eSwatini
Criminal Procedure and Evidence Act, 1938
Act 67 of 1938
- Commenced on 1 January 1939
- [This is the version of this document at 1 December 1998.]
Part I – Preliminary
1. Short title and application
This Act may be cited as the Criminal Procedure and Evidence Act, 1938, and shall apply to all criminal proceedings instituted after the 1st January, 1939, in respect of any offence in any part of Swaziland whenever such offence was committed.2. Interpretation
In this Act unless the context otherwise requires—“Chief” has the meaning assigned to it under the Swazi Administration Act, No. 79 of 1950;“company” means a company incorporated or registered under any law generally governing companies, or under any special law or under letters patent or Royal Charter;“counsel” includes an attorney in proceedings before the High Court in which such attorney has the right of audience;“court” or “the court” in relation to any matter dealt with under a particular provision of this Act, means the judicial authority which under this Act or any other law has jurisdiction in respect of that matter;“Crown” means the Attorney-General prosecuting in the name and on behalf of His Majesty;“day” or “day-time” when used in contradistinction to “night” or “night-time”, means the space of time between sunrise and sunset;“district officer” includes a Senior District Officer, an Assistant District Officer, a Magistrate and an Assistant Magistrate;“district” means a district defined under the provisions of the General Administration Act, No. 11 of 1905;“His Majesty” shall mean the King of Swaziland;[Amended L.N.38/1967]“judge” means a judge of the High Court;“judicial officer” includes a judge, magistrate or justice;“justice” means a justice of the peace appointed or exercising functions as such under any law;“magistrate” means any person entitled to preside over a court established under the Magistrates Court Act, No. 66 of 1938;“magistrate’s court” means any court established under the Magistrates Court Act, No. 66 of 1938 and any court other than the High Court or a Swazi Court which now or hereafter possesses criminal jurisdiction under any law;“money” includes all coined money whether current in Swaziland or not, and all bank‑notes, bank‑drafts, cheques, orders, warrants, or any other authorities whatever for the payment of money;“night” or “night‑time” when used in contradistinction to “day” or “day‑time”, means the space of time between sunset and sunrise;“offence” means an act or omission punishable by law, or by a regulation or order lawfully made and in force under any statute;“peace officer” includes any magistrate or justice; a sheriff or a deputy sheriff; and police officer or person carrying out under any law the powers, duties and functions of a police officer in Swaziland; a gaoler or a warder of any prison or gaol, and any chief;[Amended P.6/1956]“person” and “owner” and other like terms, when used in reference to property or acts, include corporations of all kinds, and any other associations of persons capable of owning or holding property or doing acts; and, when relating to property, include the Government and any department thereof;“policeman” includes any person carrying out under any law the powers, duties and functions of a police officer; and “police” has a corresponding meaning;“premises” include, in addition to any land, building or structure, any vehicle, conveyance, ship or boat;“property” includes everything, animate or inanimate, corporeal or incorporeal, capable of being the subject of ownership;“public prosecutor” includes any person delegated generally or specially by the Attorney‑General under this Act;“rules of court” means rules in force under the High Court Act No. 20 of 1954, or the Magistrates Court Act, No. 66 of 1938 as the case may be;“telegraph” includes transmission by radio telegraphy or radio telephony;[Amended P.6/1956]“valuable security” includes any document which is the property of any person, and which is evidence of the ownership of any property or of the right to recover or receive any property.Part II – Prosecution at the public instance
A – Attorney-General
3. Attorney‑General vested with right of prosecuting all offences
The Attorney‑General, in accordance with the powers conferred upon him by section 91 of the Constitution is vested with the right and entrusted with the duty of prosecuting in the name and on behalf of His Majesty the King in respect of any offence committed in Swaziland.[Amended P.49/64; L.N. 8/1969]4. Prosecution by Attorney‑General in person or by substitute
The Attorney‑General may appear—5. Presiding officer may appoint prosecutor in certain cases
If through any cause whatsoever the person so appointed to conduct a prosecution or to appear at any preparatory examination is unable to act or if no person has been appointed, the officer presiding over such court or examination shall, by writing under his hand, designate some fit and proper person for such occasion to prosecute or as the case may be, to appear:Provided that where no fit and proper person is available, the presiding officer may, in his discretion, proceed with the trial of any case or the hearing of any examination in the absence of a prosecutor.6. Attorney‑General’s power of stopping prosecutions
