Magistrate’s Courts Act
Act 66 of 1938
- Commenced on 1 January 1939
- [This is the version of this document at 1 December 1998.]
Part I – Preliminary
1. Short titleThis Act may be cited as the Magistrate’s Courts Act, No. 66 of 1938.
2. InterpretationIn this Act, unless inconsistent with the context—“Civil Service Board” means the board established under the Civil Service Order, No. 16 of 1973;“court” means a magistrate’s court established under this Act;“district” means any area which has been or may from time to time be defined under section 6 of the General Administration Act, No. 11 of 1905;“High Court” means the High Court of Swaziland;“immovable property” includes every right or interest to and in any buildings and other fixtures erected within Swaziland with the consent, express or implied, of the Government;“judge” means a judge of the High Court;“judgment” in civil cases, includes a sentence, decree, rule or order;“judicial officer” means a person empowered under this Act or under the Judicial Service Commission Act, 1982, to hold a court;[Amended A.1/1988]“Minister” means the Minister responsible for justice;[Added A.13/1982]“offence” means an act or omission punishable by law or by a regulation or order made or in force under this Act;“rules” means rules in force under section 95 of this Act;“sheriff” means the officer appointed under section 3 of the Sheriff’s Act No. 17 of 1902.
Part II – Courts
3. Constitution of courtsThere shall be and are hereby constituted courts subordinate to the High Court, to be known as “magistrate’s courts” as follows, namely:—
4. Minister may determine area of jurisdiction
5. ***[Repealed A.13/1982]
6. Nature of magistrate’s courts and force and effect of process
7. Courts to be open to the public with exceptions
8. Public access to recordsThe records and proceedings of the court shall in all cases be accessible to the public under the supervision of an officer of the court at convenient times and upon payment of such fees as may be prescribed by the rules:
Part III – Officers of the court
9. Clerk to the court
10. Messenger of the court
11. Service of process by the policeIf process of the court in a civil case is to be served and no messenger or deputy messenger has been appointed at the place where the court is held, or whenever process of the court in a criminal case is to be served, a member of the Royal Swaziland Police Force shall be as qualified to serve all such process and all other documents in such a case as if he had been duly appointed deputy messenger.
12. Messenger’s return to be evidenceThe written return of a messenger or of any person authorised to perform any of the functions of a messenger to any process of the court shall be prima facie evidence of the matters therein stated.
13. Suspension of messenger for misconduct
14. Officers appointed previously to remain in officeEvery officer of the court holding office immediately prior to the commencement of this Act shall be deemed to be duly appointed under this Act and shall be invested with power, duties and authority accordingly.
Part IV – Civil matters
15. Jurisdiction in respect of personsSaving any other jurisdiction assigned to any courts by this Act, or by any other law the persons in respect of whom the court shall have jurisdiction shall be—
16. Jurisdiction in respect of causes of action
17. Arrests and interdicts
17bis. Attachment to found or confirm jurisdictionA court of the first class may order attachment of person or property to found or confirm jurisdiction against any person who does not reside in Swaziland, in respect of an action within its jurisdiction where the claim or the value of the matter in dispute amounts to at least E40, exclusive of any costs in respect of the recovery thereof, and may grant an order allowing service of any process in such action to be effected in such manner as may be stated in such order.[Added K.O-l-C. 25/1975]
18. Curator ad litemThe court may appoint a curator ad litem in any case in which such a curator is required or allowed by law for a party to any proceedings brought or to be brought before the court.
19. AssessorsIn any action the court may summon to its assistance one or more persons to sit and act as assessors in an advisory capacity.
20. Transfer from one court to anotherAn action or proceeding may, with the consent of all the parties thereto, or upon the application of any party thereto, and upon its being made to appear that the trial of such action or proceeding in the court wherein summons has been issued may result in undue expense or inconvenience to such party, be transferred by the court to any other court of the same class or of a higher class than the court from which it is desired to remove the proceedings.
