1887

n Law, Democracy & Development - The (mis)application of the limitation analysis in Maseko and others v Prime Minister of Swaziland and others

Volume 22 Number 1
  • ISSN : 1028-1053
  • E-ISSN: 2077-4907
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Abstract

On 16 September 2016, the High Court of Swaziland delivered judgment in a case involving the interpretation of the limitation clause in the Swaziland Constitution. This was in the case of Maseko and others v Prime Minister of Swaziland and others (Maseko), in which certain sections of the Sedition and Subversive Activities Act 46 of 1938 (Sedition Act) as well as the Suppression of Terrorism Act 3 of 2008 (STA) were declared unconstitutional. It should be noted that there is a general reluctance within the judiciary to enquire into or rule upon the constitutionality of impugned legislation, and quite often constitutional challenges fail at the preliminary stage of determining locus standi. The Court’s response to the legal challenge in Maseko is thus very pertinent to constitutional development in that this was one of the very few instances in which a Swaziland court applied the limitation analysis to declare legislation unconstitutional, and did not shelter behind a common law inspired conceptualisation of standing. The only other time this was done was to declare the common law marital power of the husband invalid on account of its clash with the equality clause in the Constitution in the case of Sihlongonyane v Sihlongonyane (Sihlongonyane). However, even in Sihlongonyane, a proper limitation analysis could not be undertaken since the Swaziland Constitution does not have a general limitation clause. The Court was merely guided by the equality clause in sections 20 and 28 which regulate the rights and freedoms of women. It is worth noting that in the Swaziland Bill of Rights litigation context, there is a strong inclination to cling to common law principles, even when dealing with constitutional litigation. For instance, standing is still viewed from the angle of the common law when in fact it is now regulated by section 35 of the 2005 Constitution in so far as constitutional litigation goes. To demonstrate this: in Sihlongonyane, there was an unsuccessful attempt to have the case thrown out on the basis that the female applicant did not have standing due to the marital power of the husband. The Court had to first deal with that challenge before determining the constitutionality or otherwise of the common law marital power of the husband.

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/content/journal/10520/EJC-10c46607ca
2018-09-01
2020-07-11

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