaps in practice, and proffer recommendations.
1.1 Background
The United Nations has designated violence against
women (VAW) as a form of discrimination, and a violation of human rights which
causes untold misery on women worldwide, leaving them in pain, fear, or their
lives cut short.[1] The
most common form of VAW experienced by women worldwide has been identified as
intimate partner violence. However, sexual harassment is one of the many forms
of violence that is currently receiving increased international recognition and
attention.[2]
Sexual
harassment is experienced by women in the communities (in the public and
private spheres) they live in and in places of employment and schools. In most
instances, sexual harassment is seen in Eswatini as unwanted sexual behaviour
in the workplace as opposed to an immorally irrepressible conduct requiring
criminal sanctions, and little has been done to tackle it communities.
Some scholars see sexual harassment as a form
of women's sexual domination as it is the economic exploitation of women.[3] One of the most
frightening outcomes of sexual harassment is its effect on girls and women, as
it is believed to be responsible for increased risks of suicide and
post-traumatic stress disorder (PTSD).[4]
The study by the UN Secretary-General on ending VAW revealed that there is a
scarcity of information on sexual harassment as it affects women in the
community; however, the main source of information is found in the labour
sector.[5]
The causes of sexual harassment and VAW, in
general, have been analysed by the feminist school of thought to understand
this phenomenon fully. According to Conroy, it is feminist theories research
that has ensured that sexual harassment is understood for what it is – given
the broader social context that marginalises women and girls whilst privileging
men and boys, particularly those who best ascribe to hegemonic, dominant,
socially accepted hetero-sexual masculinity.[6]
The radical feminists have pointed out that the fight for gender equality would
mean challenging the idea of traditional gender roles, opposing the sexual
objectification of women, and raising public awareness about issues pertinent
to women.[7] As
such, this body of knowledge has successfully focused public and legal
attention on domestic violence issues, which predominately affects women and
has sexual harassment regarded as a gendered offence.[8] Conroy further opines that
sexual harassment is particularly embedded deeply in a culture of heterosexism
and misogyny.[9]
The author insists that only the use of feminist lenses can contribute to the
study of sexual harassment.[10]
As such sexual harassment will be unmasked as i) a tool used for gender conformity,
ii) a tool used for policing (hetero)sexuality and lastly iii) an assertion of
male dominance.[11]
The Kingdom of Eswatini is a highly
patriarchal country with a legal system that recognises both formal law and
traditional practices.[12]
There are aspects of norms in both formal law and traditional practices that elevate
males as superior to females, e.g. marital power and the practice of
primogeniture.[13] Mavundla
opines that due to patriarchy, Eswatini males have dominion over female members
in society and have ultimate control as decision-makers.[14]
Since women in Eswatini occupy a subordinate role in society, it is not
surprising that discrimination and violence against women (VAW) have persisted,
causing serious social problems in the enjoyment of their social, economic and
cultural rights.[15]
There
is a plethora of literature looking into domestic violence and sexual offences
in Eswatini.[16]
The country's state report to the UN Human Rights Council of November 2021 revealed
that Eswatini was faced with a high number of gender-based violence incidences
disproportionately affecting women and girls as opposed to their male counterparts.[17]
The report revealed that 1 in 3 females experienced some form of sexual abuse
by the age of 18 years and that 48 per cent of women reported having
experienced some form of sexual violence in their lifetime.[18]
Despite policies and legislation enacted to address this scourge, these are the
circumstances under which Eswatini women live.
However, there is a dearth of literature addressing
sexual harassment in Eswatini. The nature and scope of sexual harassment cannot
be ascertained, and criminal matters on this problem are almost non-existent
except for a few matters in the labour sector. The only research that could be
located is a baseline report on sexual harassment in the workplace in Eswatini
published in 2018.[19]
In Eswatini, sexual harassment is rampant in both the private and public
sectors.[20]
The targets of sexual harassment tend to be women, even though not entirely
exclusively. For instance, a 2018 study found that 19.6 per cent of females
experienced sexual harassment in the workplace compared to 13.8 per cent of
males and that perpetrators were primarily members of the opposite sex.[21] It
found that most of the victims of sexual harassment in the workplace did not
report or lay a formal complaint, even though they knew their rights.[22]
The most recent example of sexual harassment was that
of a Director of Social Welfare in the Deputy Prime Minister's Office who was
reported to have been arrested and charged with, amongst other things, sexual
harassment and indecent assault for allegedly demanding sexual favours from a
female subordinate as a quid pro quo for approving her participation in a
training course in the Republic of South Africa (RSA).[23] Also, reports of sexual harassment of employees in
the textile industry have been widespread.[24]
This is because sexual harassment of women has historically
been prevalent in the context of Eswatini.
1.2 Definition
There is no
universally agreed-upon definition for what is – and what is not – sexual
harassment. However, different conducts are classified as sexual harassment. In
this regard, Garner defines sexual harassment as a type of employment
discrimination consisting of verbal or physical abuse of a sexual nature. The
employee is usually at the receiving end of being subjected to unwelcome verbal
or physical sexual behaviour that is severe or pervasive.[25]
This is how sexual harassment was viewed over the years in Eswatini; as a matter
at the instance of the employer-employee relation and utilised in labour
relations.
Other scholars have a
more encompassing definition of sexual harassment, which cater for misconduct
in the workplace and beyond the workplace. For instance, sexual harassment is
defined as verbal or physical sex-based behaviour that is unwelcome to the recipient,
thus creating a discriminatory and offensive environment.[26]
Another form of harassment that is common in the workplace is quid pro quo
sexual harassment which is defined as sexual harassment in which the
satisfaction of a sexual demand is used as the basis of an employment decision.[27]
Of importance is that
the UN Committee on the Elimination of Discrimination against Women has
purposely defined the phrase sexual harassment in General Comment (GC) 19.[28]
The Committee emphasised that sexual harassment is a form of gender-specific
violence against women. In paragraph 18 of the GC, the Committee provides that:
Sexual harassment
includes such unwelcome sexually determined behaviour as physical contact and
advances, sexually coloured remarks, showing pornography and sexual demand,
whether by words or actions. Such conduct can be humiliating and may constitute
a health and safety problem; it is discriminatory when the woman has reasonable
grounds to believe that her objection would disadvantage her in connection with
her employment, including recruitment or promotion, or when it creates a
hostile working environment.
Thus, the Committee has shone the light on
sexual harassment as evidence of women's inequality vis-a-vis men and a case of
women's subordination which impairs women's right to equality. The Committee
delved into quid pro quo and harassment that results
in a hostile work environment. The following section deals with the normative
framework on sexual harassment that Eswatini is a state party to; however, the
Maputo Protocol is used as the yardstick to interrogate Eswatini's obligations
and compliance.
1.3 The normative
framework on Sexual Harassment – Maputo Protocol
The Protocol to the African Charter on Human and
Peoples' Rights on the Rights of Women in Africa is one of many international,
regional, and sub-regional treaties that promote and protect the rights of
women and girls from sexual harassment. The stated objective of this chapter is
to analyse the normative framework of the Maputo Protocol as it relates to
sexual harassment; however, in passing, it highlights some of the key
international norms promoting and protecting women's freedom from sexual
harassment.