21. What judgments may be rescinded
22. Incidental jurisdiction
23. Abandonment of part of claim
24. Deduction of admitted debtIn order to bring a claim within the jurisdiction, a plaintiff may, in his summons or at any time after the issue thereof, deduct from his claim, whether liquidated or unliquidated any amount admitted by him to be due by himself to the defendant.
25. Splitting of claims disallowedA substantive claim exceeding the jurisdiction, may not be split with the object of recovering the same in more than one action, if the parties to all such actions would be the same and the point at issue in all such actions would also be the same.
26. Jurisdiction cumulative
27. Application of sections 19 to 26 to claims in reconventionIn sections 19 to 26 inclusive, “action”, “claim”, and “summons” include “claim in reconvention”, and “plaintiff” and “defendant” include “plaintiff in reconvention” and “defendant in reconvention”, respectively.
28. Jurisdiction by consent of partiesSubject to the provisions of section 29, the court shall have jurisdiction to determine any action or proceeding otherwise beyond the jurisdiction, if the parties consent in writing thereto.
29. Matters beyond jurisdiction of magistrate’s courtsMagistrate’s courts shall have no jurisdiction in matters in which—
30. Counterclaim exceeding jurisdiction
31. JudgmentThe court may, as the result of the trial of an action, grant:
32. ***[Amended P.39/1964; repealed A.1/1988]
33. Return of civil proceedingsAt such intervals as the Chief Justice may require every magistrate’s court shall forward to the High Court in such form as the Chief Justice may from time to time direct a complete list of all civil matters decided by, pending in, or brought before such court during such interval.[Added P.61/1962]
Part V – Witnesses and evidence in civil actions
34. Modes of procuring attendance of witnesses and penalty for non-attendance
36. Commissions de bene esse
Part VI – Execution
37. Jurisdiction of courts to issue executionAny court which has jurisdiction to try any action against any party thereto shall have jurisdiction to issue against any such party any form of process in execution of its judgment in such action.
38. Superannuation of judgments and revival thereof and force of warrants of execution
39. Setting aside of warrantThe court may, on good cause shown, stay or set aside any warrant of execution or arrest issued by such court.
40. Execution in case of judgment debt cededAny person who has, either by cession or by operation of law, become entitled to the benefit of a judgment debt may, after notice to the judgment creditor and the judgment debtor, be substituted on the record for the judgment creditor and may obtain execution or process in aid in the manner provided for judgment creditors.
41. Manner of execution
42. Property exempt from executionIn respect of any process of execution issued out of any court, the following property shall be protected from seizure and shall not be attached or sold—
43. Property executable
44. Interpleader claims
45. Sale in execution gives goods titleA sale in execution by the messenger shall not, in the case of movable property after delivery thereof or in the case of immovable property after registration of transfer, be liable to be impeached as against a purchaser in good faith and without notice of any defect.
46. Surplus after executionIf, after a sale in execution, there remains any surplus in the hands of the messenger, it shall be liable to attachment for any other unsatisfied judgment debtor.
47. Debt, salary or wages may be attached
48. Future and accruing earnings when attachable
49. Jurisdiction to decide disputes arising out of garnishee orders
50. Execution or payment is discharge pro tantoPayment made by or execution levied upon the garnishee under this Act shall be a valid discharge of the debt or amount of salary or wages due from him to the judgment debtor to the extent of the amount paid or levied.
51. Saving of existing law prohibiting attachment of certain propertyNothing in this Act shall be construed as authorising the attachment of any debt, salary or wages or any moneys or property specially declared by any law not to be liable to attachment.
