Swaziland operates a dual legal system. It has two distinct court systems: traditional courts (known as Swazi National Courts) and common law courts.
The court system includes the Supreme Court, a High Court, and “such specialised, subordinate and Swazi courts or tribunals exercising a judicial function as Parliament may by law establish”.[1]
The judiciary has jurisdiction in all matters civil and criminal, including matters related to the Constitution.[2]The Chief Justice is “the head of the judiciary and is responsible for the administration and supervision of the judiciary”. She or he may make rules for regulating the practice and procedure of the superior and subordinate courts.[3]
The superior courts consist of the Supreme Court and the High Court.[4]
The Supreme Court is the apex court,[5] and hears appeals from the High Court[6] and exercises discretionary appellate review over cases originating in other courts.[7] It is composed of the Chief Justice and no less than four Justices.[8]
The High Court exercises original jurisdiction in most civil and criminal matters, and can hear appeals from lower courts or tribunals.[9] Notably, the High Court’s jurisdiction includes constitutional questions and the enforcement of fundamental rights.[10] Its jurisdiction is excluded in matters falling within the competence of the Industrial Court, the Swazi Courts or the Courts Martial.[11] The High Court is composed of the Chief Justice, ex officio, and no less than four judges of the High Court;[12] the Chief Justice may also assign other judges to sit on the High Court for any case or period.
Magistrates Courts are established under the Magistrates Courts Act 1938. Under the 2011 Magistrates Courts (Amendment) Act, a classification into principal magistrate’s court, senior magistrate’s court and magistrate’s court was introduced, replacing the old distinction between classes. The jurisdiction of each of these courts is limited by the amount of the claim.[13]Judgments of Magistrates Courts may be appealed to the High Court.[14]
Swaziland also has specialty courts, created by statute and with limited jurisdiction. Governed by the Industrial Relations Act 2000, the Industrial Court has broad jurisdiction over matters touching upon industrial relations and the employer-employee relationship. Decisions of the Industrial Court may be appealed to the Industrial Court of Appeals;[15] the High Court reviews decisions of the Industrial Court, which are appealable in that respect to the Supreme Court. The Small Claims Court Act 2011 authorizes the Minister of Justice to establish a Small Claims Court[16] with limited jurisdiction.[17] The Act has not yet been implemented and no Small Claims Courts are operational at present. The Children Protection and Welfare Act 2012 provides for the creation of a Children’s Court.[18] No such court is operational at present. There is a Court at the High Court with facilities for small children and another has recently been opened in Nhlangano.
Swazi National Courts have jurisdiction to adjudicate petty criminal offenses and minor civil disputes governed by customary law. The National Courts system is governed by the 1950 Swazi National Courts Act and includes Swazi Courts, Swazi Courts of Appeal, Higher Swazi Court of Appeal and the Judicial Commissioner. Cases are dispensed with, according to unwritten customary law, in a relatively speedy manner, as individuals accused in criminal matters are not permitted counsel.[19]
The existence of the two court systems has given rise to forum shopping. Customary courts are seen as providing prompt and affordable justice, and may be preferred by victims of a crime because of the belief that unlike in common law courts, there will be no lawyers to “derail” the proceedings.[20] Practice, at times inconsistent with legislatively attributed competence, has given rise to a grey area as regards the exact procedure for case referral: the police department makes a list of cases to be taken to each court and consults with the clerk of court at the Magistrate’s Court, who serves as a check and balance. However, some cases do not go through this informal system and state police moreover do not always inquire of suspects upon arrest if they wish to be represented (which would lead to the exclusion of the Swazi Courts’ jurisdiction). Consequently, some cases find their way to the customary courts, in spite of the accused’s preference for the Magistrate’s Court, potentially leading to long legal battles to move the case to the desired forum.[21] Moreover, the police refer some cases, in which evidence is tenuous and which may lead to an acquittal in the Magistrate’s Courts, to traditional courts where convictions will be assured.
- 1. Constitution, S. 139(1).↵
The judiciary consists of –
(a) the Superior Court of Judicature comprising –
(i) The Supreme Court, and
(ii) The High Court;
(b) such specialised, subordinate and Swazi courts or tribunals exercising a judicial function as Parliament may by law establish.
