High Court Judge Sabelo Masuku has ruled that Civil Courts should not be hesitant to apply common law remedies when Swazi customary law is either silent or inadequate to address disputes brought before them.
Delivering judgment in a high-profile dispute involving competing claims of authority at Esitjeni under the eNkhanini Chiefdom, the judge emphasised that the country’s dual legal system, comprising Swazi law and custom on one hand and Roman-Dutch common law on the other, must work in harmony to ensure justice.
“In the interest of justice, Civil Courts should not be shy to apply common law remedies such as where Swazi customary law is silent or inadequate,” the judge said. “This way, the two legal systems standing side by side in our Constitution find harmony even where one system lacks a specific remedy,” he added.
The case pitted substantive Chief of eNkhanini, Lusendvo Fakudze and his Indvuna, Ntokozo Dube, against former Esitjeni indvuna Lusekwane Motsa and four others, whom Fakudze accused of defying his authority and running a parallel administration in the area.
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Judge Masuku noted that the matter raised deep questions about the conflict of laws in Eswatini, particularly the challenge of determining the applicable legal framework when disputes involve both customary and common law elements.
According to the judge, on one hand, the Constitution granted the High Court unlimited original jurisdiction in civil matters under Section 151. On the other hand, Section 151(3) limited that power by giving Swazi Courts primary jurisdiction in matters falling under Swazi law and custom, with appeals and reviews ultimately falling to the High Court.
He explained that the Constitution also explicitly recognised Swazi law and custom as part of the law of Eswatini (Section 252(2)), while Roman-Dutch law, introduced in 1907, continued to operate.
“When confronted with a case involving competing laws, each equally applicable, the High Court must navigate a critical jurisdictional question of which legal framework governs,” Masuku observed.
The judge further noted that disputes over ownership of Swazi Nation Land traditionally fell within the jurisdiction of chiefs’ courts, with appeals heard by Swazi Courts of Appeal and later subject to review by the High Court. He warned against litigants trying to bypass traditional mechanisms by rushing to civil courts for enforcement of orders already available under customary processes.
“Civil Courts should therefore rightly exercise vigilance in such matters and respect the jurisdictional boundaries between traditional authorities and Civil Courts,” he said.
Power struggle at Esitjeni
The central issue before the court was whether the High Court could grant an interdict—an order restraining a person or authority from certain actions—where customary law is silent on such a remedy.
At the heart of the case was a power struggle over the administration of Esitjeni. Chief Lusendvo Fakudze told the court that he removed Motsa from his position as indvuna yemcuba of eSitjeni after he defied his authority. He accused Motsa, together with former umgijimi (chief’s runner) Mndeni Mndzebele and Inkhosikati LaMtsetfwa of Esitjeni, of running a rival administration that undermined his leadership.
The applicants further accused Vusi Dlamini of unlawfully allocating his disabled father’s land at eSitjeni to Nolwazi Vilakati, who then began construction on it without the chief’s approval.
Fakudze and his indvuna approached the High Court on a certificate of urgency seeking to stop the rival group from holding meetings, exercising authority, and continuing with the disputed land allocation. They argued that although the dispute originated within traditional structures, only the Civil Courts could grant the urgent interdict needed to preserve order while the matter was being finalised.
The matter, according to the judge, was complicated by the existence of another case involving the same parties. Earlier this year, Motsa approached the High Court seeking to review Fakudze’s decision to remove him as indvuna. That application was dismissed by Judge Bongani Dlamini, who referred the matter back to traditional authorities for deliberation.
In the current proceedings, Motsa challenged Fakudze’s authority, insisting that Nkhanini was lihamba te (an area without a substantive chief) and that Esitjeni was an independent royal kraal.
Judge Masuku emphasised that the intervention was not meant to usurp the authority of traditional structures, but to complement them where customary law was silent.
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