52. Order for payment by instalments
53. Execution or suspension in case of appeal, etc.
Part VII – Civil imprisonment
54. Summons for civil imprisonment
55. Decree of civil imprisonmentThe court may, upon the return of the summons and whether the judgment debtor appears or not, make a decree of civil imprisonment against such judgment debtor and authorise the issue of a warrant for his arrest and detention in any gaol named in such warrant:Provided that—
56. Debtor may show that he has executable propertyIf on the hearing of a summons for civil imprisonment, the judgment debtor satisfies the court that he has property capable of being attached in execution by the messenger and sufficient to satisfy the judgment debt and costs, the court shall either dismiss the summons or adjourn the further hearing thereof until the said property has been sold in execution.
57. Period of imprisonmentThe period of civil imprisonment shall be decided by the court, but shall not in any case exceed three months, and, where the judgment debt and costs, so far as the same are unsatisfied, amount to less than ten emalangeni, shall not exceed fourteen days.[Amended P.39/1964]
58. Costs of civil imprisonment
59. Custody by gaolerThe keeper of any prison or gaol thereto authorised by warrant or order shall receive into his custody and detain in such gaol the judgment debtor named in such warrant or order in accordance with the tenor of such warrant and the provisions of the Prisons Regulations, No. 40 of 1964(1):Provided always that the judgment creditor shall pay and satisfy the charges for the maintenance of the judgment debtor, which shall be such an amount not exceeding thirty-five cents per day, as the court shall determine, and which shall be paid weekly in advance to the keeper of the prison or gaol, who shall then issue a daily ration to the judgment debtor based on the amount of the maintenance money received.[Amended P.39/1964]
60. Discharge from imprisonmentThe keeper of the gaol shall forthwith discharge the judgment debtor from imprisonment—
61. Effect of discharge from imprisonmentNo judgment debtor who has been once lawfully discharged from imprisonment (except a debtor discharged by an order of court suspending such imprisonment) shall ever again be liable to be arrested for the same debt or cause of action:Provided that no arrest or imprisonment or discharge therefrom shall be deemed to be a satisfaction of the judgment debt, or of any part thereof, so as to prevent the judgment creditor from having further execution against the property of the said debtor.
62. Warrant of civil imprisonment may be suspended by court of district wherein it is executedThe court of any district wherein a judgment debtor is arrested shall have the same jurisdiction as the court from which the warrant was issued to suspend such warrant and may cancel or vary any order of suspension made by itself:Provided that such first-mentioned court may not discharge altogether any warrant issued out of any other court.
Part VIII – Appeals
63. By consent decisions of magistrate’s courts may be finalNo appeal shall lie from the decision of a court if, before the hearing is commenced, the parties lodge with the court an agreement in writing that the decision of the court shall be final.
64. Appeals from magistrate’s courtSubject to section 63, a party to any civil suit or proceedings in a magistrate’s court may appeal to the High Court against—
65. Time, manner and conditions of appealEvery party so appealing shall do so within the period and in the manner prescribed by the rules, but the High Court may in any case extend such period.
66. Right of appeal not lost by satisfaction of judgmentA party shall not lose the right of appeal through satisfying or offering to satisfy the judgment in respect of which he appeals or any part thereof or by accepting any benefit from such judgment, decree or order.
67. Respondent may abandon judgment
68. Powers of High Court on appealThe High Court may, on appeal—
69. Execution of judgment of High Court on appealThe judgment of the High Court on appeal shall be recorded in the court appealed from, and shall be enforced as if it had been given in such last-mentioned court.
Part IX – Criminal matters
70. Jurisdiction in respect of classes of crimes and offences
71. Local limits of jurisdiction
72. Jurisdiction in the matter of punishment
73. Power to confer increased jurisdictionThe Minister may, in consultation with the Chief Justice by notice in the Gazette, confer upon a Magistrate jurisdiction in criminal matters to impose any penalty authorised by law in excess of the penalties prescribed in section 72(1) but not exceeding such penalties as are referred to in the second proviso thereto.[Amended P.61/1962; P.39/1964; L.N.8/1969; K.O.I-C. 26/1976; A.1/1988]
74. When summary trial to be turned into preparatory examinationIf in the course of any trial it appears that the offence under trial is from its nature or magnitude only subject to the jurisdiction or more proper for the cognisance of the High Court, or when the public prosecutor so requests, the presiding officer shall stop the trial, and the proceedings shall thereupon be those of a preparatory examination.
