High Court Judge Justice Maxine LaNgwenya has urged magistrates to avoid basing sentences on emotions, personal feelings or background.
Making her submissions during the Magistrates’ Dialogue on the Sexual Offences and Domestic Violence Act held at the Bethel Court over the past weekend, Judge LaNgwenya stressed the need for magistrates to remain impartial when making decisions and that they should be guided by the law and evidence presented before the court.
“Sentencing should not be driven by emotions or personal feelings. Magistrates must exercise their discretion carefully and ensure that their decisions are based on the law.”
She also cautioned magistrates against allowing an accused person’s background to unfairly influence the sentence.
While personal circumstances may be considered where the law permits, she said they should not replace sound judicial reasoning.
“Your background should not determine the outcome of a case. The court must consider the relevant circumstances fairly and apply the law consistently,” she said.
‘No-contact’ bail order hard to enforce – Judge
Judge Justice Cyril Maphanga has revealed that bail conditions, particularly ‘no-contact’ orders, can be difficult to enforce in the country.
He explained that bail is based on the constitutional right to liberty and a fair trial, but this right must be balanced against the protection of victims, witnesses, the public and the criminal justice system.
The Criminal Procedure and Evidence Act provides courts with factors to consider when deciding whether bail should be granted.
These include the danger posed to public safety or a particular person, the possibility that an accused person may evade trial and the possibility of intimidating, threatening or interfering with witnesses.
These considerations become particularly important in sexual offence and domestic violence cases.
Justice Maphanga said Section 123 of the SODV Act further strengthened the considerations that courts can apply when dealing with bail applications involving such offences. Justice Maphanga was speaking during a presentation at the Magistrates’ Dialogue on the Sexual Offences and Domestic Violence Act (SODV Act) held at Bethel Court at the weekend.
However, he said a court must consider whether bail conditions can actually be enforced before imposing them.
“How effective and enforceable bail conditions prohibiting communication for instance, the contact element or restrictions between an accused and a victim, are likely to be another consideration,” he said.
He said the court must look at the circumstances of each case and determine whether there are sufficient institutional arrangements to monitor and enforce the conditions.
Justice Maphanga gave an example of a case where an accused person had been granted bail on condition that he did not contact potential witnesses.
The accused was later found to have spoken to one of the witnesses. He reportedly argued that they had simply met by chance at a shop and that he had only greeted the person.
The example demonstrated the practical difficulties of enforcing a ‘no-contact’ order.
The judge said the problem is even more complicated in the modern age of mobile phones and social media, where a person can communicate indirectly through other people or groups.
“If you are saying no contact, what exactly do you mean?” Justice Maphanga asked.
He said courts may need to consider whether an accused person could influence a victim or witness through a third person or another form of communication.
Eswatini’s small size also creates practical challenges, according to the judge. People who are involved in the same case may live or work in the same communities, making complete separation difficult.
Justice Maphanga therefore warned that courts should not only consider whether a particular bail condition is legally appropriate, but whether the authorities have the capacity to monitor and enforce it.
“If the risk is higher and the enforcement measures are weak, you may need to think that it won’t be as effective as it is desirable,” he said.
Judge warns enforcement key to SODV Act
The country has a strong legal framework for protecting SODV survivors, says Judge Justice Cyril Maphanga.
However, the laws will mean little if there is not enough capacity to enforce them.
He said the SODV Act provides important mechanisms, including interim protection orders and urgent applications that can be brought when there is an immediate risk of harm.
The law allows courts to issue orders preventing a respondent from approaching a complainant or the complainant’s home. Courts can also order a respondent to leave a home or regulate contact with family members, including children.
Justice Maphanga described these measures as a strong part of the legislation.
However, he stressed that their effectiveness depended on what happens after the court order is issued.
“So what is written on paper, you then have to ground it on what happens on the ground,” he said.
The judge said courts must ask whether there are enough police officers, institutional resources and monitoring systems to ensure that protection orders and bail conditions are obeyed.
He said bail conditions and victim protection measures should be considered together because both are intended to reduce risks to victims, witnesses and the public.
The judge also pointed out that the SODV Act and the Criminal Procedure and Evidence Act provide courts with a detailed framework for assessing risks.
These include the level of violence involved in an alleged offence, threats made by an accused person, resentment towards a victim or other person, previous behaviour and the possibility of reoffending.
Despite these provisions, Justice Maphanga said the justice system must have the manpower and institutional support required to make these measures effective.
Justice Maphanga reminded the magistrates that an accused person is innocent until proven guilty and the state must generally demonstrate why detention is necessary in the interests of justice.
At the same time, the law provides special rules for certain serious offences, including rape, where the accused may be required to demonstrate exceptional circumstances before being released on bail.
The judge said the courts have struggled with the meaning of exceptional circumstances, with some applicants relying on personal circumstances such as health problems.
He said there has been debate about whether exceptional circumstances should focus on personal circumstances or objective factors connected to the offence and the risks surrounding the granting of bail.