The Attorney‑General may, at any time before conviction, stop any prosecution commenced by him or by any other person; but, in the event of the accused having already pleaded to any charge, he shall be entitled to a verdict of acquittal in respect of such charge.7. Power of ordering liberation of persons committed for further examination, sentence or trial
8. Neither acquittal nor conviction a bar to civil action for damages
Neither a conviction nor an acquittal following on any prosecution shall be a bar to civil action for damages at the instance of any person who may have suffered any injury from the commission of an alleged offence.B – Local public prosecutor
9. Powers and duties of local public prosecutor
Part III – Private prosecutions
10. Private prosecution on refusal of Attorney-General to prosecute
If the Attorney-General declines to prosecute for an alleged offence, any private party who can show some substantial and peculiar interest in the issue of the trial, arising out of some injury which he individually has suffered by the commission of such offence, may prosecute the person alleged to have committed it in any court.11. Other persons entitled to prosecute
12. Private prosecutor may apply to court for warrant
If, by virtue of the right of prosecution given to private parties in section 10 or 11, any private party desires to prosecute for any offence any person for whose liberation from prison any warrant has been issued by the Attorney-General, such private party may apply to the magistrate within whose jurisdiction such offence is alleged to have been committed, for a warrant for the further detention or, if he is on bail, for the detention of such person, and such magistrate shall make any order which to him seems right under the circumstances.13. Certificate of Attorney-General that he declines to prosecute
14. Recognisances to be entered into by private prosecutor
No private party shall take any proceedings under the right conferred upon him by this Part until he has—15. Failure of private prosecutor to appear on appointed day
16. Mode of conducting private prosecutions
A private prosecution shall, subject to this Act, be proceeded with in the same manner as if it were being conducted at the public instance, save that all costs and expenses of the prosecution shall be paid by the party prosecuting, subject to any order which the court may make when such prosecution is finally concluded.17. Competency of Attorney-General to take up and conduct prosecution at the public instance in all cases
The Attorney-General or the local public prosecutor may apply by motion to any court before which the prosecution is pending to stop all further proceedings in a prosecution at the instance of a private party, in order that the prosecution for the offence may be instituted or continued at the public instance; and such court shall make an order in terms of such motion.18. Deposit of money by private prosecutor
The registrar or clerk of the court shall demand and receive the prescribed fees for the service of any summons or subpoena or execution of any warrant of arrest or other process in a criminal prosecution at the instance of a private party.19. Costs of private prosecutions
Part IV – Prescription of offences
20. Prosecution for murder not barred by lapse of time, for other offence barred by lapse of 20 years
The right to prosecute for murder shall not be barred by any lapse of time; but the right to prosecute for any other offence, whether at the public instance or at the instance of a private party, shall, unless some other period is expressly provided by law, be barred by the lapse of twenty years from the time when such offence was committed.Part V – Arrests
A – Without warrant
21. Arrest and verbal order to arrest for offences committed in the presence of judicial officers
22. Arrest by peace officer for offences committed in his presence and on reasonable grounds of suspicion
Every peace officer and every other officer empowered by law to execute criminal warrants is hereby authorised to arrest without warrant every person—23. When peace officer may arrest without warrant
24. Failure to give particulars of name and address to a peace officer constitutes an offence
25. Arrest by private person for certain offences committed in his presence
26. Arrest by private person in case of an affray
Every private person may, without warrant arrest any person whom he sees engaged in an affray in order to prevent such person from continuing the affray, and deliver him to the police to be dealt with according to law.27. Owners of property may arrest in certain cases
The owner of any property on or in respect to which any person is found committing any offence, or any person authorised by such owner, may without warrant arrest the person so found.28. Arrest by private persons for certain offences on reasonable suspicion
Any private person may, without warrant, arrest any other person upon reasonable suspicion that such other person has committed any of the offences specified in Part II of the First Schedule.29. Arrest of persons offering stolen property for sale, etc.
