Swazi Law and Custom
One of the 'international bright sparks' that was attracted by ESWATINI- 40 YEARS HENCE's crusade on the project of the Recording of Swazi Law and Custom was Advocate Dr. Adelle van Schalkwyk, a business executive from South Africa - whose research for a doctorate was based on Swaziland's indigenous Law of Contract.
supervision
She was working under close supervision and guidance of internationally recognised expert in customary law, Professor Dr. Frans Whelpton from the University of South Africa (UNISA).
Professor Whelpton, of the Department of Constitutional International and indigenous Law of UNISA, is the Project Advisor of the Recording of Swazi Law and Custom.
ESWATINI - 40 YEARS HENCE is in possession of Advocate Dr. van Schalkwyk's thesis titled: "The Indigenous Law of Contract with Particular Reference The Swazi People In The Kingdom Of Swaziland."
It was published in 2007 - the year the doctorate was conferred on her.
One of the most interesting of her findings was that among the Swazi people various principles can be distinguished within the organisation of their social life, emphasising commitment to the group, uniformity and communality.
"The Swazi philosophy of life is tempered by the principle of survival of the whole community and a sense of cooperation, interdependence and collective responsibility. Each member of the extended family has a social function to perform and to conform with to ensure that the family functions as a reproductive and economic unit. For the Swazi people a philosophy of existence can be summed up as umuntfu ngumuntfu ngebantfu - a person is a person in relation to other people," Dr van Schalkwyk found.
The complexibility of rights and duties in the Swazi community is described by Dr van Schalkwyk in terms of three underlying principles; namely inhlonipho [respect] kutinikela [commitment and dedication] and umtfwalo [responsibility], respectively. Respect is the most important principle. It governs behaviour in the family, and social context and bears no relation to any attributes other than a person's seniority or place or rank in the family within the context of the family group.
Dr van Schalkwyk found that genealogical rank is of paramount importance in Swazi society and underlines the status, consciousness.
"A form of class distinction is embodied in custom which does not apply to those holding high public office, such as the Ingwenyama or tikhulu, but which is extended to the descendants of the ruler. The respect rulers have in their communities are extended to their families," she found.
The principle of equality as contained in the Bill of Rights is seen to undermine the hierarchical ranks in rural communities and also the belief in ancestors who sanction the principle of seniority in which senior persons play an active role.
Commitment is the principle that makes it possible for commonality to exist within the context of the family and the wider community. According to Dr van Schalkwyk this simply means that individuals are not separate from the group and that individual rights should always be weighed up against the needs and interests of the family group.
concerned
"Rights are mainly held by the family groups and each member shares in those rights according to his or her rank within the family group concerned. Therefore, no member and also no woman are without rights and all members are full, but not equal participants in these group rights.
"One can thus conclude that the family group specifically, and the community at large, therefore, constitute the framework within which individuals exercise their political, economic, and social rights and freedom. It would be correct to say the rights of individuals are, therefore, limited by the rights of the community, since the individual forms part of Swazi society. The emphasis is, however, not on the individual as such, since communal ethics is the first priority and rights are understood within the context of the group which functions as a corporate legal entity and which also underlies group directness of Swazi life," Dr van Schalkwyk found.
WHY THE STUDY:
I asked Dr van Schalkwyk why the interest in the Law of Contract in terms of Swazi Law and Custom.
She said the study was undertaken to establish whether the legal phenomenon known as a contract exists among the people of Swaziland.
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, micro study has been done in the Kingdom of Swaziland to establish if own value systems are altered or replaced when Western legal institutions are introduced.
"Research data was obtained by way of interviewing a panel of experts in the Kingdon of Swaziland. Through the process of gathering information, legal principles were described and the function of social processes noted. Different Swazi contracts and general principles were identified. It also came out clear from this research that a contract in terms of Swazi Law and Custom is more than a device for establishing economic and legal implications of a transaction," Dr van Schalkwyk found. She discovered that 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," she found.
THE DISTINCTIVENESS OF THE LAW OF CONTRACT OF THE SWAZI PEOPLE
Advocate Dr van Schalkwyk found that notwithstanding the influence of cultural factors such as westernmisation, modernisation and Christianity on the culture of the Swazi people, Swazi Law and Custom is still used as the country's principal law.
Social and economical changes have resulted in the traditional small scale economy being changed by a monetary system, compensation and even emabheka are nowadays primarily given in cash. Inspite of the above- mentioned influences the Swazi people's legal values have not been replaced by western legal institutions, but have given rise to distinctive value systems.
In some instances, however, it is clear that the influence of the Western culture, cost that certain contracts are concluded in its own distinctive way. The emancipation of unmarried Swazi people which shifted the emphasis according to Western influences from the group to the individual, played a major role in this regard. The same emphasis is therefore no longer placed on a group 'orientated' way of life, although it will never totally disappear because of the unity constantly created within the group.
Most of the contractual disputes among the Swazi people are settled outside the official settlement mechanisms and for this purpose use is made of negotiations and mediations.
Due to the fact that the dispute resolution in these instances is rather related to the people's perceptions and values, the adjustment is further perpetuated . Even if the parties cannot reconcile their differences and the matter takes its course, the Swazi courts will still endeavour to settle the matter amicably by way of conciliation and mediation.
THE BASIS OF CONTRACTUAL LIABILITY IN SWAZI LAW AND CUSTOM
Dr van Schalkwyk made an interesting finding that a mere promise is not enforceable in terms of Swazi Law and Custom. There should be a kind of a performance - or part performance - by one of the parties before a contract can be enforced. The Swazi people say a clever man changes his mind. Indvodza ilala igucuka. Prescription as it is found in the Western laws is also not known in Swazi law and custom as the Swazi people say- licala kaliboli. Dr van Schalkwyk also found that consequential damages arising from a breach of contract is not enforceable as the Swazi people say - ungabali emacandza inkhukhu ingaka choboseli - do not count your chicks before they are hatched.
A mere promise is not enforceable. The contracts are concluded by the head of the family after consultation with members of the family and tell them about the contract, they must go and think about it and then present their views in the proper forum.