Eswatini
belongs to the community of nations and is known for being slow to ratify
international and regional instruments. However, once the government of
Eswatini make its mind to ratify, the country normally ratifies without any
reservations. As such, Eswatini is a member state that ratified both the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) [29] and
the Protocol to the African Charter on Human and Peoples' Rights on the Rights
of Women in Africa (Maputo Protocol).[30] The country ratified CEDAW
in 2004 – 23 years later after it was opened for ratification. Equally, the
Maputo Protocol was ratified by Eswatini on 5 October 2012, almost a decade
after it was opened for ratifications.[31]
For
an International Agreement or Convention to be applicable in Eswatini, it must
be domesticated after ratification. Section 238 (2) of Eswatini's Constitution
lays down the procedure to be followed for these Agreements and Conventions to
have a force of law in Eswatini's jurisdiction.[32]
It states as follows
..an international agreement executed by or
under the authority of the government shall be subject to ratification and
become binding on the government by..
(a) An Act of Parliament, or
(b) A resolution of at least two-thirds of the
members at a joint sitting of the two chambers of Parliament.[33]
The government
comprises three arms: the executive, legislature, and judiciary. It must be
noted that Eswatini's Parliament consists of the House of Assembly and the
House of Senate. The Parliament has been accused of slacking off on its duty,
which includes repealing laws inconsistent with the Constitution of 2005 or
enacting laws that would enforce specific provisions of the constitution,
particularly those that address inequality. This is despite the Constitution
placing an obligation on government in section 28(2) calling the government to
provide facilities and opportunities to enhance the welfare of women to enable
them to realise their potential and advancement.
The two instruments,
CEDAW and Maputo Protocol, are binding on Eswatini. However, domestication may
be an issue, as will be revealed below. A closer look at CEDAW reveals no
express mention of the phrase 'sexual harassment.' However, article 5 of CEDAW
impliedly deals with sexual harassment, amongst other things. It provides that states
parties like Eswatini should take and adopt measures necessary to modify social
and cultural patterns of conduct that view each gender as superior or inferior
and eliminate stereotypes on gender.
In 1992, sexual harassment was explicitly
mentioned and defined as gender-specific violence against women in General
Comment 19 by the Committee of the Elimination of Discrimination against Women.[34]
Another critical milestone occurred in 1995 when the Fourth
World Conference on Women, also known as the Beijing Platform for Action,
included sexual harassment for the first time in the chapter on violence
against women.[35]
This bold move cemented sexual harassment as an issue worthy of public
discourse.
The Maputo Protocol, on the other hand, seems
to extend the protection offered to women in the CEDAW in that it expressly
prohibits all forms of VAW, including sexual harassment. The following articles
enunciate women's rights to non-discrimination and freedom from violence: articles
1, 2, 3 and 4.
Article 1 of the Protocol is the definitions
section. In article 1(f), discrimination against women (as sexual harassment is
and amounts to discrimination against women) is defined as any distinction,
exclusion or restrictions, any differential treatment which is based on sex
whose aims and effects compromise or rather destroy the recognition, or
enjoyment, or the exercise by women of their human rights and fundamental
freedoms in all spheres of life. Also, the article deems all acts perpetrated
against women which cause physical, sexual, psychological and economic harm,
including threats of such acts to be VAW.[36]
Sexual harassment has the effect of subjecting women to harm that is physical,
sexual, and emotional anguish. It also has the effect of subjecting women to economic
strain, especially when women are overlooked in promotions for declining sexual
favours from superiors or when their work environment has become hazardous, and
they are compelled to quit work.
Article 2 enjoins state parties to the
Protocol to adopt all relevant measures such as legislative, institutional and
other measures to combat all forms of discrimination against women. In
particular, states are called upon to commit to modifying social and cultural
patterns of conduct of both men and women through education strategies so that
harmful and traditional practices based on sex stereotypes and gender roles are
eliminated.[37]
In article 3, the Maputo Protocol enshrines
women's right to dignity, and as such, women have been accorded the right to be
respected and their right to personal development without any hindrances,[38]
and states are to ensure that this happens by adopting and implementing
appropriate measures prohibiting women's exploitation and degradation.[39]
The article states that appropriate measures should be implemented to protect a
woman's right to respect for her dignity and her protection from all forms of
violence, particularly sexual and verbal violence.[40]
This article indeed covers conducts that are sexual harassment in nature
directed against women and girls.
Lastly, article 4 enjoins state parties to the
Protocol to adopt and implement all necessary measures that will ensure every
woman's right to life, integrity and security of her person while prohibiting
all forms of exploitation against women as well as inhuman, degrading
punishment and treatment.[41]
Therefore, sexual harassment can be said to be interfering with a woman's right
to life where she has PTSD or suicidal thoughts as a result of it. It is
without question that sexual harassment is demeaning to women and is inhumane,
degrading, and taking away from their dignity.
Article 12 of the Maputo Protocol is at the
heart of this chapter's analysis. The Protocol expressly deals with the problem
of sexual harassment in article 12(1) (C)-(d) and article 13(c).
The Maputo Protocol's article 12(1) (c)
provides that "states parties shall take all appropriate measures to
protect women, especially the girl-child from all forms of abuse including
sexual harassment in schools, and the educational institutions and provide for
sanctions against the perpetrators of such practices". In article 12(1) (d)
it provides that states should provide access to counselling and rehabilitation
services to women who suffer abuse and sexual harassment.
Article 13(c) of the Protocol provides that
states parties shall adopt and enforce legislative and other measures to
guarantee women-equal opportunities in the workplace, career advancement, and
other economic opportunities. In this respect, the states shall ensure
transparency in the recruitment, promotion and dismissal of women and combat
and punish sexual harassment in the workplace.
The general focus of article 12 cannot be
underestimated as it ensures that state parties safeguard the right of women
and girls to education without having to face harassment. States are to pull
all the stops to ensure that women and girls do not become victims of sexual
harassment. Also, the import of article 13 is that, in general, women's rights
to economic and social welfare must be guaranteed by states by eliminating
sexual harassment. Article 12 refers to the education setting, however, the
provision can be applied to other aspects of endeavour where women encounter
sexual harassment. More importantly, it is argued that the combine reading of
article 12 with other provisions of the Maputo Protocol clearly suggests that
the Protocol considers sexual harassment as a violation of women's rights.
This chapter zeros in on the obligations of
Eswatini concerning the provision of counselling and rehabilitation services to
victim of sexual harassment as outlined in article 12(1)(d). This will be
analysed in the domestic law and the cases that follow below.
