WORLD TRADE  
ORGANIZATION  IP/N/6/SWZ/1 
20 July 2007 
 
 (07-3082) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Original:  English 
 
 
 
CHECKLIST OF ISSUES ON ENFORCEMENT1 
 
Responses from Swaziland  
 
 
Civil and Administrative Procedures and Remedies 
  (a) Civil judicial procedures and remedies  
 
1. Specify the courts which have jurisdiction over IPR infringement cases. 
  
 The High Court and the Supreme Court (Court of Appeal). 
 
2. Which persons have standing to assert IP Rs? How may they be represented? Are there 
requirements for mandatory personal appearan ces before the court by the right holder? 
  Owners of the intellectual property rights ma y be represented by intellectual property 
practitioners. There are no mandatory personal app earances before the court by the right holder. 
 
3. What authority do the judicial authorities have to order, at the request of an opposing 
party, a party to a proceeding to produ ce evidence that lies within its control? 
 
 Judiciary authorities are empowered to order an opposing party to produce evidence by the 
relevant legislation.  4. What means exist to identify and protect confidential information brought forward as 
evidence?  
  
 All intellectual property matters are treate d with a high degree of confidentiality. 
 
5. Describe the remedies that may be ordered by the judicial authorities and criteria, 
legislative or jurisprudential, for their use ; 
 
 - injunctions; 
 - damages, including recovery of profits,  and expenses, including attorney's fees; 
 - destruction or other disposal of infringing goods and materials/implements for 
their production; 
 - any other remedies.  
 The legal system of Swaziland is the Comm on Law system which has absorbed certain 
principles of Roman Dutch Law. Matters relati ng to evidence, injunctions, damages and other 
remedies are dealt with under the general law of civil procedure for all civil wrongs. 
                                                     
 
1 Document IP/C/5. IP/N/6/SWZ/1 
Page 2  
 
   
6. In what circumstances, if any, do judici al authorities have the authority to order the 
infringer to inform the right holder of the identity of third persons involved in the 
production and distribution of the goods of services found to be infringing and of their 
channels of distribution? 
  The legislation does not provide authority to Judicial Authorities to order infringers to inform 
the right holder of the identity of third parties involved in the production of infringing goods.   
7. Describe provisions relating to the indemnification of defendants wrongfully enjoined.  
To what extent are public authorities and/or officials liable in such a situation and what 
"remedial measures" are applicable to them?    
  Defendants wrongfully enjoined can raise a special plea of mis- joinder. A successful 
invocation of this plea results in the dismissal of proceedings against the Defendants who have been 
wrongfully joined. Public authorities and/or offici als are liable in the same way as non-State actors. 
 
8. Describe provisions governing the length a nd cost of proceedings.  Provide any available 
data on the actual duration of proceedings and their cost. 
 
 The length of pre-trial proceedings is primarily regulated by the rules of court. The rules prescribe the time limits within which court process mu st be filed. The length of proceedings is also 
affected by the backlog of pending cases  as well as the availability of judges. 
  The cost of proceedings is governed by a tari ff of fees which is contained in the rules. 
However, the tariff of fees does not reflect the actua l cost of proceedings. There are two reasons for 
this. Firstly, the tariff has not been reviewed since 1 990. Secondly, the fees in the tariff are subject to 
taxation by the taxing master.   There is no available data on the actual durati on of proceedings and the costs thereof. There 
has been no case involving the infringement of intellectual property rights.    (b) Administrative procedures and remedies  
 9. Reply to the above questions in relation to any administrative procedures on the merits 
and remedies that may result from these procedures. 
 
 The law of civil procedure is silent on admini strative procedures and remedies applicable to 
enforcement of intellectual property rights. 
 
Provisional Measures
 
 
 (a) Judicial measures  
 
10. Describe the types of provisional measures that judicial authorities may order and the 
legal basis for such authority. 
 
 Provisional measures may broadly speaking be divi ded into two categories: civil and criminal. 
The criminal provisional measure is the search of th e premises of the alleged infringer and seizure of 
alleged infringing goods. 
 
 A civil provisional measure is the Anton Piller Or der which is an interim order that aims to 
preserve evidence.  IP/N/6/SWZ/1 
 Page 3 
 
 
   The legal basis for the court’s authority to order provisional measures is the common law, the 
Criminal Procedure and Evidence Act as well as the Merchandise Marks Act.  
11. In what circumstances may such measures be ordered inaudita altera  parte ? 
  The afore-mentioned measures are ordered inaudita altera parte  where there is a real and 
well-founded apprehension that the alleged infringin g goods, the equipment used to manufacture them 
and other records of the alleged infringing business ac tivities may be hidden or destroyed or in some 
other manner be spirited away by the time the case comes to court. 
 
12. Describe the main procedures for the initia tion, ordering and maintenance in force of 
provisional measures, in particular relevant time-limits and safeguards to protect the 
legitimate interests of the defendant. 
 
 A search and seizure order is initiated by a pproaching a magistrate for a search warrant 
authorizing the search and seizure. The magistrate w ill issue the warrant if he/she is satisfied that 
there are reasonable grounds for believing that th ere are infringing goods or other records in the 
possession of any person or at any premises.   Usually the seized goods remain in the custod y of law enforcement agents until criminal 
proceedings have been concluded. There are no specific time limits within which criminal 
proceedings have to be concluded.  However, the criminal trial has to commence and conclude within 
a reasonable time.  
  The person from whom the goods were seize d can protect their legitimate interests by 
approaching the High Court and challenging the issuing of the search warrant. The High Court has the power to set aside the issuing of the search warra nt and ordering the retu rn of the seized goods. 
    
