The legal system of Eswatini
A genuinely dual system: Roman-Dutch common law and English procedure run in the modern courts while Swazi customary law and the traditional Tinkhundla structures operate in parallel with their own hierarchy. Marriage exists in two regimes, civil and customary, with materially different consequences for matrimonial property and succession, and the choice is frequently undocumented — the single most common source of practical difficulty for families and their advisers.
Legal tradition
Eswatini belongs to the mixed roman-dutch, english common law and swazi customary law tradition. A genuinely dual system: Roman-Dutch common law and English procedure run in the modern courts while Swazi customary law and the traditional Tinkhundla structures operate in parallel with their own hierarchy. Marriage exists in two regimes, civil and customary, with materially different consequences for matrimonial property and succession, and the choice is frequently undocumented — the single most common source of practical difficulty for families and their advisers.
How power is divided
Unitary with four regions and 55 tinkhundla constituencies that combine electoral and administrative functions. Chiefs administer Swazi Nation Land under the King as trustee.
Where law comes from
- Constitution
- Declared supreme, but read alongside preserved royal prerogative.
- King's Orders-in-Council and Acts
- Legislation may originate from Parliament or by royal decree.
- Roman-Dutch common law
- Substantive private law with English procedure.
- Swazi customary law
- Applied by the Swazi National Courts; governs land and much family matter.
- Case law
- Binding precedent from the Supreme Court downwards.
The legal profession
A fused profession of attorneys admitted by the High Court after a law degree and articles, regulated by the Law Society of Eswatini; advocates may be admitted separately for higher-court work.
Law by topic in Eswatini
- Immigration & NationalityImmigration Act permits with SACU and regional movement arrangementsThe Immigration Act 17 of 1982 governs entry, residence and work permits. Eswatini is a SACU and SADC member, and movement with South Africa dominates practice. Work permits require ministerial approval on proof of unavailability of local skills.
- Property & LandSwazi Nation Land held in trust by the King alongside title-deed landLand divides into Swazi Nation Land, held by the King in trust for the nation and allocated through chiefs by khonta, and title-deed land held under Roman-Dutch ownership and registered in the Deeds Registry. Swazi Nation Land cannot be sold or mortgaged, which sharply limits its use as security.
- Family LawCivil and Swazi law marriage with differing property and capacity consequencesMarriage may be civil, under the Marriage Act 47 of 1964, or by Swazi law and custom, which permits polygyny. The two regimes produce different property and guardianship consequences, and the choice is frequently ambiguous in practice because couples may undergo both. Sihlongonyane v Sihlongonyane (2013) held the common-law marital power unconstitutional.
- Criminal LawRoman-Dutch common-law crimes with statutory supplements and retained capital punishmentSerious offences remain Roman-Dutch common-law crimes, supplemented by statutes including the Sexual Offences and Domestic Violence Act 2018 and the Suppression of Terrorism Act 2008. The death penalty is retained but has not been carried out since 1983. Swazi National Courts try minor customary offences.
- Civil ProcedureHigh Court Rules with Roman-Dutch prescription and a Supreme Court apexCivil procedure follows the High Court Rules, modelled on the older South African rules. Prescription follows Roman-Dutch principles. The Supreme Court, created by the 2005 Constitution to replace the Court of Appeal, is the final court.
- Constitutional Law2005 Constitution with executive authority vested in the King and a dual legal systemThe 2005 Constitution ended two decades of rule by decree after the 1973 proclamation, but vests executive authority in the King (iNgwenyama), who appoints the Prime Minister and a portion of both chambers. Political parties remain effectively barred from contesting elections, which are conducted on a candidate basis through the tinkhundla system. Chapter III contains a bill of rights.
- Business & CorporateCompanies Act 8 of 2009 with Registrar registration and Roman-Dutch commercial lawThe Companies Act 8 of 2009 replaced the 1912 Act, modernising incorporation and governance. Underlying commercial law is Roman-Dutch, received through the Cape. The Eswatini Investment Promotion Authority operates as the investment facilitation point.
- Employment & LabourEmployment Act 1980 with CMAC conciliation and an Industrial CourtThe Employment Act 5 of 1980 and the Industrial Relations Act 1 of 2000 govern employment. The Conciliation, Mediation and Arbitration Commission handles disputes before the Industrial Court. Dismissal requires a fair reason and procedure, and the Industrial Court may order reinstatement or compensation.
- Tax LawIncome Tax Order with a 25 per cent company rate and 15 per cent VATThe Income Tax Order 21 of 1975 charges income tax on a source basis, with the company rate reduced to 25 per cent. VAT is 15 per cent under the Value Added Tax Act 12 of 2011. The Eswatini Revenue Service administers both, and SACU receipts form a large share of national revenue.
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