1.4 The legal framework on sexual harassment
in Eswatini
Eswatini has 'a dual legal system' comprising Roman-Dutch Common Law as
modified by statutes and Eswatini law and custom.[42]
The 2005 Constitution in section 252 provides that "the principles and
rules that formed, immediately before 6 September 1968, the principles and the
rules of Roman-Dutch Common law as applicable to Swaziland since 22 February
1907 are confirmed and shall be applied and enforced as the common law of
Swaziland except where and to the extent that these principles or rules are
inconsistent with this constitution or a statute." As a result, at some
point in the past, Eswatini and South Africa shared a common legal system.
1.4.1 The law on
sexual harassment prior to the adoption of the 2005 Constitution
Prior to the 2005 Constitution and the 2018 SODV Act, the Roman-Dutch Common Law, the Crimes Act of 1889, and the
Girls' and Women's Protection Act of 1920 dealt with sexual abuse of women
and girls in the country. They criminalise sexual harassment not in such
obvious terms but as indecent assault.
a)
Common-Law
The Common Law of Eswatini includes judicial decisions
of superior courts, otherwise known as judicial precedents, based on the
interpretation of existing law.[43] Common-Law
protected women from gender-based and sexual violence in 4 ways: common
assault, assault to do grievous bodily harm, indecent assault, and crimen
injuria.
The Common Law prohibited common assault
against anyone. The offence is committed in two ways; either by actually
applying force to a victim's body or making the victim believe that force was
about to be unleashed on him or her. In today's terminology, the offence of
common assault is at par with physical abuse or violence. It is unclear whether
touching a person's body would result in prosecution as the infliction of
physical harm and intention elements may be missing or hard to prove in such a
scenario prevalent in sexual harassment offences. Common assault results when
force has been administered to another person's body directly or indirectly.[44]
This crime could also be committed through
inspiring fear in another.[45] The
crime may be committed by any act, gesture or words, causing a belief that the
attack will occur.[46] The
attacker must have had an intention to assault the victim, or where the assault
takes the form of inspiring fear and apprehension of an assault, an intention
to arouse the apprehension of harm must be proved.[47]
Also,
the common law prohibited assault with intent to do grievous bodily harm (GBH),
a kind of assault that involves serious physical injury to the victim's body.[48] For
the assault to constitute GBH, there must have been an intent to do more than
inflict the casual and comparatively insignificant and superficial injuries
that ordinarily follow upon an assault. The stipulation is that the assault had
to be accompanied by an intent to injure in serious respect.[49]
Further, the Common Law prohibited indecent assault
against anyone. This crime was directed against those who would seek to harass
others sexually. Indecent assault is defined as an assault that by nature or
design is indecent.[50]
Hence, indecent assault is a generic crime corresponding to most forms of
unlawful sexual encounters other than rape.[51] The following categories of
acts are punishable as indecent assaults, although some may be seen to be as
traumatic and severe as penile sexual violence if not worse:
°
"Failed rapes, for instance, when x in
seeking to rape Y, may not succeed in inserting his penis in Y's vagina. He
does not commit rape.[52] He
may be charged with attempted rape as his actions amounted to the commencement
of the offence of rape. However, the touching will only attract an offence of
indecent assault.[53]
°
Quasi-rapes, here the reference is made to the
various acts which have characteristics of rape but are not punished as such
due to the definitional limitation of rape.[54] Quasi-rapes occur when
something else other than the penis is inserted into the vagina or where the
penis is inserted into any orifice of the body other than the vagina, and these
cases are always treated as indecent assault.[55]
°
Molestation, here reference is being made to
the touching or fondling of persons in an indecent (which means sexual) manner
may constitute the offence of indecent assault."[56]
The crime of indecent assault is thus directed at
those who seek by touching to engage another party in erotic activity without
the other person's consent.[57] It
usually involves the touching of the private parts of the other person. It is
also directed at those who may apply force or inspire fear by threats or
conduct such that the victim has the apprehension that such force is eminently
to be applied.[58] The
offence of indecent assault generally attracts a lesser punishment than rape,
usually a fine or imprisonment depending on the discretion of the judicial
officer.
Crimen injuria is another common law offence that is
recognised in Eswatini. It is defined as the intentional unlawful impairment of
the dignity or privacy of another person.[59] This crime is used to
prosecute certain offending conduct, including emotional or psychological
abuse. The essential elements that need to be proved for this crime/offence
include intention, unlawfulness, and impairment of the dignity of another. Some
definitions include a qualification that the impairment must be severe since
the law does not concern itself with trivialities 'de minimis non-curat lex.' Usually, common law offences sentences
are left to the discretion of judicial officers to determine. Therefore,
penalty or sentence will be at the discretion of the presiding official;
however, if the accused is a first-time offender, assuming that the offender is
found guilty of the charge, the sentence will probably be a suspended sentence.
In addition to the Common Law, the country had criminal laws inherited from the colonial era aimed at protecting women from gender-specific violence. Moreover, these are the Crimes Act and the Girls and women Protection Act which remained in force until August 2018 when the SODOV Act was enacted.
b)
The Criminal Law
The Crimes Act No.6 of 1889 prohibits the sexual
exploitation of women by proscribing immorality and offences in public places
or places of public resort and control of places of public resort. Some of the
offences created by this legislation include procuring defilement of ward or
minor, defiling women who are not common prostitutes, conspiracy to defile
women and or girls, and abduction of girls under eighteen.
The Girls and Women's Protection Act 39 of
1920 criminalises certain aspects of sexual violence against women and girls.
It is reactionary by character. It serves to punish perpetrators and as a
deterrent to would-be offenders. Some of the conduct proscribed by the Act
includes offences such as statutory rape and the sexual exploitation of
mentally impaired females.[60] In
addition to the criminal law, the country has adopted labour laws to protect
and promote employees and employers' rights.
c)
Labour Laws
There are two major legislation in the country
regulating the relationship between employers and employees. These laws are the
Employment Act of 1980 as amended and the Industrial Relations Act of 2000 as
amended. The legislation does not address sexual harassment as an offence nor
sexual violence. Both laws protect against discrimination – the Industrial
Relations Act spells out that no discrimination may occur on account of sex, gender[61]
and even pregnancy[62]
in the workplace, whereas the Employment Act mentions marital status and sex.[63]
However, an addendum to the Industrial
Relations Act explicitly provides for sexual harassment in the workplace. The
Code of Good Practice of 2005,[64]
provides as follows:
A material breach
means a serious breach that goes to the core of the contract. The refusal to
pay wages, verbal or physical abuse, sexual harassment and discrimination are
examples of conduct that amount to a material breach by the employer of the
employment contract.[65]
While the inclusion of the phrase sexual harassment as
an example of a material breach of the employment contract is applauded, there
is very little guidance on what it means and how the employee can go about
reporting it. The proviso falls short in that it does not cater for counselling
and rehabilitation services to victims as envisaged by the Maputo Protocol. This
explains why reported cases of sexual harassment in the work environment are so
low in the country compared with other countries. To further elucidate, in
South Africa, cases of sexual harassment have been tried at every court level
up to the highest court in that land. Discussed below is the case of Mcgregor.
