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Published online by Cambridge University Press: 28 July 2009
The doctrine of judicial precedent forms an integral part of the general law of Swaziland. This doctrine would be unworkable without the publication of law reports. The following is an account of the Swaziland law-reporting process.
The Kingdom of Swaziland, which regained its independence on 6 September, 1968, has retained the dual structure of laws and courts which it inherited from the British administration. In terms of this structure the traditional Swazi law and Swazi courts operate under the umbrella of the general law and the ultimate control of the general law courts.
The country's general law is based on the Roman–Dutch law. When the British found that Civilian system of law to be well-established on their arrival in Southern Africa, they decided to respect it. However, many elements of English law were introduced. The doctrine of judicial precedent was one of them.
Even though Swaziland shares with South Africa (including its “independent homelands”), Botswana, Lesotho, Namibia and Zimbabwe a mixed general legal system which resulted from the interaction between the Roman–Dutch Civilian law and the English Common law, its general law operates independently.
1 For a general account of the history of Swaziland, consult Booth, Alan R., Swaziland—tradition and change in a Southern African Kingdom, Boulder, Colorado, 1983Google Scholar; Kuper, Hilda, The Swazi: a South African Kingdom, New York. 1963Google Scholar; Sobhuza II: Ngwenyama and King of Swaziland, London. 1978Google Scholar; Matsebula, J.S.M., A History of Swaziland, Longman Penguin, Southern Africa, (2nd ed.) 1976Google Scholar: Scutt, Joan F.. The Story of Swaziland. Mbabane, Swaziland, (4th revised ed.) 1983Google Scholar: Stevens, R. P.. Lesotho Botswana, and Swaziland: the Former High Commission Territories in Southern Africa London. 1967Google Scholar.
With regard to the legal system of Swaziland, consult Rubin, Neville “Swaziland” in Judicial and Legal Systems in Africa (ed. Allott, A. N.), London, (2nd ed.) 1970, 230–247Google Scholar; Sanders, A. J. G. M. “Characteristic features of Southern African Law” 14 (1981) Comparative and International Law Journal of Southern Africa 328–335Google Scholar, and “Legal dualism in Lesotho, Botswana and Swaziland—a general survey” 1 (1985) lesotho Law Journal 47–67Google Scholar.
2 Cf. Annah Lokudzinqa Mathenjwa v. R 1970–1976 SLR 25 at 29HGoogle Scholar, and Johnson v. Commonwealth Development Corporation 1979–1981 SLR 233 at 236E–FGoogle Scholar. The fact, that, for some time, Swaziland shared High Court judges and its Court of Appeal with the other two High Commission Territories in Southern Africa (Basutoland—now Lesotho—and Bechuanaland—now Botswana) does not mean that the territories′ general law constituted an integrated whole. Finally note that an appeal no longer lies from the Swaziland Court of Appeal to the Privy Council.
3 Twining, W. L.. “Law reporting in Sudan” [1959] JAL 176–8 at 177Google Scholar.
4 Of these, two are even pre-1963 (both being decisions of the Basutoland High Court); none of the 28 decisions had been reported previously in the HCTLR.
5 The following figures speak for themselves:
HCTLR 1926–53: pages xxiv + 328. Reported cases 64. Cases originating from Swaziland 14, of which 3 civil cases, the rest criminal cases. (The HCTLR in fact open with a Swaziland civil case: Privy Council, Civil Appeal from Swaziland Special Court: Sobhuza II v. Allistrer Miller and others).
HCTLR 1954: pages ix + 77. Reported cases 13. Cases originating from Swaziland 0.
HCTLR 1955: pages xv + 86. Reported cases 20. Cases originating from Swaziland 8 (one dated May 1940) of which 1 civil case.
HCTLR 1956: pages xix + 112. Reported cases 16. Cases originating from Swaziland 4, of which 2 civil cases.
HCTLR 1957: pages xxi + 69. Reported cases 11. Cases originating from Swaziland 3, of which 2 civil cases.
HCTLR 1958: pages xxxiii + 93. Reported cases 14. Cases originating from Swaziland 2, both criminal.
HCTLR 1959: pages xlii + 112. Reported cases 17. Cases originating from Swaziland 4, of which 1 civil case.
HCTLR 1960: pages xxviii + 103. Reported cases 13. Cases originating from Swaziland 4, of which 2 civil cases.
HCTLR 1961–62: pages xxxiii + 126. Reported cases 25. Cases originating from Swaziland 4, of which 2 civil cases.