75. Return of criminal proceedings
76. Penalties in respect of cases remitted for trial or sentenceA magistrate before whom a case is remitted for trial in consequence of a preparatory examination or for sentence shall have the same jurisdiction as is vested in him under or in accordance with this Act.[Amended A.1/1988]
77. ***[Amended P.39/1964; repealed A.1/1988]
78. Review of sentences imposed by a magistrate’s court of the third classAll sentences in criminal cases imposed by a magistrate’s court of the third class other than sentences of imprisonment for a period exceeding three months shall be subject to review as of course by an officer appointed to hold a first class magistrate’s court in the district in which such third class magistrate’s court is situate; but without prejudice to the right of appeal against such sentence, whether before or after confirmation of the sentence by the officer reviewing the same.
79. Certain sentences subject to automatic review by the High Court
80. Submission of records and remarks to reviewing officer or judge for consideration
81. Proceedings in review
82. Warrant required for commitment to prison
83. Execution of sentence suspended under certain conditions
84. Person sentenced to whipping to be detained pending review
85. Criminal appeals
86. Appeal by prosecutor
Part X – Offences
87. Penalty for disobedience of order of courtAny person wilfully disobeying or neglecting to comply with any order of a magistrate’s court shall be guilty of a contempt of court and shall upon conviction, be liable to a fine not exceeding fifty emalangeni or, in default of payment, to imprisonment for a period not exceeding three months, or to such imprisonment without the option of a fine.[Amended P.39/1964]
88. Offences relating to executionAny person shall be guilty of an offence and liable on conviction to a fine not exceeding fifty emalangeni or, in default of payment, to imprisonment not exceeding three months or to such imprisonment without the option of a fine, if he—
89. Custody and punishment for contempt of court
Part XI – General and supplementary
90. Jurisdiction as to plea of ultra viresNo magistrate’s court shall be competent to pronounce upon the validity of an Act of Parliament or King’s Order-In-Council or Notice of the High Commissioner, and every such court shall assume that such Act or King’s Order-In-Council is valid.[Amended L.N. 8/1969]
91. Amendment of proceedings
92. Review of decisionsIf a decision is given by a magistrate’s court in a criminal case on a matter of law, and the Director of Public Prosecutions or his representative is dissatisfied with such decision, the Director of Public Prosecutions or his representative may seek the ruling thereon of the High Court, and the High Court may set down the matter to be argued before it.[Amended P.57/1962]
93. Savings and non-application of Act
94. Saving existing custom of summoning Swazi accused or Swazi witnessesNothing in this Act shall affect the existing custom whereby the attendance of Swazi accused or witness or party to a civil action in any court in Swaziland may be secured through his chief or indvuna by warning, either in writing or by messenger of such chief or induna.
95. Power of Chief Justice to make rulesThe Chief Justice may from time to time, by notice in the Gazette, make rules regulating and prescribing the practice, procedure, fees, costs and charges of, and the forms to be used in, the magistrate’s courts; and all such rules shall have the same force and effect as if they had been contained in this Act.