i)
McGregor v Public
Health and Social Development Sectoral Bargaining Council and Others[66]
The Constitutional Court of South Africa decided on
sexual harassment in a 2021 case; since it is a landmark case, it is worth
looking into. In McGregor, the appellant, a medical doctor, was
found guilty of misconduct for sexually harassing a newly qualified doctor who
was completing an internship under his supervision. The misconduct arose as a
result of a) making unwelcome suggestions of a sexual nature, b) daring the victim
to remove her clothes and swim naked, c) inappropriately pressing himself
against the victim while demonstrating how to carry out a procedure, and d)
inappropriately touching the victim's leg.[67]
McGregor was not happy with his dismissal and
referred the matter to arbitration as a matter of unfair dismissal. The
arbitrator found that McGregor was guilty of three out of the four charges of
sexual misconduct. He then concluded that the dismissal was procedurally and
substantively unfair and awarded McGregor compensation of six months'
remuneration. He appealed to the Labour
Appeal Court, arguing that his conduct neither constituted sexual harassment
nor did it warrant dismissal. The Court
found him guilty as charged with sexual harassment and overturned the
arbitrator's decision to find McGregor guilty of three out of the four charges
and the finding that the dismissal was substantively unfair whilst noting that
there were procedural challenges with the disciplinary process. He was
unsatisfied and appealed to the Constitutional Court, and the Constitutional
Court dismissed his appeal. Before dismissing the appeal, the Constitutional
Court observed that "sexual harassment is the most
heinous misconduct that plagues a workplace".[68] According to Pierre de Vos, the Court
emphasised the power imbalance between the two parties in this case and opined
as follows:
"Not only does the power imbalance tip
according to the professional positions, but it topples in terms of gender at
the intersection of age. The Labour Court itself noted that it is impossible to
'imagine any circumstances where given the nature of the relationship [between
them], [McGregor's] conduct vis-à-vis an intern would be appropriate'.
Moreover, it went on to state that the conduct would have been 'grossly
unacceptable' no matter whom it was directed at, but '[t]he disparity in age
and seniority is clearly an aggravating factor."[69]
The Constitutional Court further observed the negative effect sexual
harassment has on the victim and opined that not only "is it demeaning to
the victim", but it also "undermines their dignity, integrity and
self-worth, striking at the root of that person's being".[70]
It pointed out that sexual harassment "strips away at the core of a person's
dignity" whilst "promoting a culture of gender-based violence that
dictates the lived experiences of women and men within public and private
spaces and across personal and professional latitudes.[71]
This indicates how the judiciary in South Africa is involved in remedying and
rooting out gender-specific violence in that country.
1.4.2 Eswatini Laws on
Sexual Harassment (after the adoption of the 2005 Constitution)
At the apex of the current laws protecting women against sexual
harassment is Eswatini's Constitution 001 of 2005, followed by the Sexual
Offences and Domestic Violence (SODOV) Act 15 of 2018.
a)
The Constitution of
2005
The country's Constitution came as a result of a
protracted struggle following the abrogation of the Independence Constitution
of 1968. Eswatini's supreme law and bill of rights were repealed through a
decree by King Sobhuza II, who cited that it was unworkable through the
Proclamation to the Nation of 1973.[72] He then assumed all
legislative, executive and judiciary authority over all of Eswatini/Swaziland
as it was known then.[73]
The vacuum created was filled with more decrees and later with statutory laws.
Section 2(1) provides that "This Constitution
is the supreme law of Swaziland and if any other law is inconsistent with this
Constitution that other law shall, to the extent of the inconsistency, be void."
While the 2005 Constitution is the supreme law of the land, and all laws
inconsistent with it are deemed null and void, it does not address the element
of conduct inconsistent with the constitution; thus, gender-specific illegal
conduct remains unprohibited.[74]
This glaring omission is pacified in section 20 – the equality clause, where it
provides that:
"All persons are
equal before and under the law in all spheres of political, economic, social
and cultural life and every other respect and shall enjoy equal protection of
the law. (2) For the avoidance of any doubt, a person shall not be discriminated
against on the grounds of gender, race, colour, ethnic origin, tribe, birth,
creed or religion, or social or economic standing, political opinion, age or
disability. 3) For the purposes of this section, "discriminate" means
to give different treatment to different persons attributable only or mainly to
their respective descriptions by gender, race, colour, ethnic origin, birth,
tribe, creed or religion, or social or economic standing, political opinion,
age or disability."
Eswatini's Constitution in section 20 proves to be a clear
domestication of article 1 of the Maputo Protocol by prohibiting discrimination
based on gender. The Constitution does not prohibit discrimination based on sex;
however, this chapter contends that the prohibition under gender deals with the
omission of sex as a ground that exclusion may be made. As alluded to above,
sexual harassment, as per feminist view, is bound up in gender stereotypes and
gender roles that create a gendered and unequal society at the expense of
women.[75]
In section 18, the 2005 Constitution provides
everyone's right to be protected from inhuman or degrading treatment. It states
that the dignity of every person is inviolable,[76]
and that no person may be subjected to torture or inhuman or degrading
punishment.[77] This
provision of the Constitution domesticates the Maputo Protocol's article 3 and
tackles sexual harassment in so far as it subjects the victim to indignity and
can be said to be inhuman and degrading.
There
is no specific proviso in the Constitution that addresses sexual harassment;
however, it provides rights and freedoms for women in section 28. It provides
that women of Eswatini have the right to equal treatment with men, and that
right includes equal opportunities in political, economic and social
activities.[78] In
the case of Sacolo v Sacolo[79] the
court abolished marital power of the husband over the body and affairs of the
wife as inconsistent with the provision of section 20 of the Constitution on
equality and declared the practice unconstitutional.[80] The provision domesticates article
2 of the Maputo Protocol is so far as it stumps out gender stereotypes that are
used to perpetuate discrimination against women in the political, economic and
home spheres. Below, provisions of the SODV Act are analysed to gauge whether
the state has implemented measures that protect women from violence, as
envisaged in the Maputo Protocol.
b)
The Sexual Offences and Domestic Violence (SODV) Act 15 of
2018
The SODV Act came about as a response to public outcry
over the prevalence of domestic and sexual violence offences against women and
children, which was a contributing factor to the high prevalence of HIV among
adolescent girls and young women in the Kingdom. [81]
The Act, as it stands, criminalises all forms of
violence, such as domestic violence, intimate partner violence, and sexual
violence.[82] It is wide in its
scope than any other law that has ever purported to protect women and girls
from violence. It introduces new crimes such as unlawful stalking,[83]
prohibits the distribution of pornographic materials in breach of privacy,[84]
sexual assault,[85] flashing
of genital organs,[86]
domestic violence,[87]
and sexual harassment.[88]
The only legislation in the country that expressly criminalises sexual
harassment in Eswatini is the 2018 SODV Act.