- 2. Constitution, S. 139(2).↵
The Judiciary has jurisdiction in all matters civil and criminal, including matters relating to this Constitution, and such other jurisdiction as may by law be conferred on it.
- 3. Constitution, S. 139(4)jo. S. 142.
Except as may otherwise be provided in this Constitution or as may otherwise be ordered by a court in the interest of public morality, public safety, public order or public policy, the procedings of every court shall be held in public.
↵Administrative functions of the Chief Justice
Subject to the provisions of this Constitution or any other law, the Chief Justice as head of the Judiciary may make rules for regulating the practice and procedure of the superior and subordinate courts, including the specialised and local courts as well as powers of judicial officers.
- 4. Constitution, S. 139(1)(a).↵
The judiciary consists of –
(a) the Superior Court of Judicature comprising –
(i) The Supreme Court, and
(ii) The High Court;
- 5. Constitution, S. 146(1).↵
The Supreme Court is the final court of appeal. Accordingly, the Supreme Court has appellate jurisdiction and such other jurisdiction as may be conferred on it by this Constitution or any other law.
- 6. Constitution, S. 147(1)(a).↵
(1) An appeal shall lie to the Supreme Court from a judgement, decree or order of the High Court –
(a) as of right in a civil or criminal cause or matter from a judgement of the High Court in the exercise of its original jurisdiction; or
…
- 7. Constitution, S. 147(1)(b).↵
(1) An appeal shall lie to the Supreme Court from a judgement, decree or order of the High Court –
…
(b) with the leave of the High Court, in any other cause or matter where the case was commenced in a court lower than the High Court and where the High Court is satisfied that the case involves a substantial question of law or is in the public interest.
- 8. Constitution, S. 145(1).↵
There shall be a Supreme Court of Judicature for Swaziland consisting of the Chief Justice and not less than four other Justices of the Supreme Court.
- 9. Constitution, S. 152.↵
Review and supervisory powers of the High Court
The High Court shall have and exercise review and supervisory power over all subordinate courts and tribunals or any lower adjudicating authority, and may, in exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its review or supervisory powers.
- 10. Constitution, S. 151(2)(a).↵
(2) Without derogating from the generality of subsection (1) the High Court has jurisdiction –
(a) to enforce the fundamental human rights and freedoms guaranteed by this Constitution; and
…
- 11. Constitution, S. 151(3).↵
Notwithstanding the provisions of subsection (1), the High Court –
(a) has no original or appellate jurisdiction in any matter in which the Industrial Court has exclusive jurisdiction;
(b) has no original but has review and appellate jurisdiction in matters in which a Swazi Court or Court Martial has jurisdiction under any law for the time being in force.
- 12. Constitution, S. 150.↵
Composition of the High Court
(1) There shall be a High Court of Judicature for Swaziland consisting of –
(a) the Chief Justice, ex officio;
(b) not less than four Justices of the High Court as may be prescribed; and
(c) such other Justices of the Superior Court of Judicature as the Chief Justice may, in written assign to sit as High Court Justices for any case or period.
(2) The High Court shall be duly constituted –
(a) by a single Judge of the High Court;
(b) by a single Judge of the High Court with assessors; or
(c) by a single Judge of the superior courts with or without assessors.
(3) A full bench of the High Court shall consist of three Justices of the Superior courts.
(4) The Chief Justice shall always preside whenever sitting as a Justice of the High Court.
(5) The Chief Justice shall designate in writing the most senior Justice of the High Court to be Principal Judge of the High Court to preside and exercise such functions as may be stated in the designation.
(6) There shall be such divisions of the High Court consisting of such number of Justices respectively as the Chief Justice may determine after consultation with the Minister responsible for Justice and the President of the Swaziland Law Society.
