Date published: 01-04-2025

In Eswatini, the principle of pacta sunt servanda—Latin terminology for “agreements must be kept”—is fundamental in contract law, emphasizing that parties are generally bound by the terms they voluntarily agree upon. However, when it comes to jurisdiction clauses that attempt to exclude the authority of Eswatini courts, recent case law indicates that such agreements are not always upheld.​

In the Solid State Power (Swaziland)[i] 2024 judgment, the High Court of Eswatini addressed the enforceability of foreign jurisdiction clauses. In the circumstances a written distribution contract had been concluded welding the parties together. The court noted that there was no clause in the agreement that ousted its jurisdiction and further stated that even if such a clause existed, it would not legally be possible to exclude the court’s authority. This underscores the court’s position that parties cannot contractually remove its jurisdiction through foreign jurisdiction clauses. The court specifically had this to say:

“[21]      In order to demonstrate that it is extremely difficult to oust the unlimited original jurisdiction of this Court even by an Act of parliament there is the case of Pick ‘n’ Pay Retailers (Pty) v The Gables (Pty) Ltd and others (1639/2012)[2013] SZHC 57 (11 March 2013) where Ota J stated as follows at pgs. 16, 17, 20 and 21:-

                ‘IS THE HIGH COURT’s ORIGINAL JURISDICTION OUSTED BY THE ACT

Before answering the above poser, let me interpolate here to observe that, it is a cardinal duty of every superior court of record to guard its jurisdiction jealously except where that jurisdiction is ousted by clear and ambiguous words of statute.’ ”

The Supreme Court in Golide Kasikhova (pty) [ii] reaffirmed that once parties have reduced their agreement into writing, it supersedes all and previous related agreements. A statute or clause which seeks to oust the jurisdiction of a particular court should not be capable of more than one meaning or interpretation. Where more than one interpretation is possible the legal principle is for the court to interpret against the ouster clause.

Analysis:

These cases illustrate that while pacta sunt servanda obliges parties to honour their contractual commitments, Eswatini courts maintain their jurisdiction despite any agreement to the contrary. The judiciary prioritizes its authority to adjudicate disputes, especially when public policy considerations are at stake. Therefore, even if parties include foreign jurisdiction clauses in their contracts, Eswatini courts may assert their jurisdiction if deemed appropriate.​

Conclusion:

While the sanctity of contracts is a core principle in Eswatini law, recent court decisions demonstrate that jurisdictional clauses attempting to oust the authority of Eswatini courts are not necessarily enforceable. The courts retain the discretion to assert jurisdiction to ensure justice and uphold public policy, regardless of contractual provisions to the contrary.

• For further information and legal advice on the above you may contact the writer.

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[i] Solid State Power (Pty) Ltd v Solid State Power Swaziland (Pty) Ltd (410/23)[2024] SZHC 271 (15 November 2024)

[ii] Golide Kasikhova (pty)Ltd V Asikhutulisane properties (pty) Ltd (18/2023) [2025] SZSC 134 (18 March 2025)