The Act
expands the definition of sexual abuse to include any sexual conduct that
abuses, humiliates, degrades, or violates the sexual integrity, dignity and wellbeing
of the victim. The Act is viewed as an instrument that domesticates the Maputo
Protocol, and indeed, it does provide adequate protection as envisaged in the
Maputo Protocol.
The SODV Act in section 48 defines sexual harassment
as any unsolicited act of physical intimacy, including but not limited to
physical contacts such as patting, pinching or touching in a sexual way or
unnecessary familiarity such as deliberately brushing against another.[89]
The Act provides stiffer penalties for anyone found guilty of sexually
harassing another; a fine of twenty-five thousand Emalangeni or imprisonment
for a period not exceeding ten years or both.
The Act further defines sexual harassment as
any unsolicited demand or request for sexual favours from the other person, whether
directly or by implication.[90]
Another conduct that the Act classifies as sexual harassment is any other
unwelcome conduct of a sexual nature in relation to the other person, including
but not limited to offensive telephone calls and indecent exposure.[91]
The
Act makes the conducts outlined in section 48 (2)(a)-(c) to amount to illegal
conduct only if accompanied by an intention from the perpetrator to offend,
humiliate, intimidate the complainant or the circumstance is such that a
reasonable person would have assumed the conduct of the perpetrator intended to
offend, humiliate and intimidate the complainant.[92]
The SODV Act alludes to the need for survivors
of sexual offences to be informed of counselling services. It places this duty
on the shoulders of the police officer investigating the offence.[93]
The SODOV Act can be said to have been enacted with the Maputo Protocol
provisions in mind in that it for the first time that the statute books of
Eswatini have the phrase 'sexual harassment.' It touches on the need for a
police officer to inform the victim of a sexual offence of counselling
services. It further requires a Magistrate or presiding officer to complete a
proforma form that addresses details about counselling and the use of Post
Exposure Prophylactics (PEP) in domestic violence matters.[94]
While the Act seems to be comprehensive in its
intent to stem out sexual harassment, there seems to be little implementation
of the provision of section 48. Though sexual harassment is prevalent in the
Kingdom, the enquiry conducted in this study revealed that the SODV Act was not
being frequently used to charge perpetrators of sexual harassment acts.
Instead, companies and institutions' work policies were utilised to address
sexual harassment as a form of misconduct. One example of such a policy is discussed here, and it is the Sexual
Harassment Policy of the University of Eswatini (UNESWA).[95]
Including this institution's policy is relevant and makes the research
significant in that Article 12 of the Maputo Protocol protects women's rights
to education and training.
1.4.3 Institutional Policy on Sexual Harassment
Before looking into the provisions of
this policy, it is worth noting that the university has not been spared from
allegations of sexual harassment taking place on its premises. Some of the
allegations range from sexual harassment of students in return for marks and
sexual assault.[96]
This particular allegation has been a prominent feature in the Students
Representative Council (SRC) reports to the university, where the university
was asked to set up an enquiry.[97]
Thus, SRC reports have suggested that Sexual abuse by lecturers is one kind of
abuse, affecting mainly the female students, occurring in the university but
goes without being officially reported.[98]
Another example is
that of the University Assistant Registrar, who was charged in 2017 with
multiple counts of sexually abusing students.[99] He
was accused of making sexual advances to students, asking for hugs and kisses,
and allegedly showing his private parts to some female students.[100]
The Assistant Registrar is reported to have denied the allegations levelled
against him, and citing that he remembered only one incident where he hugged a
female student congratulating her for her good performance, and the student did
not see the hug as sexual harassment.[101] He
approached the court seeking an order restraining the university's management
from proceeding with a disciplinary hearing against him.[102] In
his papers to the court, he stated that the Registrar had given him a verbal
warning over that one incident he recounted, and, should not have happened.[103]
The matter then disappeared from the public after that. This goes to show that
indeed the institution of higher learning was in serious need of an internal
measure that would ensure that sexual harassment is punished and snuffed out
from the institution's culture. This culture of impunity provides a fertile
ground for incidents of sexual harassment in higher education institutions.
The
UNESWA Harassment Policy is not binding on the wider Eswatini community but the
university community. It purports to align the university's response to sexual
harassment with national laws and international standards.[104]
It is said to be informed by the Maputo Protocol amongst other international
instruments. In the UNESWA's definition of sexual harassment, the definition
provided in the SODV Act is adopted verbatim and then adds to it as follows:
'sexual harassment is any uninvited, unwanted, unsolicited, and
unacceptable move or behaviour with sexual orientation, including any offensive
verbal and non-verbal objectionable advances, suggestive whistles, shouts and
suggestive comments, physical contact, and gestures, suggestive of sexual
desire or request or demand for sexual favour, or forced or coerced sexual
intercourse or rape. This includes such behaviour that causes discomfort or
humiliation and creates a threatening and intimidating study or work
environment, interfering with the academic or work performance of the person to
whom it is directed.'[105]
The policy has prioritised
prevention strategies against sexual harassment. It talks of mandatory
education, information sharing, and creating awareness about the scourge of
sexual harassment, which will lead to a conducive work and learning
environment.[106]
It lays down procedures and processes for reporting and responding to sexual
harassment complaints. The policy establishes the University Sexual Harassment
Committee to handle all allegations of that nature. The policy encourages
victims also to report incidents of sexual harassment in line with the SODV Act
of 2018. It makes it mandatory that victims of sexual harassment seek
counselling and that there would be psychosocial support made available to all
survivors, and that cases would be referred to other stakeholders to ensure
that survivors get support in rehabilitation.[107]
The policy of this institution has strived to align
national laws and international laws in it, and thus it can be said that at
face value, it offers the protection envisaged by the Maputo Protocol in
article 12 (1)(d). It looks like now the allegations of the University's SRC on
sexual harassment of female students by lecturers for marks would be addressed
provided the policy is popularised amongst learners in all levels of study.
Also, the university will be in a better position to carry out a parallel
disciplinary process even if the matter is taken to court. The section below
looks at judicial decisions by the Courts of Eswatini made on sexual harassment
matters.
1.5 Judicial
decisions
The judiciary plays a role in ensuring that
laws that are not consistent with the constitution are declared
unconstitutional and may be seen from time to time engaged in judicial
activism.[108]
According to section 138 of the 2005 Constitution, the judiciary is independent
and administers justice in the country. The superior courts have jurisdiction
over all matters; civil, criminal and constitutional matters. Below, matters
decided by the courts in Eswatini are analysed to gauge their alignment with
the Maputo Protocol.
1.5.1 A note on methodology
The methodology used to collect and
collate cases and information involved searching databases and conducting
interviews with court officials. There is currently no publishing of cases from
the judiciary in Eswatini – even though the country belongs to the common law
jurisdiction where prior decisions of superior courts set precedents for future
cases and for lower courts to follow. However, an effort has been made to come
up with a judiciary database for the country in a platform called "The
Swazi Legal Information Institute" otherwise known as 'SwaziLii' available
on https://swazilii.org [109].