HCTLR 1963–66; pages xxviii + 300. Reported cases 67. Cases originating from Swaziland 2, of which 1 civil case. (This, the last volume of the HCTLR, shows a very strong bias in favour of Basutoland decisions. The editor, Mr. Snyman, now professor in the Department of Criminal Law and Procedure at the University of South Africa, has informed me that he was supplied with Basutoland decisions only.)
SLR 1963–69: pages lix + 430. Reported cases 83. Cases originating from Swaziland 55, of which 22 civil cases.
SLR 1970–76: pages xlvi + 468. Reported cases 178, of which 30 civil cases.
SLR 1977–78: pages xxiii + 201. Reported cases 67, of which 20 civil cases.
SLR 1979–81: pages xxxvi + 363. Reported cases 120, of which 34 civil cases.
6 Composition of the Editorial Board for the 1970–1976 volume: Nathan, C. J. M., Justice, Chief; Cohen, D., Attorney-General, ; Sanders, A. J. G. M., Editor; Mohlaka, F., editorial assistantGoogle Scholar.
For the 1977–1978 volume: Nathan, C. J. M., Chief justice; Cohen, D., Puisne Judge; Sanders, A. J. G. M., Editor; Mabena, P. J., editorial assistantGoogle Scholar.
For the 1979–1981 volume: Nathan, C. J. M., Chief justice; Cohen, D., Puisne Judge; Sanders, A. J. G. M., Editor; Dlhadlha, R. M., Co-editor. (Mr. Dlhadlha, it should be added, is a member of the local Side Bar and a former Senior Magistrate)Google Scholar.
7 Cf. Dawson, John P., The Oracles of the Law, Westport, Connecticut, 1968 at 50–84Google Scholar; Walker, and Walker, , The English Legal System, London, (4th ed.) 1976, 136–42Google Scholar; Zander, Michael, The Law-Making Process, London, 1980, chapter 4 “Law reporting.”Google Scholar
8 Dawson, op. cit., 85–86; Tetteh, E. Kofi “Law reporting in anglophone Africa” (1971) 20 I.C.L.Q. 87, 92Google Scholar. (Tetteh suggests for anglophone Africa the establishment of “a law reporting organization which combines the physical features of the official [sic] Law Reports of England with the economic features of state reporters in the United States”, by which he means “an independent council of law reporting established by statute” (at 98), which, however, should be State-supported by way of subsidies (at 97) and confer upon the editor and his staffjudicial rank and status (at 93, 98).)
9 As quoted by Dawon, op. cit., 84, from the Report of the Law Reporting Committee (UK, 1940)Google ScholarPubMed.
10 The Editor's Preface to the 1963–69 SLR.
11 Munday, R. J. C., “New dimensions of precedent”, 1978 Journal of the Society of Public Teachers of Law 201–17 at 209–11Google Scholar; Niekirk, Paul H., A Manual on Law Reporting Commonwealth Secretariat, London, 1977, 3–4Google Scholar.
12 See n. 7.
13 For a detailed account of the editing process, the English style, see Niekirk, op cit.
14 Fisher v. Prince (1762) 3 Burrows 1363Google Scholar.
15 Cf Komar, Roman N., Reasons for Judgment—a Handbook for Judges and other Judicial Officers, Toronto, 1980Google Scholar.
16 The following examples are all taken from the SLR: ab initio, ab intestate, ad fundandam jurisdictionem, ad hoc, a fortiori, aliunde, a quo, audi alteram partem, autrefois acquit, autrefois convict, bona fides, casus fortuitus, consensus, contra bonos mores, crimen falsi, culpa, de bene esse, de bonis propriis, de novo, dies induciae, dolus, domicilium citandi, dominus litis, ejusdem generis, error in negotio, error in persona, ex abundanti cautela, ex facie, ex hypothesi, ex lege, ex parte, ex post facto, expressio unius est exclusio alterius, ex turpi causa non oritur actio, functus officio, generalia specialibus non derogant, idem, in casu, in facie curiae, in fine, in fraudem legis, in fuga, in initio, in limine, in loco, in pari materia, in re, in specie, inter alia, ipso facto, jurat, lex non cogit ad impossibilia, litis contestatio, locus standi, mala fides, mens rea, mero motu, mutatis mutandis, nomine officio, novus interveniens, ob causam necessariam, obiter dictum, omnia preaesumuntur rite esse acta, onus, pendente lite, per incuriam, postea, prima facie, pro non scripto, ratio decidendi, res judicata, res nova, sine die, socius criminis, stiplatio alteri, sui generis, supra, ultra vires, versus, vi aut clam, vide, viva voce.
17 Tetteh loc. cit., 95–96.Google Scholar