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Corroboration of Accomplice Evidence in Swaziland: Some Thoughts on Judicial Interpretations and their Implications

Published online by Cambridge University Press:  28 July 2009

Medard R. Rwelamira
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Extract

The recent decision by Justice Francis Rooney of the High Court of Swaziland in the case of Rex v. Simon Dvuba has once again brought to the fore the need to re-examine the law governing accomplice evidence and its relevance to the contemporary situation in Swaziland. In that case, the accused was charged with the murder of his brother, Mxolisi, Chief of Mpolonjeni area in the Hhohho District. It was alleged that after Mxolisi's death certain parts of his body were cut away with the intention of using them for preparing ritual muthi, mainly to enhance the accused's chances of succession to the chieftaincy to which he asserted a claim of right. Ritual murder is an offence committed in private and parties bind themselves to utmost secrecy. During the trial, four witnesses gave evidence implicating the accused. Three of them claimed to have been told by him in advance of the murder that he wanted to kill the deceased. The fourth one went even further and testified that the accused admitted to her that he was responsible. What the court found surprising was that none of the witnesses warned the deceased of his impending fate or bothered to report the matter to the relevant authorities.

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Articles
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Journal of African Law , Volume 36 , Issue 1 , Spring 1992 , pp. 52 - 65
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Copyright © School of Oriental and African Studies 1992

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References

1 Criminal Case No. 107/89, High Court of Swaziland.

2 Muthi is a medicinal mixture made up of parts of human flesh and other ingredients which is supposed to bring fortune or good luck to the person on whose behalf the ritual is being performed.

3 The distinction between admissibility and sufficiency of evidence was partly predicated on whether the witness decided to give his evidence on oath or not. Wigmore argues that the quantitative conception of an oath tended to keep this distinction in the background. However, as the conception of testimony developed there was a possibility of admitting a witness and yet discriminating as to the qualitative sufficiency of his testimony and the way was thus open for its consideration. See Wigmore on Evidence, 3rd ed. para. 2032. See also Hale, , Pleas of the Crown (1680) p. 305Google Scholar; Plunkett, , Evidence of Accomplices (1863) p. 2Google Scholar; R. v. Muskot, 10 Mod. 192Google Scholar.

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24 1970–1976 Swaziland Law Reports 42Google Scholar.

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32 A similar exposition of the English law is made by Best on Evidence, 8th ed., at 171Google Scholar; Phipson on Evidence, 7th ed., at 469Google Scholar. See also the remark of Abinger, Lord in R. v. Farler, 8 C. & P. 108Google Scholar.

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35 See also R. v. John, (1943) T.P.D. 295Google Scholar; R. v. Kibi and Other, (1946) E.D.L. 197Google Scholar and R. v. Owen, (1942) A.D. 389Google Scholar.

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38 This reasoning was accepted in the case of R. v. Chiangwa, (1962) (4) S.A. 142Google Scholar.

39 (1963) (2) S.A. 389Google Scholar. Note the reasoning of Botha, J., regarding the interpretation of Schreiner, J., in the Mpompotshe case. He argues that Justice Schreiner's reasoning has been grossly misunderstood and contends that the learned Judge of Appeal was clearly dealing with the passage in the summing up of the trial judge in that case that: “It has been laid down in our law that corroboration of one accomplice may be found in the evidence of another accomplice”. It was that statement which Schreiner said “was correct for the section but wrong for the cautionary rule”. According to Botha, J., neither the trial judge in his summing up nor Schreiner referred to corroboration of an accomplice by another accomplice implicating the accused. Therefore the learned Judge of Appeal should not be understood as having laid down that a direction to the jury to this effect was wrong for the cautionary rule.

40 (1964) (2) S.A. 436Google Scholar. See also S. v. Ismail, (2) (1965) (1) S.A. 435Google Scholar which regarded the position as settled by Avon's case. Review also the judgments in S. v. Hlapezula, (1963) (4) S. A. 439Google Scholar

41 See also R. b. Mbonambi, (1957) (3) S.A. 237Google Scholar.

42 See R. v. Baskerville, op. cit., at 568Google Scholar; R. v. Gay, (1909) 2 Crim. App. Rep. 327Google Scholar; R. v. Prater, [1960] 2 Q.B. 464Google Scholar; R. v. Aylmer, (1839) 1 Crim. 4 D 116Google Scholar. See also Wigmore on Evidence, 3rd ed., 1940 VII para. 2059Google Scholar.

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54 Heydon, “The corroboration of accomplices”, op. cit., at 281Google Scholar.

55 In Swaziland this is also true in cases of ritual murders.

56 R. v. Vlock and Vlock, (1954) (1) S.A. 203Google Scholar; R. v. Bickley. 73 T.P. 239Google Scholar; R. v. Heusen, 6 Crim. App. R. 76Google Scholar; see also R. v. C, (1955) (2) S.A. 51Google Scholar. On the morality of trapping see R. v. Clever, R. v. Iso, (1967) (4) S.A. 256Google Scholar, R. v. Smalt, (1968) (3) S.A. 561Google Scholar.