Tort law at Eswatini
In Eswatini, tort law operates under a framework influenced by Roman-Dutch common law, with elements of Swazi customary law. The legal system is dualistic, incorporating both statutory and customary legal principles. Tortious claims in Eswatini are primarily addressed through the law of delict, which is the counterpart to tort law in other jurisdictions.
⚖️ Legal Framework
The Constitution of Eswatini (Section 252) affirms the application of Roman-Dutch common law, as it stood in the Transvaal on 22nd February 1907, subject to modifications by statute or constitutional provisions. This common law foundation governs civil liability arising from unlawful acts, including negligence, assault, defamation, and product liability. Additionally, Swazi customary law is recognized and applied, provided it does not conflict with statutory law or constitutional principles .
🧾 Key Principles of Delictual Liability
Delictual liability in Eswatini encompasses several core elements:
Wrongfulness (Unlawfulness): The defendant's conduct must be legally wrongful, meaning it infringes upon a legally protected right without justification.
Fault: The defendant must be at fault, either intentionally (dolus) or negligently (culpa), in causing the harm.
Causation: There must be a direct causal link between the defendant's conduct and the harm suffered by the plaintiff.
Damages: The plaintiff must have suffered actual harm, which can be physical, psychological, or financial.
These principles align with the Roman-Dutch delictual framework and are applied in Eswatini's courts.
🏛 Judicial System and Case Law
Eswatini's judiciary comprises the High Court and the Supreme Court, which handle civil matters, including delictual claims. Notable cases illustrating the application of delict law include:
Dlamini v Maseko (68 of 2020): The Supreme Court addressed contributory negligence in a case where both the owner of an ox that strayed onto the road and the driver who swerved to avoid it were found partially liable for the accident .
Swaziland Government v Ntezinde and Another (1409 of 2014): The High Court discussed the requisites for granting an interdict, emphasizing the need for a clear right and the absence of adequate alternative remedies .
Dlamini v Swaziland Government (509 of 2004): The High Court dealt with a case involving negligence by government officials in the misdescription of land, leading to a claim for damages .
These cases demonstrate the application of delictual principles in Eswatini's legal system.
📌 Practical Considerations
Statutory Modifications: While Roman-Dutch common law forms the basis of delictual liability, statutory laws may modify or supplement these principles.
Customary Law: Swazi customary law may influence certain aspects of delictual claims, especially in matters involving personal relationships and community practices, provided they do not contravene statutory law or the constitution.
Legal Representation: Given the complexities of navigating both common law and customary law, individuals seeking to pursue delictual claims are advised to consult legal professionals familiar with Eswatini's dual legal system.
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