If anyone may, without warrant, arrest another for committing an offence, he may also without warrant arrest any person who offers to sell, pawn or deliver to him any property which, on reasonable grounds, he believes to have been acquired by such person by means of any such offence.30. Procedure after arrest without warrant
B – With warrant
31. Warrant of apprehension by magistrate
32. ***
[Repealed A.14/1991]33. Execution of warrants
34. Telegram stating issue of warrant authority for execution of the same
35. Arresting wrong person
36. Irregular warrant or process
Any person acting under a warrant or process which is bad in law on account of a defect in substance or in form apparent on the face of it, shall, if he believes in good faith and without culpable ignorance and negligence that such warrant or process is good in law, be protected from responsibility to the same extent and subject to the same provisions as if such warrant or process were good in law, and ignorance of the law shall in such case be an excuse:Provided that it shall be a question of law whether the facts of which there is evidence may or may not constitute culpable ignorance or negligence in his so believing such warrant or process to be good in law.37. Tenor of warrant
Every warrant issued under this Act shall be to apprehend the person described therein and to bring him before a magistrate as soon as possible and without undue delay, upon a charge of an offence mentioned in such warrant.C – General
38. Assistance by private persons called on by officers of the law
39. Breaking open doors after failure in obtaining admission for the purpose of arrest or search
Any peace officer or private person who by law is authorised or required to arrest any person known or suspected to have committed any offence, may for such purpose break open the doors and windows of, and enter and search, any premises in which the person whose arrest is required is known or suspected to be:Provided that such officer or private person shall not act under this section unless he has previously failed to obtain admission after having audibly demanded the same and notified the purpose for which he seeks to enter such premises.40. Arrest — how made, and search thereon of person arrested
41. Resisting arrest
42. Power to retake on escape
If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him or cause him to be pursued and arrested in any place in Swaziland.43. Penalties for escape or aiding escape from lawful custody other than from a prison, etc.
43bis. Penalty for harbouring, concealing, etc.
A person who—44. Saving of other powers of arrest
This Part shall not be construed as taking away or diminishing any authority specially conferred by any other law to arrest, detain, or put any restraint on, any person.45. Saving of civil rights
This Part shall not, save as otherwise expressly provided, take away or diminish any civil right or liability of any person in respect of a wrongful or malicious arrest.Part VI – Search warrants, seizure and detention of property connected with offences and custody of women unlawfully detained for immoral purposes
46. Search warrants
47. Search by police without warrant
48. Search for stolen stock or produce or liquor or habit-forming drugs
49. Judicial officer may order seizure of books or documents in possession of any person
49bis. Production of account books, documents, etc., to the police for purposes of criminal investigation
