Supreme Court Allows Alpheous Nxumalo's Appeal Against SODV Act to Proceed

The Supreme Court of Eswatini has granted Alpheous Mfana Nxumalo condonation for the late filing of his appeal record in a legal challenge against the constitutionality of the Sexual Offences and Domestic Violence Act of 2018. This decision allows Nxumalo's appeal to proceed after the court accepted that a 13-day delay in filing the record resulted from an error by his attorney. Nxumalo is represented by Khumbulani Professor Msibi.

The Supreme Court ruled that the delay was not excessive and that the constitutional questions raised in the appeal were of national importance. The court further ordered that an application by the director of public prosecutions (DPP) and deputy prime minister to have the appeal declared abandoned be struck off the roll. However, Nxumalo was ordered to pay 75% of the costs incurred by the DPM and attorney general in opposing the condonation application.

The matter stems from an application Nxumalo instituted in the High Court, where he sought an order declaring the Sexual Offences and Domestic Violence Act No. 15 of 2018 null and void. The application was heard by a full bench of the High Court, which unanimously dismissed it in its entirety in a judgment delivered on December 10, 2025. Dissatisfied with the outcome, Nxumalo filed and served his notice and grounds of appeal on December 15, 2025.

Nxumalo raised no fewer than 11 grounds of appeal but failed to file the record of appeal within the 40-day period prescribed by Rule 36(1) of the Supreme Court Rules. The deadline expired on February 13 without the record having been filed. Nxumalo subsequently filed an application for condonation on March 5, seeking the court's permission to accept the late filing.

The application was opposed by the DPM and attorney general, who had written to Nxumalo's legal representatives on March 4 notifying them of their failure to comply with the court rules. The respondents indicated that they intended approaching the court to have the appeal declared abandoned and struck off the roll. The judge explained that Rule 36(5) provides that where an appellant fails to submit the record for certification within the prescribed 40-day period, the appeal is deemed to have been abandoned.

The court found that the circumstances surrounding Nxumalo's failure to comply with the deadline warranted condonation. Justice Mamba said he would not determine the actual merits of the constitutional challenge at the condonation stage, as that responsibility rested with the full bench that would eventually hear the appeal. He observed that the grounds of appeal did not suggest that the matter was hopeless or an exercise in futility.

The court acknowledged that no explanation had been provided for the difference between the filing and service dates of the record. Justice Mamba highlighted that the constitutional issues raised by Nxumalo were matters of public interest because they concerned the validity and provisions of legislation dealing with sexual offences and domestic violence. The court consequently condoned the late filing of the record of appeal on March 5.

Key points

• The Supreme Court of Eswatini has allowed Alpheous Nxumalo's appeal against the Sexual Offences and Domestic Violence Act to proceed.
• The court granted condonation for a 13-day delay in filing the appeal record due to an error by Nxumalo's attorney.
• Nxumalo was ordered to pay 75% of the costs incurred by the DPM and attorney general in opposing the condonation application.