applicable legal regime
Swaziland has a mixed legal system of civil, common and customary law.
While official government intervention or arbitration is available on request, most disputes are settled through the Industrial Court.
The government accepts binding international arbitration of investment disputes between foreign investors and the state.
Swaziland is a member of the ICSID and the Multilateral Investment Guarantee Agency, although there is no specific legislation providing for the enforcement of ICSID awards.
land acquisition, planning and use
About 60% of land is Swazi Nation Land, held by the monarchy in trust for the people of Swaziland. Control of the use of this land is generally delegated to local chiefs.
In terms of to the Constitution, the Land Management Board is responsible for vetting and approving applications by non-citizens to acquire land in the Swaziland. The new Constitution bars the vesting of land ownership by foreign-owned companies or foreigners, unless ownership was attained before the promulgation of the Constitution on 8 February 2006.
|The Competition Act regulates merger control in Swaziland, but there are no merger thresholds.|
The Act defines a merger as the acquisition of a controlling interest in any trade involved in the production or distribution of any goods or services; or any asset which is or may be utilized for or in connection with the production or distribution of any commodity.
A merger filing fee is charged at 0.1 % of the combined annual turnover or assets, whichever is greater. The amount charged for notification of a merger shall not exceed the amount of SZL600 000 for any single merger notified.
The Swaziland Competition Commission will take public interest considerations into account in making a determination on the merger.
Swaziland is a pre-implementation regime, therefore approval must be sought from the Swaziland Competition Commission prior to implementation of the proposed transaction.
Any person who implements a merger in contravention of the Competition Act commits an offence which attracts penal and criminal sanctions of a fine not exceeding SZL250 000, or imprisonment for a term not exceeding five years, or both.
Swaziland is a member of a regional competition body, COMESA, which regulates merger control. Merger activities in Swaziland should be conducted with COMESA in mind.
| prohibited practices|
The Act prohibits any category of agreements, decisions or concerted practices which have, as their object or effect, the prevention, restriction or distortion of competition to an appreciable extent in the Swaziland or in any substantial part.
Cartel conduct (such as price fixing, market division and collusive tendering) and minimum resale price maintenance are prohibited by the Act.
The Act prohibits abuses of dominance.
The Swaziland Competition Commission operates a corporate leniency programme for a firm that voluntarily discloses the existence of any agreement or practice which is prohibited by the Act and cooperates with the Swaziland Competition Commission in its investigations.
Any conduct that is in contravention of the Act attracts criminal and penal liability, being a fine of SZL250 000 or imprisonment not exceeding five years, or both.
COMESA regulates prohibited practices in the COMESA Common Market. Activities in Swaziland should be conducted with this regional competition body in mind.
Every foreign national who enters Swaziland to work must obtain an appropriate work permit. Citizens from certain countries, in addition, require a visa to enter Swaziland.
In terms of Swaziland’s localisation policy, when applying for a work permit, an employer must demonstrate that there is not a Swazi with adequate qualifications and experience to fill the position, and that the employer has instituted a training plan in terms of which the particular position would eventually be localised.
|local employment vs secondment|
It is not a legal requirement for either local or foreign employees to be employed by a local entity in Swaziland to work in Swaziland, provided that their contracts of employment comply with local laws.
A secondment must be for a specific period of time and cannot be indefinite.
An expatriate employee must hold a work permit, which may be applied for by the entity to whom his/her services will be rendered.
|fixed term contracts and temporary employment services|
Fixed-term contracts may be entered into and no special rules apply to such fixed term contracts.
Although labour broking is currently allowed, it has become unpopular and is being discouraged due to significant pressure from unions seeking to protect their members. There currently is a draft bill which seeks to prohibit labour broking.
|participation in statutory schemes|
Only local employees are obliged to be members of the Swaziland National Provident Fund ("SNPF"). Expatriates are not entitled to or obliged to make contributions thereto.
|payment in local currency||Where an employee is seconded, his/her remuneration may be paid where he/she is employed in that currency. Subsistence and/or out-of-country allowances must be paid in local currency.|
|restraint of trade agreements||Restraint of trade agreements are generally enforceable in Swaziland, provided that the prohibition is not contrary to public policy and that the restraint is reasonable in its application in terms of the area of operation and the time of restraint.|