 An Anton Pillar Order is sought by way of an inaudita altera parte in camera.  The order shall 
stipulate that any of the acts to be performed under it ought to be performed by the deputy sheriff under the supervision of applicant’s attorney and a “supervising attorney”. The order should also 
provide that the sheriff keeps in their possession the material pending directions by the court. 
 
 A judicial officer before whom an application for an Anton Piller Order is made has to be 
vigilant so as to protect the respondent’s legitimat e interests. He or she has to weigh the potential 
harm that will be suffered by the respondent if th e order is granted against the potential harm to the 
applicant if relief is refused. The order grante d should not be more onerous than is necessary to 
protect the applicant’s interests. 
 
 An Anton Pillar order is an interim  order. The respondent is entitled, as soon as he or she is 
aware of the existence, to approach the Court for relief setting aside the Anton Piller order. 
 
13. Describe provisions governing the length a nd cost of proceedings.  Provide any available 
data on the actual duration of proceedings and their cost. 
 
 The length of the pre-trial proceedings is primar ily regulated by rules of the court. The rules 
prescribe the time limits within which court process mu st be filed. The length of proceedings is also 
affected by the backlog of pending cases  as well as the availability of judges. 
  The cost of the proceedings is governed by a tariff of fees which is contained in the rules. 
However, the tariff of fees does not reflect the actua l cost of proceedings. There are two reasons for 
this. Firstly, the tariff has not been reviewed since 1 990. Secondly, the fees in the tariff are subject to 
taxation by the taxing master. IP/N/6/SWZ/1 
Page 4  
 
   
 There is no available data on the actual durati on of proceedings and the costs thereof. There 
has been no case involving the infringement of intellectual property rights.  
 (b) Administrative procedures 
 
14. Reply to the above questions in relation to any administrative provisional measures. 
 
 The administrative provisional measures, if any, should be in the legislation regulating Patents, Designs and Copyright. The law of civil procedure is silent on this topic. 
 
Special Requirements Related to Border Measures
 
 
15. Indicate for which goods it is possible to apply for the suspension by the customs 
authorities of the release into free circulati on, in particular whether these procedures 
are available also in respect of goods which involve infringements of intellectual 
property rights other than counterfeit trademark or pirated copyright goods as defined 
in the TRIPS Agreement (footnote to Article 51).  Specify, together with relevant 
criteria, any imports excluded from the app lication of such procedures (such as goods 
from another member of a customs union, goods in transit or de minimis imports).  Do 
the procedures apply to imports of goods put on the market in another country by or 
with the consent of the right holder and to goods destined for exportation?  
 
 All materials, machinery and goods  that are patented in Swaziland. 
 16. Provide a description of the main elements of the procedures relating to the suspension 
of the release of goods by customs authoriti es, in particular the competent authorities 
(Article 51), the requirements for an applic ation (Article 52) and various requirements 
related to the duration of suspension (Article 55).  How have Articles 53 (security or equivalent assurance), 56 (indemnification of the importer and of the owner of the goods) and 57 (right of inspection and information) been implemented?   
 
 Not applicable in our legislations.  
17. Describe provisions governing the length a nd cost of proceedings.  Provide any available 
data on the actual duration of  proceedings and their cost.  How long is the validity of 
decisions by the competent authorities for the suspension of the release of goods into free 
circulation? 
 
 
Not applicable in our legislations. 
 
18. Are competent authorities required to act upon their own initiative and, if so, in what 
circumstances?  Are there any special provisions applicable to ex officio  action? 
 
 Not applicable in our legislations. 
 
19. Describe the remedies that the competent authorities have the authority to order and 
any criteria regulating their use.   
  Not applicable in our legislations. 
    IP/N/6/SWZ/1 
 Page 5 
 
 
  Criminal Procedures  
 
20. Specify the courts which have jurisdiction  over criminal acts of infringement of IPRs. 
 
 High Court and the Supreme Court (Court of Appeal).  21. In respect of which infringements of which intellectual property rights are criminal 
procedures and penalties available? 
  
 There are no provisions for criminal procedures.  However, a person convicted of an offence 
of infringement can be fined or be senten ced to a term of imprisonment or both. 
 22. Which public authorities are responsible fo r initiating criminal proceedings? Are they 
required to do this on their own initiative and/or in response to complaints? 
 
 Our legislation does not provide for criminal procedures yet. 
23. Do private persons have standing to in itiate criminal proceedings and, if so, who? 
 
 Our legislation does not provide for criminal procedures yet. 
24. Specify, by category of IPR and type of in fringement where necessary, the penalties and 
other remedies that may be imposed: 
  - imprisonment; 
 - monetary fines; 
 - seizure, forfeiture and destruction of infringing goods and materials and 
implements for their production; 
 - other. 
  Any person who is convicted of an offence under the Trademarks Act shall be liable to a fine 
of E2000 ($285) or imprisonment for six months or  both. In respect of patents, any person who 
performs as defined in sub-section (1) shall upon convi ction be guilty of an offence punishable by a 
fine not exceeding E10, 000 ($1,429)  or imprisonment for a term not exceeding five years or both. In 
terms of the Merchandise Marks Act 24/1937, a pers on convicted of any offences of infringements, 
shall be liable to a fine not exceeding E400 ($57), or , in default of payment thereof to imprisonment 
not exceeding two years, or to both such fine and imprisonment.  
25. Describe provisions governing the length and any cost of proceedings.  Provide any 
available data on the actual duration of proceedings and their cost, if any. 
 
 No provision in the legislation for the length and costs of proceedings. 
 
__________