The
keywords used in the database search were 'Sexual Harassment', and the search
scope was from 2019 to 2021. Only one case was found to be relevant from the
search results. There were then interviews conducted to locate cases. The
Deputy Registrar of the High Court of Eswatini[110]
assisted with finding one case and arranged that a Principal Magistrate was
interviewed and helped with locating cases which entailed a physical search.[111]
There were 211 completed cases to look from where the accused persons had been
charged in terms of a provision in the SODV Act. However, none of the cases
touched on a charge in terms of section 48 of the SODV Act (sexual harassment);
hence only two cases were available for consideration in this study. One case came
from SwaziLii and the other from the Deputy Registrar. These are discussed
below.
1.5.2 Case law findings
A closer look at
cases in Eswatini on sexual harassment revealed that incidents of sexual
harassment are frequently handled as a labour issue and as work misconduct
rather than criminally reprehensible illegal conduct as envisaged by the SODV
Act. Two cases decided by the courts in Eswatini were found since the coming
into force of the SODOV Act in August of 2018. These are the cases of Kunene v The Teaching Service Commission
and Dlamini v ESWACAA, discussed
below, respectively.
a)
John Kunene v The Teaching Service Commission and 2
others[112]
The case of John Kunene was a matter where the Applicant
alleged unfair dismissal by Eswatini's Teaching Service Commission. It is a
long-winded case that resulted from events dating back to 2004.
The Applicant Mr John Kunene was charged with sexual harassment by
proposing love to and grabbing the buttocks of a student named Miss Nomfundo
Mbuli. He challenged his dismissal after he was found guilty of misconduct. The
Eswatini Industrial Court last heard the matter in December 2020, and the
verdict was delivered in June 2021. In this case, the Court observed that the
problem with the Applicant's case lay in how he initially challenged his
dismissal by running to the High Court instead of taking the matter to the
Conciliation, Mediation, and Arbitration Commission (CMAC) for a speedy trial.[113]
When the Court came into the merit
of the case, it found that on the sum of the evidence before it, the Applicant
Mr Kunene had relentlessly pursued the student Nomfundo over a long period of
time, even after he was reprimanded and warned to desist from such immoral
conduct – he did not take the warning and the reprimands.
Also, the court observed that the incident of Mr Kunene inappropriately
touching Nomfundo's buttocks, although having happened some 16 years back, must
have been a traumatic experience for her so much that she still wept when she
recalled and testified about it in the last hearing.[114] The Court went on to find that that the Respondent
had on a balance of probabilities established the grounds for Mr Kunene's
dismissal.[115]
This is because the court found that the allegations levelled against the
Applicant were very serious and real and that they were not a conspiracy like
Mr Kunene tried to make the Court believe.
The court concluded by observing
that children have a right to education and that this right is based on the
assurance of a safe and nurturing environment – free from sexual harassment and
abuse. It pointed out that it was unfortunate that at this day and age, there
were still cases of abuse and sexual harassment of the girl-child in schools;
and that a teacher in the position of the Applicant Mr Kunene who abused the
trust bestowed upon him by parents of students and society at large certainly
does not deserve to be in the education system.[116]
b) Sabelo
Dlamini v Eswatini Civil Aviation Authority (ESWACAA) and another[117]
In the case
of Sabelo Dlamini, the Applicant
approached the Eswatini Industrial Court on an urgent basis requesting that his
letter of dismissal from the First Respondent be set aside. The court heard the
matter on 29 July 2021, and the verdict was delivered on 28 September 2021.
The Applicant Mr Dlamini revealed to
the court that his letter of dismissal came as a result of a disciplinary
hearing against him where he was facing four charges of misconduct and was
found guilty in respect of one. Mr Dlamini was charged, amongst other things,
for allegedly sexually harassing a co-worker Ms Nonjabuliso Tsabedze from
November 2017 to 2018 by making unwelcome sexual advances, passing comments of
a sexual nature and continuing to do so despite being informed that his
advances were unwelcomed, thereby breaching the first Respondent's terms and
condition of employment.
Mr Dlamini was also charged with sexual harassment of
a junior employee Ms Phindile Makube from the period of April 2017 to June 2017
by making unwelcome sexual advances, passing comments of a sexual nature and
continuing to do so despite being informed that his advances were not welcomed
thereby breaching the first Respondent's terms and conditions of employment.
However, the court looked at
the procedural aspects of the case and was not seized with the merits and
demerits of the matter. It found that the First Respondent did not follow its
own disciplinary code provisions and ordered that the letter of dismissal to
the Applicant, Mr Dlamini, be set aside. Of note, in this case, is that the
court did as asked by the Applicant – it did not venture into the substantive
elements of the case as it ruled as follow:
Disputes and grievances that occur in the workplace should be handled
according to the principles of natural justice and fairness. Apart from
considerations of equity and natural justice, the maintenance of a good
industrial relations atmosphere in the workplace requires that acceptance of
fair procedures are in place and observed.[118]
One notable feature in the cases is that a company or an institution
policy was used to charge the perpetrator of sexual harassment, and it appears
that the policies are less likely to be aligned to the SODV Act of 2018 and the
Maputo Protocol in that the court observed in the Kunene's case that Ms
Nomfundu Mbuli was still traumatised by the events of 16 years back. One can
infer that survivor Nomfundo never received the necessary counselling and
rehabilitation support she needed. The policy should, in our opinion, allow for
victims to elect whether to report the matter to the police so that the duty of
the police to inform the victim of counselling services can arise. This will
ensure that survivors of sexual harassment get justice, unlike being used as
witnesses to get rid only of the perpetrator from the work environment.
One of the labour law shortcomings is that it
fails to address the issue of rehabilitation of the victims as envisaged by the
Maputo Protocol. Also, the interviews conducted revealed that police officers
might not want to take sexual harassment cases as these types of cases are
viewed as less serious or trivial.[119]
Also, an interview with the Deputy Registrar revealed that matters touching on
sexual harassment were dealt with under the auspices of CMAC as a labour
misconduct issue and not under the SODV Act, or cases of sexual harassment are
handled by the Magistrate Courts.[120]
1.6 Conclusion and recommendations
The chapter
has critically analysed the laws and an example of a policy tackling sexual
harassment in Eswatini. The Constitution has provisions that are
gender-specific but fails to highlight the issue of violence against women.
However, Eswatini's Sexual Offences and Domestic Violence Act of 2018 was found
to be in alignment with the Maputo Protocol in laying down the normative
framework for handling sexual harassment matters. It was discovered that the
operationalisation of the SODV Act is slow as no case was found where the SODV
was used to charge an offender with sexual harassment. This shows that the
availability of a remedy does not necessarily mean that it will protect those
it is intended to protect or valuable to them unless there is a political will
to operationalise the remedy and utilise it.
The SODV Act does not specify the need for sexual offences victims to be
rehabilitated and places the honours to inform the survivors of sexual
harassment to the police officer investigating. This can create problems where
the investigating officer gets side-tracked or omitted to let the survivor know
of the right to seek counselling. The Act can be amended to widen the scope of
those who have a duty to alert the victim of counselling support instead of
making it the duty of the investigating police officer only. The duty can be
made to fall on those the incident of sexual harassment is reported to,
especially in the workplace environment. Employers, managers and supervisors
should have the duty to alert victims of sexual harassment about seeking
counselling.
