Swaziland
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WOMAN ARRESTED OVER CHILD MAINTENANCE

MANZINI - Women failing to contribute towards the the upkeep of their children should brace themselves for tough times as a woman was found guilty of failing to maintain her own child is currently behind bars.

Nomcebo Sikhondze of Ngcoseni, who was charged with the offence of failure to maintain her 15-year-old daughter doing Form I in one of the schools in the Manzini Region, was arrested at the instruction of Manzini Magistrate Philisiwe Simelane. The accused was charged for contravening the Children’s Protection and Welfare Act of 2012. Upon her arrest, the accused made an application to the High Court challenging her arrest.

Seized

The applicant in the matter is Sikhondze, while Magistrate Simelane who is seized with the applicant’s purported criminal matter at the Manzini Magistrates Court is the first respondent. The second respondent is the director of public prosecutions and the third respondent is the attorney general. The applicant argued that the order for her continued incarceration at His Majesty’s Correctional Services was unlawful, irrational and unconstitutional and of no force and effect. Making her submission, the applicant stated that on Monday, June 19, she was called to report to the Manzini Police Station, and was later taken to the Manzini Magistrates Court, where she was arraigned before the first respondent, who issued an order directing the police that they should take her to the Mawelawela facility the same day.

The applicant highlighted that the matter was postponed to June 27, a period of a whole week. She mentioned that during her first appearance before the first respondent, neither the first and second respondents informed her of her rights, including that of applying for bail if she so wished, as well as her right to be legally represented by an attorney of her choice.

Misdirection

She mentioned that she was advised by her legal advisor and that on its own was misdirection and a gross miscarriage of justice from the first respondent, which made the proceedings reviewable. The applicant cited that on June 27, the return date, she again appeared before Magistrate Simelane where she was made to plead, and she pleaded guilty to the charges that were preferred against her.  Sikhondze submitted that she was duly convicted by the magistrate.  “To my surprise and dismay, the first respondent issued an order directing that I should be remanded in custody until July 5, 2023 for sentencing,” she submitted.

The applicant elaborated that the matter was duly postponed to July 5 for sentencing. This, according to the applicant, was despite the fact that Section 227 of the Children Welfare and Protection Act of 2011 provides that if a person is convicted for the first time for failure to maintain a child, he or she should be ordered to pay the maintenance due, not to be incarcerated.
“I state that the child in question was staying with me until January this year, where she decided to go and stay with her paternal grandmother since I am now married to another man. I was supporting my child the whole of her life,” she said. Sikhondze added that trouble started in February 2023 when she went on maternity leave since she lost her only source of income from work. She highlighted that she was employed by one of the firms in Matsapha, where maternity leave was not paid and to date, she had not been paid anything.

Incarcerated

The applicant revealed that she returned to work in June 2023 and was arrested and incarcerated thus, she had lost hope that she would get her job back since this was her second week of incarceration. “What further compounds the situation is that I have two other minors from my new marriage. This is not to say I am making excuses about my failure to maintain my child. I had hoped to continue to support my child like before since I had returned to work prior to my arrest and unlawful incarceration,” she said. She further stated that she was desirous of being admitted to bail pending review. Sikhondze averred that the interests of justice favoured that she be admitted to bail pending review of the proceedings at the Magistrates Court. She explained that the reason for this was that she had three minors.  The applicant stated that one of the children was with her at Mawelawela Correctional facility.

Sikhondze elaborated that bail was a right under the right of liberty enshrined under the Constitution of the country and any unjustifiable confinement was a violation of my right to liberty. “There is no likelihood that I will either interfere with any state witness, evade trial since I have gone through trial, that my granting of bail will cause public disorder or that it will jeopardise the proper administration of justice,” she submitted.