96. Administration of oath or affirmation
97. Protection from actionsNo judicial officer shall be liable to be sued in any civil court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, if he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of to be done and no officer of any magistrate’s court or other person bound to execute the lawful warrants or order of any such judicial officer shall be liable to be sued in any civil court for the execution of any warrant or order which he would be bound to execute if within the jurisdiction of the person issuing it.[Added P.61/1962]
History of this document
01 December 1998 this version
01 January 1939
Cited documents 4
Documents citing this one 64
- Swaziland Government Gazette dated 1994-11-24 number 60
- Swaziland Government Gazette dated 1994-11-24 number 66
- Swaziland Government Gazette dated 1998-10-30 number 413
- Chere v Dlamini and Another (890 of 2018)  SZHC 144 (5 July 2018)
- Diamond v Rex  SZHC 62 (2 September 1994)
- Director of Public Prosecutions v Lukhele and Another  SZHC 77 (26 October 1994)
- Dlamini Madunguzela v King (29 of 2002)  SZSC 1 (1 January 2002)
- Ginindza And Others v Mamba And Another (8 of 2002)  SZSC 10 (7 June 2002)
- Hlanganyelani Harvesting and Business Group (Pty) Ltd v Standard Bank Swaziland Ltd & Vehicle & Asset Finance (173 of 2013)  SZHC 262 (7 October 2014)
- Hlophe v Simelane NO and Another (345 of 2009)  SZHC 177 (10 July 2009)
- Khumalo v Khumalo  SZHC 53 (28 April 2000)
- King v Mnisi (60 of 2014)  SZHC 345 (22 September 2014)
- King v Ndaba  SZHC 1 (2 February 1981)
- Manzini City Council v Magistrate Philisiwe D. Dlamini (Civil Case 4096 of 2007)  SZHC 32 (2 May 2008)
- Masuku v Magistrate Siphosini Dlamini N.O & another (500 of 2010)  SZHC 260 (22 November 2013)
- Mhlanga v King (260 of 2016)  SZHC 47 (9 March 2023)
- Ntshalintshali v Minister Of Home Affairs And Others (40 of 2008)  SZSC 34 (20 November 2008)
- R v Dlamini (12 of 2008)  SZHC 221 (1 December 2008)
- R v Gina (2 of 2008)  SZSC 10 (22 May 2008)
- R v Mavuso (10 of 2007)  SZHC 87 (6 March 2008)
- R v Motsa (27 of 2008)  SZHC 140 (29 April 2009)
- Rex v Hlandze  SZHC 20 (28 October 1987)
- Rex v Ndaba  SZHC 2 (19 February 1981)
- Rex v Nzalo  SZHC 66 (29 September 1994)
- S v Maphanga (41 of 2003)  SZHC 105 (12 August 2004)
- Shabalala v The Swaziland Government Nhlangano Magistrate  SZHC 80 (4 July 1997)
- Simelane v King  SZHC 114 (16 September 1997)
- Standard Bank Swaziland Ltd v Sokesimbone Investment (Pty) Ltd and Another (1197 of 2004)  SZHC 87 (25 June 2004)
- Thwala Siza Gangadvu v Rex (41 of 1999)  SZSC 9 (18 November 1999)
- Thwala v Rex  SZHC 177 (18 November 1999)
- Acquisition of Property Act, 1961
- Adoption of Children Act, 1952
- Arms and Ammunition Act, 1964
- Building Societies Act, 1962
- Casino Act, 1963
- Child Care Service Order, 1977
- Citrus Act, 1967
- Co-operative Societies Act, 1964
- Compulsion of Witnesses Act, 1907
- Criminal Procedure and Evidence Act, 1938
- Emergency Powers Act, 1968
- Exportation Restriction Act, 1939
- Extradition Act, 1968
- Farm Dwellers Control Act, 1982
- Fugitive Offenders (Commonwealth) Act, 1969
- General Administration Act, 1905
- Income Tax Order, 1975
- Inquests Act, 1954
- Law Officers Act, 1966
- Leprosy Act, 1904
- Mining Act, 1958
- Nurses and Midwives Act, 1965
- Nutrition Council Act, 1945
- Official Secrets Act, 1968
- Opium and Habit-forming Drugs Act, 1922
- Police Act, 1957
- Prisons Act, 1964
- Public Health Act, 1969
- Public Order Act, 1963
- Railway Regulation Act, 1964
- Swaziland Development and Savings Bank Order, 1973
- Swaziland Railway Act, 1962
- Trading Licences Order, 1975
- Vagrancy Act, 1963