Also, the chapter has shown that even though sexual
harassment is a real problem in Eswatini, there are very few cases on it. Where
victims have reported incidences of sexual harassment, the matter has been handled
using companies and institutions policies rather than the country's laws. Hence,
there is a need to lobby and advocate that companies and institutions adopt
policies that are aligned with the SODV and the Maputo Protocol. This will
ensure that women and girls are afforded protection guaranteed under the Maputo
Protocol and the SODV Act regarding access to justice, counselling support, and
rehabilitation services.
1.6.1
Recommendations
In the Constitution discrimination is prohibited but the ground of sex
is not there. It is recommended that the legislature consider revising the
grounds on which discrimination may not be carried to include the ground of sex
in the Constitution of 2005. This will ensure that the prohibited grounds on
discrimination embodies that of the Maputo Protocol.
It is recommended that the legislature or the line ministry responsible
for the implementation of the SODV Act embark on a mission of popularising the
Act and the Maputo Protocol, in particular the section on sexual harassment, by
sensitising law officials such as the police, lawyers, magistrates, the general
public and companies/institution about the importance of dealing with sexual
harassment decisively.
It is recommended that the legislature develop sexual offences
regulations where steps on reporting and following of cases can be outlined so
that every official involved in implementing the SODV Act is clear of his or
her role.
Lastly, it is recommended to stakeholders such as civil society organisations and government officials to research the impact of the SODV Act and the Maputo Protocol in Eswatini.
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*
Post-Doctoral Fellow at UKZN School of Law and Management (PhD UKZN, LLM
Pretoria, LLB UNESWA).
**
Professor at UKZN School of Law (PhD UKZN, LLM Natal, LLB Natal).
©
The Author(s), under exclusive license to Springer Nature Switzerland AG 2023
E.
Durojaye et al. (eds.), Sexual Harassment, Law and Human Rights in Africa,
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[1] United Nations Study of the Secretary-General on ending
violence against women: from words to action report 2006 at 89. See also R Cook ‘The human rights of women:
national and international perspectives’ (1994) Philadelphia: University of Pennsylvania Press at 137.
[2] United Nations Study of the Secretary-General on ending
violence against women: from words to action report 2006 at 50.
[3] CA MacKinnon ‘Sexual
Harassment of Working Women: a Case of Sex Discrimination’ (1979) New Haven:
Yale University Press at 20
[4] JN Houle et al. 'The
impact of sexual harassment on depressive symptoms during the early occupation
career' (2011) Soc Ment Health 89-105.
[5] UN Study ( n 1).
[6] NE Conroy
‘Rethinking adolescent peer sexual harassment: contributions of feminist
theory’ Journal of School Violence
(2013) 340-356
[7] As above.
[8] K van Marle & E Bonthuys ‘Feminist theories and
concepts’ in E Bonthuys & C Albertyn
(eds) Gender, Law and Justice (2007)
at 15-49 35.
[9] Conroy (n 6).
[10] Conroy (n 6).
[11] Conroy (n 6).
[12] S Mavundla
& A Strode and another ‘Marital power finally obliterated: the history of
the abolition of the marital power in civil marriages in Eswatini’ (2020)23 PER / PELJ 1-19.
[13] Simangele D Mavundla ‘Battered,
dejected, ejected and rejected: the rights of HIV positive women to be
protected from violence in Eswatini’ PhD thesis, University of KwaZulu Natal,
2020 at 81 on https://researchspace.ukzn.ac.za/bitstream/handle/10413/19479/Mavundla_Simangele_Daisy_2020.pdf?sequence=1&isAllowed=y
accessed 16.12.2021.
Please note that the husband's marital power over the body and affairs of his
wife in civil rites marriage has recently been found to be unconstitutional by
the Supreme Court of Eswatini in the case of Sacolo v Sacolo (2018) Unreported.
[14] As above, 5.
[15] SD
Mavundla, A Strode and Z Essack 'Access to Justice for women in Eswatini: HIV-positive
women as a vulnerable population’ in A. Budoo-Scholtz and E. C. Lubaale (eds) Violence Against Women and Criminal Justice
in Africa: (2021) II 339-370 at 347.
[16] See - Women and Law in
Southern Africa (WLSA) ‘Swaziland Multiple Jeopardy: Domestic Violence and
Women's Search for Justice in Swaziland’ (2001) at 33-107. See also Women and
Law-Swaziland ‘Charting the maze: women in pursuit of justice in Swaziland
(2000) at 75. See also, D Aphane, ‘Vula indzawo: the evolution of women’s
rights in Swaziland’ (2007) 1 Open Space 47-51.
[17] Eswatini
national report to the Human Rights Council, heard on 3 November 2021 para
114. Available on https://undocs.org/A/HRC/WG.6/39/SWZ/1 accessed 10.12.2021.
[18] UNICEF, The National Study on Violence against
Children and Young Women in Swaziland (October 2007).
[19] Swaziland
Business Coalition on Health & HIV/AIDS (SWABCHA), Sexual harassment in
the workplace in Swaziland: A focus on the private sector &
non-governmental organisations - baseline report (2018).
[20] As
above.
[22] As above.
[23] USA
Department of State Bureau of Democracy Human
rights and labour, Eswatini human rights practices country report for 2020
(2021) 13.
[24] Sibongile Sukati &
Mbongiseni Ndzimandze, 'Asians sex scandal: Whistle-blower portrayed as
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[25] BA
Garner Black’s law dictionary’ (2004)
8th (ed) Thomson West at 1407.
[26] The
International Labour Organisation Conditions
of Work and Employment Series No. 2
2005
[27] Garner
(n 25).
[28] UN
Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW
General Recommendation No 19: Violence against women, 1992, para 18, available
at: https://www.refworld.org/docid/52d920c54.html [accessed
14 December 2021]
[29] UN Convention on the Elimination of All
Discrimination Against Women of 1979.
[30] Protocol to the African
Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo
Protocol) of 2003.
[31] Samkelo
Nngwenya, ‘King orders Parly to ratify 28 International Conventions’ Times
of Swaziland 18.09.2012 available on http://www.times.co.sz/News/79799.html accessed 16.10.2021.
[32] The
Constitution of Eswatini 001 of 2005, which came into force February 2006,
Section 238.
[33] Section
238(2) would not apply where the agreement is self-executing or technical,
administrative, executive in nature or does not require ratification, as
outlined in section 238(4).
[34] UN CEDAW GR 19 (n
28).
[35] UN, Report on the
Fourth World Conference on Women, Beijing (New York: 1996) at para. 112.
[36] Maputo
Protocol article 1(j).
[37] Maputo
Protocol article 2(2).
[38] Maputo
Protocol article 3(2).
[39] Maputo
Protocol article 3(3).