50. Seizure of counterfeit coin, etc.
If any person finds in any place whatever or in the possession of any person without lawful authority or excuse any—51. Seizure of vehicle or receptacle used in connection with certain offences
On the arrest of any person on a charge of an offence specified in Part I of the First Schedule the person making such arrest may seize any vehicle or receptacle in the possession or custody of the arrested person at the time of such arrest and used in the conveyance of or containing any article or substance in connection wherewith the said offence is alleged to be or to have been committed.52. Disposal of property seized
53. Weapons seized under search warrants
54. Forfeiture of goods bearing forged trade or false merchandise mark
55. Women detained for immoral purposes
Part VII – Preparatory examination
56. Summons to appear at preparatory examination
At the request of a public prosecutor who has decided to institute a preparatory examination against any person not in custody, the clerk of the court to which such public prosecutor is attached shall make out a summons, requiring such person to appear before the magistrate of such court for the purpose of undergoing a preparatory examination and shall deliver such summons to the person who is to serve it under section 57(2).57. Contents of summons
58. Jurisdiction of cadets to hold preparatory examinations
59. Commencement of preparatory examination
60. Irregularities not to affect the proceedings
No irregularity or defect in the substance or form of the summons or warrant or in the manner of arrest, and no variance between the charge contained in the summons or warrant and the charge contained in the information, or between either and the evidence adduced on the part of the prosecution at the enquiry, shall affect the validity of any criminal proceedings at or subsequent to the hearing.61. Clerk of court to subpoena witness
62. Arrest and punishment for failure to obey subpoena or to remain in attendance
63. Tender of witness’s expenses not necessary
No repayment or tender of expenses shall be necessary in the case of a person who is required to give evidence at a preparatory examination, and who is also residing within three miles of the premises in which such examination is being held.[Amended P.49/1964]64. Witness refusing to be examined or to produce may be committed
65. Procedure where trial in magistrate’s court has been turned into a preparatory examination
If any magistrate’s court has stopped the summary trial of an accused person under the powers conferred by the law governing such court, and the proceedings have thereupon become those of a preparatory examination, it shall not be necessary for the magistrate to recall any witness who has already given evidence at such trial, but the magistrate’s record of evidence so given certified by him to be correct shall, for all purposes whatsoever, have the same force and effect and shall be receivable in evidence in the same circumstances as the depositions made in the course of a preparatory examination in the manner provided in section 66:Provided that if it appears to the magistrate himself or it is made to appear to him either by the prosecutor or the accused that the ends of justice might be served by having a witness already examined recalled for further examination, such witness shall be summoned and examined accordingly and the examination so taken shall be recorded in the manner hereinafter directed as to other examinations.66. Evidence on oath at preparatory examination
67. Recognisance of witness to appear at trial
68. Absconding witness may be arrested
69. Witness refusing to enter into recognisance
Any witness who refuses to enter into any such recognisance may, by warrant, be committed by the magistrate holding the examination to a gaol, there to be kept until after the trial, or until the witness enters into such recognisance before a magistrate having jurisdiction in the place where such gaol is situated:Provided that, if the accused is afterwards discharged, any magistrate having jurisdiction shall order such witness to be discharged.70. Accused at the close of examination in support of the charge to be cautioned that he is not obliged to make any statement incriminating himself
71. Binding over of witnesses conditionally
72. Admission of previous convictions by accused at conclusion of preparatory examination
73. Discharge of accused when no sufficient case is made out
74. Committal of accused for trial
75. Proceedings on admission of guilt
76. Committal by magistrate if the offence be committed in other than his own district
If any person charged with any offence has been summoned or warned or arrested and brought before any magistrate of any district other than that in which such crime or offence is alleged to have been committed, and if such magistrate sees cause to commit such person for examination, such magistrate may issue a warrant to commit him either to a gaol in the district in which the offence is alleged to have been committed or to a gaol in the district within which such magistrate has jurisdiction to act, or to any other gaol.77. Removal of accused from gaol of one district to that of another