- 13. Magistrates Courts Act, S. 16 (amended).↵
Jurisdiction in respect of causes of action
(1) Subject to section 16bis and any other provision of this Act or other law the jurisdiction of magistrate’s courts in civil matters shall be –
(a) in the case of principal magistrate’s courts, all actions permitted by law or practice and actions where the claim or value of the matter in dispute does not exceed thirty (30) thousand Emalangeni;
(b) in the case of senior magistrate’s courts, all actions permitted by law or practice and actions where the claim or value of the matter in dispute does not exceed twenty (20) thousand Emalangeni;
(c) in the case of any magistrate’s courts (lower than a senior magistrate’s court), all actions permitted by law or practice and actions where the claim or value of the matter in dispute does not exceed ten (10) thousand Emalangeni;
(2) Where both parties are Swazis, and the cause of action is, in the opinion of the clerk of the court, one suitable to be heard in a Swazi Court of appropriate jurisdiction established or recognised under the Swazi Courts Act, 1950 or the Swazi Administration Act, 1950 or its successor and permissible under the Constitution, the clerk may refuse to issue summons, and may order the plaintiff to commence the action in such Swazi court or other court;
(3) At any time after the issue of summons commencing action in any case where both parties are Swazis, the court may order that the action be transferred to a Swazi court of appropriate jurisdiction or to such courts as specified in this section;
- 14. Part VIII Magistrates Courts Act for civil matters, S. 85-86 Magistrates Courts Act for criminal matters. S. 92 Magistrates Courts Act provides that the Director of Public Prosecution may, in criminal cases, seek a ruling of the High Court on matters of law, if he is dissatisfied with a decision on this by the Magistrate’s Court.↵
- 15. Industrial Relations Act, S. 20(1).↵
(1) There is established an Industrial Court of Appeal which shall have the same powers and functions as the Court of Appeal but shall only deal with appeals from the Industrial Court.
(2) The Industrial Court of Appeal shall consist of a Judge President and two Justices of Appeal, all of whom shall have the same qualifications as judges of the Court of Appeal and shall be appointed in the same manner as the Judges of the Court of Appeal.
(3) The tenure of office of the Judge President and the Justices of Appeal of the Industrial Court of Appeal shall be similar to the tenure of the Judge President and Justices of Appeal of the Court of Appeal.
(4) The Judge President of the Industrial Court of Appeal and any Justice of Appeal shall not enter upon the duties of office unless such President or Justice has taken and subscribed to the oath of allegiance for the due execution of office which oath shall be as near as possible to the oath set out in Schedule 2 of the Constitution of Swaziland, 1968.
- 16. Small Claims Court Act, S. 3.↵
Establishment of court
(1) The Minister, after consultation with the Chief Justice, may by order published in the Gazette –
(a) establish for any areas consisting of one or more Regions of the regions of the country or a part of a Region a court to be known as a Small Claims Court for the adjudication of claims in terms of this Act;
(b) determine the seat of such the court;
(c) determine one or more places in the area concerned for the holding of sessions of such a court;
(d) alter the area for which such a court has been established by including therein or exercising therefrom any Region or Regions or part thereof;
(e) abolish a court established in terms of this section; and
(f) amend or withdraw and notice issued in terms of this section.
(2) Where the Minister deems it necessary and expedient, the Minister or a principal magistrate of a Region, if so authorized by the Minister and the Chief Justice, may, notwithstanding the provisions of subsection (1) –
(a) establish for a Region or part of that Region a court for the adjudication of any particular claim or claims in terms of this Act; and
(b) determine the place in the Region for the holding of sessions of such a court.
- 17. Small Claims Court Act, S. 13-25.↵
- 18. Maxine Langwenya, Swaziland: Justice Sector and Rule of Law. A review by AfriMAP and the Open Society Initiative for Southern Africa (March 2013), p. 132.↵
- 19. This prohibitory clause has come to be interpreted to denote that once a person indicates a desire to be represented, the case is moved to the jurisdiction of the Magistrate Court. See Angelo Dube, Assessment Study on Delayed Justice Delivery (July 2010), p. 46.↵
- 20. Angelo Dube, Assessment Study on Delayed Justice Delivery (July 2010), p. 2.↵
- 21. Angelo Dube, Assessment Study on Delayed Justice Delivery (July 2010), p. 46.↵
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