—mc›ǯs r—ling restores †ignit› oˆ
MBABANE – Traditional authorities say the recent judgment issued by Judge Mumcy Dlamini has restored prestige, dignity and recognition of Customary Law in the country.
Customary law is a set of customs, practices and beliefs that are accepted as obligatory rules of conduct by indigenous people and local communities. It forms an intrinsic part of their social and economic system and way of life.
In Eswatini, the King is custodian of customary law, however, the administration and enforcement of the law is narrowed down to chiefs, traditional councils and national court presidents. Under customary law, authorities administer land management, land disputes, marriages and family disputes, among other things. However, some people still hold the notion that decisions, orders and pronouncements issued by Swazi Courts require endorsement by higher courts before execution.
In her recent judgment, Judge Dlamini ruled that decisions, pronouncement, orders and judgments issued by Swazi Courts or traditional structures had the full force of the law and did not require endorsement by any other court.
The judge stated that it was for that reason, scholars had described the Kingdom of Eswatini as a dual jurisdiction in that, Swazi Law and Custom applied on the other hand with Swazi or traditional structures having jurisdiction on such matters. She said on the other hand, common law (Roman Dutch) applied with the common courts regulating its application.
In response to the judgment, traditional authorities shared the sentiment that it (judgment) had restored prestige, dignity and recognition of customary law, which some people looked down upon.
Ekwendzeni Chief Makhosikhosi Khumalo said the judgment was good news not only to chiefs, but to the entire nation. Khumalo said with the recognition of customary law, the country would be able to eliminate gender-based violence (GBV) and unlawful taking of properties from orphaned children.
He said chiefs would be able to deal and finalise divorce matters at chiefdom level. “What we have observed is that GBV cases have increased because chiefs are not recognised as institutions that can deal with them. For example, if a couple no longer wants to be in a marriage, chiefs can deal with the matter before it escalates to violence,” he said.
Khumalo stated that dealing with divorce at chiefdom level could save emaSwati from hiring lawyers to have their matters dealt with by the High Court. He said the unfortunate part was that some people did not have money at all, meaning they found it hard to hire lawyers.
“At times, orphaned children are deprived of their properties by people who undermine the traditional structures. Some have their land taken away from them. When you do a follow-up, you find that those taking advantage of the orphans appeal the traditional ruling at the upper courts,” he said.
He added that the judgment meant