The magistrate of any district shall, on application to that effect signed by the Attorney-General, issue a warrant for the removal of any accused person detained on any criminal charge under any legal warrant within the gaol of such district to the gaol of another district specified in such application for detention therein for further examination, trial or sentence or until liberated or removed therefrom in due course of law.78. Committal for further examination
79. When offence committed on the boundaries of districts or on a journey
80. Districts in which preparatory examinations may be held
81. Discretionary powers of magistrate
A magistrate holding a preparatory examination may—82. Bail before conclusion of examination in magistrate’s discretion
83. Prosecutor or magistrate to make local inspection and to cause post mortem and other examinations to be made
84. All articles to be used in evidence on the trial to be labelled for identification and to be kept in safe custody
The magistrate conducting the preparatory examination shall cause all documents and any other articles whatsoever, exhibited by the witnesses in the course of such preparatory examination and likely to be used in evidence at the accused’s trial, to be inventoried and labelled or otherwise marked, in the presence of the person producing them, so that they may be capable of being identified at such trial, and shall cause all such documents and articles to be kept in safe custody until such trial so that they may then be produced.85. Records of preparatory examination to be sent to the Attorney-General
86. Powers of Attorney-General
87. How remitted cases to be dealt with
Any case remitted to a magistrate’s court under section 86 shall be tried by such court in all respects in accordance with the relevant provisions of Parts IX, X, XII, XIII, XIV, XV, and XVI, and also in accordance with and subject to the law governing such court; and any conviction and any sentence imposed in respect thereof shall be subject to review or appeal as prescribed by such law.88. Accused to be committed for trial by magistrate before trial in the High Court
No person shall be tried in the High Court for any offence unless he has been previously committed for trial by a magistrate, whether or not such committal was on the direction of the Attorney-General under the powers conferred upon the Attorney-General by section 86(1)(c), for or in respect of the offence charged in the indictment:Provided that in any case in which the Attorney-General has declined to prosecute, the High Court may, upon the application of any private party described in sections 10 and 11, direct any magistrate to take a preparatory examination against the accused person:[Amended P.37/1957]Provided further that an accused person shall be deemed to have been committed for trial for or in respect of the offence charged in the indictment, if the depositions taken before the committing magistrate contain an allegation of any fact or facts upon which such accused might have been committed upon the charge named in such indictment although the committing magistrate may, when committing such accused upon such depositions, have committed him for some offence other than that charged in such indictment or for some other offence not known to the law:Provided also that an accused person who is in actual custody when brought to trial, or who appears to take his trial in pursuance of any recognisance entered into before any magistrate, shall be deemed to have been duly committed for trial upon the charge stated in such indictment unless he proves the contrary.88bis. Summary trial in High Court
89. Persons committed for trial or sentence entitled to receive copy of depositions of witnesses
Every accused person who is committed for trial or sentence for any offence, shall be entitled to demand, and to have within a reasonable time, from the person who has the lawful custody thereof, a copy of the depositions of the witnesses upon which he has been so committed and of his own statement and evidence (if any); and the person who has the lawful custody of such depositions, statements and evidence shall deliver a copy thereof to such person or his attorney or agent on payment of a reasonable sum not exceeding eight cents for each folio of one hundred words, or, if counsel is assigned by the court to defend the accused pro deo, shall deliver a copy thereof to the accused or such counsel free of charge:Provided that, if such demand is not made before the day appointed for the commencement of the trial of the person on whose behalf such demand is made, such person shall not be entitled to have any such copy of depositions, unless the judge presiding at such trial is of opinion that such copy may be made and delivered without delay or inconvenience to such trial:Provided further that such judge may, if he thinks fit, postpone such trial by reason of such copy not having been previously had by such accused.90. Persons under trial may inspect depositions without charge at trial
Every accused person shall be entitled at the time of his trial to inspect, without fee or reward, all depositions (or copies thereof) which have been taken, and the statement made or evidence given, at the preparatory examination by such person.91. Record of evidence in absence of accused