[40] Maputo
Protocol article 3(4).
[41] Maputo
Protocol article 4(1)-(2).
[42] Mavundla
(n 13) 57.
[43] Garner (n 25) 293.
[44] J Burchell Principles
of Criminal Law 4th ed (South Africa: Juta, 2013) 481.
[45] As above 483
[46] Burchell (n 44) 483.
[47] Burchell
(n 45).
[48] Burchell (n
44) 485.
[49] Burchell (n
44) 486.
[50] J Burchell & J Milton The
Principles of Criminal Law 2nd ed (South Africa: Juta, 1997)
501.
[51] As above.
[52] Burchell & Milton
(n 50).
[53] Burchell & Milton
(n 50).
[54] Burchell & Milton
(n 50), see para 3.4.1 (b).
[55] Burchell & Milton (n
50).
[56] As above. See also
Mavundla (n 13).
[57] Burchell & Milton
(n 50) 502.
[58] Burchell & Milton
(n 50) 503.
[59] Burchell (n 44) 632.
[60] The Girls and Women’s
Protection Act 39 of 1920, section 3(1).
[61] Industrial Relations
Act 2000, section 2(f).
[62] Industrial
Relations Act 2000, section 30(6).
[63] The
Employment Act 1980, section 29 and section 35(3)(d).
[64] The Industrial
Relations Act: Code of Good Practice Amendment Notice 54 of 2005.
[65] As above,
para 3.4.2.
[66] McGregor v Public Health and Social Development Sectoral Bargaining
Council and Others [2021] ZACC 14
[67] P de Vos,
ConCourt ruling on sexual harassment by George doctor puts a spotlight on
workplace power relations, Daily Maverick
SA 17 June 2021, Available on https://www.dailymaverick.co.za/article/2021-06-17-concourt-ruling-on-sexual-harassment-by-george-doctor-puts-spotlight-on-workplace-power-relations/ accessed
17.12.2021.
[68] McGregor v Public Health and Social Development Sectoral Bargaining
Council and Others [2021] ZACC 14.
[69] De Vos (n
67).
[70] De Vos (n
67).
[71] De Vos (n
67).
[72] HS
Simelane, The evolution of the Swazi electoral process: ideological contradictions, 1978-2015 (2017) Journal of African Elections at 1-23. Available on: http://www.eisa.org.za/pdf/JAE16.1Simelane.pdf See T Maseko, Kingdom
of Swaziland introductory note: Available on: http://www.icla.up.ac.za/images/country_reports/swaziland_country_report.pdf accessed 30/01/2018.
[73] Proclamation
by His Majesty King Sobhuza II to the Nation of 12 April 1973, section 3.
[74] The Constitution of
Eswatini 001 of 2005, see Section 2(1) on the supremacy clause.
[75] Conroy (n 6).
[76] The
Constitution of Eswatini 001 of 2005, section 18(1).
[77] The
Constitution of Eswatini 001 of 2005, section 18(2).
[78] The
Constitution of Eswatini 001 of 2005, section 28(1).
[79] Sacolo v
Sacolo
(1403/2016) [2019] SZHC 166 (30 August 2019)
[80] SD Mavundla
et al., Marital Power Finally Obliterated (n 12) 1–19.
[81] Mavundla (n
13).
[82] Mavundla (n
13) 66-67.
[83] SODV
Act 15 of 2018, section 9 to section 12.
[84] SODV
Act 15 of 2018, section 23 to section 35.
[85] SODV
Act 15 of 2018, section 5 to section 8.
[86] SODV Act 15 of 2018,
section 47.
[87] SODV
Act 15 of 2018, section 77.
[88] SODV
Act 15 of 2018, section 48.
[89] The
SODV Act 15 of 2018, section 48(2)(a).
[90] The SODV Act 15 of
2018, section 48(2)(b).
[91] The SODV Act 15 of 2018,
section 48(2)(c).
[92] The SODV Act 15 of
2018, section 48.
[93] The SODV Act 15 of 2018,
section 72, states that the police officer has the duty to tell the victim of
the availability of counselling and other support services, particularly the
availability of Post Exposure Prophylactics (PEP).
[94] The SODV Act 15 of
2018, section 132.
[95] UNESWA
Sexual Harassment Policy of 17 December 2020.
[96] Sibongile Sukati
‘UNISWA LectureRs want sex'—SRC’ Times
of Swaziland 20.09.2009, available on
http://www.times.co.sz/news/9329-uniswa-lecturers-want-sex-%C3%A2%E2%82%AC%E2%80%9Dsrc.html accessed
18.12.2021
[97] As above.
[98] Above.
[99] Mbongiseni Ndzimandze
‘UNISWA assistant registrar charged with sexual abuse’ Times of Swaziland 11.05.2017, available on http://www.times.co.sz/news/113214-uniswa-assistant-registrar-charged-with-sexual-abuse.html accessed 17.12.2021
[100] As above.
[101] Mbongiseni Ndzimandze
‘I only hugged one student – UNISWA asst. registrar’ Times of Swaziland 12.05.2017 available on http://www.times.co.sz/feed/news/113227-i-only-hugged-one-student-%E2%80%93-uniswa-asst.-registrar.txt accessed 18.12.2021
[102] As above.
[103] Ndzimandze (n 101).
[104] UNESWA (n 95) para
1.3 policy objective no.3 10.
[105] UNESWA (n 95) para 2.1 13.
[106] UNESWA (n 95)
para 3.1 to 3.4 15-17.
[107] UNESWA (n 95) para
5.2.3 and 5.2.4.
[108] Mavundla (n
12) 10.
[109]
https://swazilii.org/content/welcome-new-website-swazi-legal-information-institute
[110] Interview
with Deputy Registrar of Eswatini High Court, Miss Nosipho Mazibuko 13 September
2021, Mbabane Eswatini.
[111] Interview
with Principal Magistrate Mr David Khumalo, Manzini Magistrate Court, 26
September 2021, Manzini Eswatini.
[112] John
Kunene v The Teaching Service Commission and 2 others (317/2007)
[2021] SZIC 42/2021 [unreported] available on https://swazilii.org/sz/judgment/industrial-court/2021/42/2021-szic-42.pdf
accessed 13.09.2021.
[113] As above, Para 45.
[114] John
Kunene v The Teaching Service Commission and 2 others
(n
112) para 54.
[115] John
Kunene v The Teaching Service Commission and 2 others
(n
112) para 55.
[116] John
Kunene v The Teaching Service Commission and 2 others
(n
112) para
58
[117] Sabelo Dlamini v Eswatini Civil Aviation Authority (ESWACAA) and
another SZIC 74 (28 September 2021) (Unreported).
[118] As above,
para 27.
[119] Interview
with Principal Magistrate Mr David Khumalo, Manzini Magistrate Court, 26
September 2021, Manzini Eswatini.
[120] Interview
with Deputy Registrar of Eswatini High Court, Miss Nosipho Mazibuko 13
September 2021, Mbabane Eswatini.
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