MAHLIKILILI DHALAMINI Vs. KING

JUDGEMENT

(1.) In this case on 8 April 1940, the three appellants were convicted in the High Court of Swaziland by Huggard C.J. of the murder of one Nkalane Vilakazi, and were sentenced to death. On appeal to His Majesty in Council by special leave, their Lordships, on 20 May 1942, intimated that they would recommend that the conviction be set aside and would give their reasons at a later date. This they now proceed to do.

(2.) The three appellants, together with the alleged victim, Nkalane, were natives resident in the central district of Swaziland. The case for the Crown was that the three accused, with a fourth man who was also convicted, but is now dead, agreed together to kill Nkalane in order to use certain parts of his body to make "medicine" to increase their crops. One, Mafukufuku, was alleged to be a party to this conspiracy, and he was called as a witness for the Crown and spoke to the agreement to the killing of Nkalane in the presence of the four accused and himself, and to the mutilation of the body. It was alleged that after the killing one Jojosa a "medicine man" was summoned by the first accused to supply some old war medicine for a "body." He was told by the first accused that the confederates had killed Nkalane and that the medicine was required to purify them from the killing. According to Jojosa, who gave evidence, he first sent some medicine, then visited the kraal of the first accused where he met the four accused and Mafukufuku, ordered them to kill a black heifer in calf, and with the foetal fluid and part of the flesh made the necessary brew to achieve the desired purpose. The accused gave evidence strenuously denying the allegations and disputed the alleged native customs both as to the medicine for the crops, and for the purification from the killing. It is obvious also that grave questions arose as to the value of the evidence, both of Mafukufuku and of Jojosa. The former was clearly an accomplice and the latter also, so far as he was an accessory after the fact. There were further questions as to discrepancies between the evidence they had given at the preliminary examination, and at the trial. Their Lordships, however, at the hearing of the appeal reserved discussion by counsel of these points, and decided to hear in the first instance the complaint as to an alleged violation of the rules governing criminal trials in Swaziland, which is the matter upon which they eventually decided to advise that the convictions be set aside.

(3.) Swaziland, which before the conquest of the Transvaal in 1903, had been governed by the South African Republic, on that conquest was taken over by the British Government who by an Order-in-Council in 1903 made provision for its administration. By a Proclamation of 15 October 1904, the laws in force in the Transvaal at that date were put in force in Swaziland so far as applicable: a provision which was modified by a Proclamation of 1907 which provided that the Roman-Dutch Common law save in so far as the same had been or might from time to time be modified by statute should be law in Swaziland. There was a similar provision with respect to the existing statute law. Their Lordships mention these provisions to show that the nature of the Common law has not been overlooked. They have not, however, been referred to any rule of the Roman- Dutch Common law which affected the present matter, which appears to be governed entirely by legislative enactments contained in Proclamations by His Excellency the High Commissioner for South Africa, to whom is entrusted the legislative power in Swaziland. By the Swaziland High Court Proclamation, 1938, there was established the High Court of Swaziland, to whom a single judge was assigned having original jurisdiction in civil and criminal matters and appellate jurisdiction in respect of subordinate Courts. The proclamation contained the following clauses: Section 7. If the Judge shall so direct, any trial civil or criminal may be held and any appeal heard with the aid of not more than two Administrative Officers to be appointed for that purpose by the Resident Commissioner by notice in the Gazette for such sittings of the Court as may be specified in that Notice.