If it is proved after a preparatory examination has commenced that the accused has absconded and that there is no immediate prospect of arresting him, or if the accused conducts himself in such a manner that the preparatory examination cannot in the opinion of the magistrate properly proceed in the presence of such accused, the magistrate may on the instruction of the Attorney-General examine, in the absence of the accused, the witnesses (if any) produced on behalf of the prosecution and record their depositions.92. Duty of magistrate to take depositions as to alleged offence in cases where the actual offender not known or suspected
93. Access to accused by friends and legal advisers
94. True copy of warrant of commitment to be furnished to prisoners under a penalty of one hundred rand
Part VIII – Bail
A – After preparatory examination is concluded
95. Power of the High Court regarding bail
96. Bail application of accused in court
97. Rules and regulations
The Minister, in consultation with the Chief Justice, may make regulations respecting the operation of sections 95, 96 and for this Part, and may also amend any Schedule to this Act for the better carrying into effect the objectives of this Act and where necessary the Chief Justice may make rules to give effect to the objectives of this Part.[Replaced A.2/2004]98. Magistrate to determine whether the offence is bailable and notify the bail in twenty-four hours
99. Refusal of bail from the uncertain issue of act committed
If a doubt arises concerning the degree and quality of the offence from the uncertain issue in the case of an injury of which it cannot be foretold whether the person injured will die or recover, every judicial officer to whom application for bail is made may refuse to grant it until all danger to the life of the person injured is at an end.100. Conditions of recognisances
101. On failure of accused to appear at trial, recognisance to be forfeited
If upon the day appointed for the hearing of a case it appears by the return of the proper officer or by other sufficient proof that a copy of the indictment and notice of trial or, in case of a remittal to a magistrate’s court, the summons or warning has been duly served or given and the accused does not appear after he has been three times, in or near the court premises, called by name, the prosecutor may apply to the court for a warrant for the apprehension of such accused, and may also move the court that such accused and his sureties (if any) be called upon their recognisance, and, in default of his appearance, that it may be then and there declared forfeited; and any such declaration of forfeiture shall have the effect of a judgment on such recognisance for the amounts therein named against such accused and his sureties respectively.B(1) – In cases tried by magistrates’ courts
[Amended A.14/1991]102. Power to admit to bail, nature of bail and provision in case of default
B(2) – Bail in respect of theft and kindred offences
[Added A.14/1991]102A. Conditions of bail for theft and kindred offences
C – General for all criminal cases
103. Excessive bail not required
Subject to section 102A, the amount of bail to be taken in any case shall be in the discretion of the Court or judicial officer to whom the application to be admitted to bail is made:Provided that no person shall be required to give excessive bail and the amounts specified under section 95 shall not be construed as excessive.[Amended A.14/1991; A.2/2004]104. Appeal to High Court against refusal of or excessive bail
Subject to the provisions of sections 95 and 96, if an accused person considers himself aggrieved by the refusal of any magistrate or magistrate’s court to admit him to bail, or by such magistrate or court having required excessive bail, he may apply in writing to a judge who shall make such order thereon as to him in the circumstances of the case seems just.[Amended A.2/2004]105. ***
[Repealed A.2/2004]106. Insufficiency of sureties
If, through mistake, fraud, or otherwise, insufficient sureties have been accepted or if they afterwards become insufficient, the court or judicial officer granting the bail may issue a warrant of arrest directing that the accused be brought before it or him and may order him to find sufficient sureties, and on his failing so to do may commit him to prison.107. Release of sureties
108. Render in court
The sureties may bring the accused into the court at which he is bound to appear during any sitting thereof and then, by leave of such court, render him in discharge of such recognisance at any time before sentence, and such accused shall be committed to a gaol there to remain until discharged by due course of law:Provided that such court may admit such accused person to bail for his appearance at any time it deems meet.109. Sureties not discharged until sentence or discharge of the accused
The pleading or conviction of any accused person so released on bail shall not discharge the recognisance which shall be effectual for his appearance during the trial and until sentence is passed or he is discharged:Provided that the court may commit such accused to a gaol upon his trial or may require new or additional sureties for his appearance for trial or sentence, as the case may be, notwithstanding such recognisance; and such commitment shall be a discharge of the sureties.110. Death of surety
If a surety to a recognisance dies before any forfeiture has been incurred, his estate shall be discharged from all liability in respect of the recognisance, but the accused may be required to find a new surety.111. Person released on bail may be arrested if about to abscond
