The indigenous law of contract with particular reference to the Swazi in the Kingdom of Swaziland

Abstract

This study was undertaken to establish whether the legal phenomenon known as a contract exist in indigenous legal systems and in particular, among the Swazi. As the underlying aims and consequences of indigenous contracts differ not only between indigenous peoples but is also affected by the degree of westernisation that has taken place, a micro study has been done in semi-rural areas in the Kingdom of Swaziland to establish if the existing value systems are altered or replaced when western legal institutions are introduced.

Data was obtained by way of interviewing a panel of experts and compared with available literature. Through the process of gathering information, the legal principles were described and the functioning of social processes noted.

Different indigenous contracts and general principles were identified. It must, however, be noted that a contract is more than a device for establishing the economic and legal implications of a transaction. Most contractual disputes are resolved outside the courts through negotiated settlements to restore harmony in the community. Although the Swazi law of contract is showing clear signs of adapting to new developments, there is proof that established legal principles and Swazi values are being retained.

This study will not only be useful as a source of information for both Swazi courts and administration, but could also serve as a basis for codification intended by the Swazi Government. For that purpose, a memorandum has been compiled for consideration by the Swazi authorities.

The compatibility of Swazi law and custom with a Bill of Rights was also evaluated and suggestions were made for possible law reform in the Kingdom of Swaziland.