The Companies Act of 1912, as amended, governs the legislation regarding the formation of companies in Swaziland and distinguishes between partnerships, foreign companies, public and private companies. This legislation is in the process of being revised to bring it in line with current/modern practices. Public and private companies are limited by their share capital. Public companies have the letters Limited after their name whereas private companies have the letters (Proprietary) Limited. The most common type of investment is through private companies. The Articles of Association of such companies include the following clauses :
- a restriction of the right to transfer shares
- membership is limited to a maximum of 50, excluding employees of the company
- any offer for subscriptions of any shares or debentures to the public is not allowed
All other companies are public and are not, therefore, subject to the above restrictions.
With a private company, the minimum number of shareholders is two and directors one. However, in a public company, the requirement is a minimum of two directors and seven shareholders. So far, there is no legal requirement with regard to the nationality of the directors or shareholders. However, in some cases, exclusion of Swazi nationals may be considered as political.
In certain instances it may be more beneficial to register a Swaziland company, for an enhanced image, easier access to credit facilities, and for obtaining Government contracts.
Membership of a partnership is restricted to 20 persons, who can be either a natural or juristic person, except for some recognised professionals such as lawyers and accountants.
Instead of operating through a subsidiary, a foreign company may operate through a branch in Swaziland, and as such is classified as an external company . It is obligatory to register with the Registrar of Companies and companies must in any event comply with the provisions of the Companies Act.
- In the main, only income arising from a Swaziland source is taxed.
- Trading profits will be taxable in Swaziland if the business is conducted in Swaziland.
- Income for services is sourced in Swaziland if the services are rendered there.
- There are certain deemed source rules.
Avoidance of Double Tax
- No unilateral relief in cases of double taxation is provided under Swazi tax law. The only possible relief for taxes paid abroad on income also subject to Swazi tax is under a double taxation agreement. As Swaziland only levies tax on Swaziland source income, the question of foreign tax relief does not usually arise.
- Swaziland has concluded a number of double taxation agreements. The most significant are with South Africa and the United Kingdom and concern dividends, interest, royalties and fees.
- Both a company and a branch are taxed at the rate of 37.5% on profits derived from a Swaziland source.
- Foreign income is not subject to Swaziland tax.
- Three provisional tax payments are made in respect of each tax year. Any balance is payable on assessment after an annual tax return is lodged, whilst overpayments are refunded.
- Dividends received by a Swaziland company are exempt from company tax.
- Dividends paid to non-residents, whether companies or individuals, are subject to non-resident shareholders tax at 15% or 12,5% if paid to a company incorporated in Botswana, Lesotho, South Africa or Namibia.
- A 10% non-residents’ tax on interest is deductible from interest payable to non-residents, whether they are individuals or companies.
- Companies in a Group may not share tax losses with profitable companies, but losses may be carried forward indefinitely, provided there is continuous trade.
- Individuals are taxed at progressive rates on their income deemed to be from a Swaziland source. An individual’s tax year ends on the last day of June in each year.
- Husband and wife are both taxed individually, and there are no personal income tax rebates.
- The first E13 000 of income is exempt from tax, whereas the top tax rate of 30% is applied to income in excess of E40 000.
- Salary packages are often structured to take advantage of benefits in kind and gratuities.
- Individuals are subject to tax on dividends received.
- Sales tax at 12% or 20% is charged on certain transactions, importation of goods, sale of locally manufactured goods and services.
- Transfer Duty is payable on land and buildings and leases by the purchaser at 2% on the first E40 000, 4% on the next E20 000 and 6% on the amount exceeding E60 000.
- Stamp Duty on issue and transfer of shares at 1.5%.
- Customs and Excise Duties at varying rates are levied on a wide range of products manufactured in or imported into Swaziland.
- There are no taxes on wealth, estates or gifts.
- Special tax allowances exist to encourage exports and the training of Swazi citizens.
- New and used industrial plant and machinery qualifies for a 50% write off in the year the asset is brought into use. Wear and tear allowances are applied to the balance at prescribed rates.
- Industrial buildings and hotels qualify for an initial allowance of 50% and thereafter an annual allowance of 4%.
- The Export Credit Guarantee Scheme provides pre- and post- shipment finance credits to small and medium sized exporters.
- Free access to world markets through the Southern African Customs Union, the Preferential Trade Area of Eastern and Southern Africa, Southern Africa Development Council and the Lome Convention.
Gratuity and Leave Pay
Upon their departure from Swaziland, temporary residents may remit gratuities up to 30% of gross earned income, leave pay up to a maximum of 30 days and bonuses of up to one month’s pay, to their country of normal residence.
Payments to non-residents in respect of royalties and fees from the use of patents, trade marks, copyrights, designs etc., may be made on the basis of agreements which have been submitted to the Central Bank for approval.
Approval can be obtained from the Central Bank for permissible and necessary disbursements in respect of exports.
Management and Technical Fees
These may be paid to the holding company/head office if reasonable.
Exchange control approval is required, but will not be granted where fees are used to repatriate profits in the place of dividends. Approval will not be granted if the fee is calculated as a percentage of turnover – it must be justified by actual costs and time spent by holding company personnel.
Swaziland is a member of the Common Monetary Area (CMA), also incorporating Lesotho, Namibia and South Africa.
Inward capital transfers into Swaziland from outside the CMA requires prior approval of the Central Bank, which is routinely granted for genuine investment activity.
Local Borrowing by Non-Residents
Before raising loans or bank overdrafts within the CMA, persons or companies that are more than 25% directly, or indirectly non-CMA controlled, require the Central Bank s approval. Non-residents are expected to arrange a fair share of required funds from their own private sources.
Residents are not permitted to borrow funds from abroad without prior approval.
Dividends and Profits
Dividends derived from current trading are freely transferable, subject to provision for non-resident shareholders tax of 15%. Interest on borrowings abroad (subject to prior approval of the Central Bank) may be remitted subject to provision for non-residents tax on interest of 10%.
Companies, whose directors permanent place of residence is outside the CMA, may remit fees to the maximum of E15 000, per annum per director.
Temporary residents may remit up to one third of gross monthly income to their home country. Residents of the CMA are not permitted to remit outside the CMA but benefit from separate allowances relating to holidays and overseas travel.
- All foreign nationals taking up employment in Swaziland require a work permit and these are generally given to expatriates offering specialised skills or economic development.
- People visiting Swaziland generally do not require a visa to enter the country, provided their intended period of stay is not excessive.