If an accused person has been released on bail under this Part, any magistrate may, if he sees fit, upon the application of any peace officer and upon information being made in writing and upon oath by such officer or by some person on his behalf that there is reason to believe that such accused is about to abscond for the purpose of evading justice, issue his warrant for the arrest of such accused, and afterwards, upon being satisfied that the ends of justice would otherwise be defeated, commit him, when so arrested, to gaol until his trial.112. Deposit instead of recognisance
113. Review of forfeiture of bail
The High Court may on the application of any aggrieved person or of its own motion review any order of forfeiture made under this Part and may confirm such order or may remit the whole or any part of the amount ordered to be forfeited thereunder.[Amended P.49/1964]Part IX – Indictments and summonses
A – Indictments in the High Court
114. Charge in the High Court to be laid in an indictment
115. When the case is pending
As soon as the indictment in any criminal case brought in the High Court has been duly lodged with the registrar thereof, such case shall be deemed to be pending in such court.B – Summonses and charges in magistrates’ courts
116. Lodging of charges in a magistrate’s court
If a public prosecutor has, by virtue of his office, determined to prosecute any person in a magistrate’s court for any offence within the jurisdiction of such court, he shall forthwith lodge with the clerk of such court a statement in writing of the charge against such person, describing him by his name, place of abode and occupation or degree, and setting forth shortly and distinctly the nature of such offence and the time and place at which it was committed.117. Summons in magistrate’s court
118. Charge in magistrate’s courts
119. Charges in remitted cases
C – General for all courts
120. Joinder of counts
121. Where it is doubtful what offence has been committed
If by reason of any uncertainty as to the facts which can be proved, or for any other reason whatever, it is doubtful which of several offences is constituted by the facts which can be proved, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once, or such accused may be charged in the alternative with having committed some or one of such offences.122. Essentials of indictment or summons
123. It shall be sufficient to allege the dates between which thefts took place
Any indictment or summons in respect of theft may allege that the property stated to have been stolen was taken at divers times between any two certain days named therein, and, upon such indictment or summons, proof may be given of the theft of such property upon any day or days between such two certain days.124. Indictment, etc., may charge general deficiency
In an indictment or summons in respect of the theft of money or in respect of the theft of any property by a person entrusted with the custody or care of such property, the accused may be charged and proceeded against for the amount of a general deficiency, notwithstanding that such general deficiency is made up of any number of specific sums of money or of any number of specific articles, the taking of which extended over any space of time.125. Not necessary to specify particular coin or bank-note stolen
In every indictment or summons in which it is necessary to make averment as to any money or any bank-note it shall be sufficient to describe such money or bank-note simply as money, without specifying any particular coin or bank-note, and such averment, so far as regards the description of such property, shall be sustained by proof of any amount of coin or of any bank-note, although the particular species of coin of which such amount was composed or the particular nature of such bank-note is not proved, and, in cases of money or bank-notes obtained by false pretences or by any other unlawful act, by proof that the offender obtained any coin or any bank-note or any portion of the value thereof, although such coin or bank-note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering it or to any other person, and such part has been returned accordingly.126. Indictments, etc., for giving false evidence
127. Presumption that accused possessed particular qualification or acted in a particular capacity
If an act or omission constitutes an offence only if committed by a person possessing a particular qualification or quality, or vested with a particular authority, or acting in a particular capacity, a person charged with such offence upon an indictment or summons alleging that he possessed such qualification or quality or was vested with such authority or was acting in such capacity shall, at his trial, be deemed to have possessed such qualification or quality or to have been vested with such authority or to have been acting in such capacity at the time of the commission of the alleged offence, unless at any time during the trial he or his representative expressly denies such allegation in the court trying the case, or such allegation is disproved:Provided that if after the prosecutor has closed his case such allegation is so denied or evidence is led to disprove it, the prosecutor may adduce any evidence and submit any argument in support of such allegation as if he had not closed his case.128. Rules applicable to particular indictments, etc.
129. Companies and co-partnerships may be named in indictments by their style or firm
130. Means or instrument by which act is done need not be stated
It shall not be necessary to set forth in any indictment or summons the manner in which, or the means or instrument by which, any act is done, unless such manner, means or instrument is an essential element of the offence.131. In indictment for murder or culpable homicide charge as to fact sufficient
It shall be sufficient in every indictment for murder to charge that the defendant did wrongfully, unlawfully, and maliciously kill and murder the deceased, and it shall be sufficient in every indictment for culpable homicide to charge that the defendant did wrongfully and unlawfully kill the deceased.132. In indictment for forgery and other cases copy of instrument not necessary
133. Certain particulars not required in case of an offence relating to insolvency
In an indictment or summons in respect of an offence relating to an insolvent, it shall not be necessary to set forth any debt, act of insolvency, adjudication or other proceedings in any court, or any order, warrant or document made or issued out of or by the authority of any court.134. Allegation of intent to defraud without alleging whom it is intended to defraud
135. Persons implicated in same offence or transaction may be charged together
Part X – Procedure before commencement of trial
A – In the High Court
136. Persons committed to be brought to trial at the first session provided 31 days have elapsed from commitment
137. Change of place of trial
138. Such prisoners not brought to trial at second session after commitment entitled to discharge from imprisonment
B – Magistrate’s court
139. Commencement of proceedings if accused is in custody
If a person who was arrested upon a criminal charge is brought up before a magistrate’s court in terms of section 30 or 33(5), such magistrate’s court shall forthwith commence his trial or a preparatory examination upon such charge or, if the matter is cognisable by another court, remand him to such court.[Amended P.49/1964]C – General for all courts
140. Persons brought before wrong court
141. Trial of pending case may be postponed
Subject to section 136 in a case to be tried by the High Court, and subject to section 102 in a case to be tried by a magistrate’s court, any court before which a criminal trial is pending may, if it is necessary or expedient, postpone such trial until a time, and place, and upon terms, which to such court seem proper, and further postponements may, if necessary and expedient, be made from time to time.[Amended P.49/1964]142. Adjournment of trial
If it is necessary and expedient, a trial be adjourned at any period thereof, whether evidence has or has not been given.143. Powers of court on postponement or adjournment
144. Accused to plead to the indictment or summons
Subject to section 312, the accused shall, upon the day appointed for his trial or sentence upon any indictment or summons, appear in court, or if he is in custody he shall be brought into court, and shall be informed in open court of the offence with which he is charged as set forth in the indictment or summons, and shall be required to plead instantly thereto, unless there is an indictment or summons and the accused has objected so to plead, and the court finds that he has not been duly served with a copy thereof:Provided that such court may at the request of the prosecution or the accused or of its own motion, postpone the taking of a plea if it considers this to be necessary in the interests of justice.[Amended P.49/1964]145. Effect of plea
If the accused is indicted in the High Court after having been admitted to bail, his plea to the indictment shall, unless the court otherwise directs, have the effect of terminating his bail and he shall thereupon be detained in custody until the conclusion of the trial in the same manner in every respect as if he had not been admitted to bail.146. Objections to indictment, etc., how and when to be made
147. Exception
148. Certain omissions or imperfections not to invalidate an indictment, etc.
No indictment or summons in respect of any offence shall be held insufficient—149. Proceedings if defence be an alibi
150. Indictments, etc., for libel
No count for publishing a blasphemous, seditious, obscene, or defamatory libel, or for selling or exhibiting any obscene book, pamphlet, newspaper or other printed or written matter, shall be open to objection or deemed insufficient on the ground that it does not set out the words thereof:Provided that the court may order the particulars to be furnished by the prosecutor stating what passages in such book, pamphlet, newspaper, printing or writing are relied on in support of the charge.151. Court may order delivery of particulars
152. Motion to quash indictment, etc.
153. Notice of motion to quash indictment, etc., and of certain pleas to be given
154. Certain discrepancies between indictment, etc., and evidence may be corrected
155. Pleas
156. Truth of defamatory matter to be specially pleaded
157. Person committed or remitted for sentence
158. Accused refusing to plead
159. Statement of accused sufficient plea of former conviction or acquittal
In any plea of a former conviction or acquittal it shall be sufficient for an accused to state that he has been lawfully convicted or acquitted (as the case may be) of the offence charged.160. Trial on plea to the jurisdiction
Upon a plea to the jurisdiction of the court, the court shall proceed to satisfy itself in such manner and upon such evidence as it thinks fit, whether it has jurisdiction or not.161. Issues raised by plea to be tried
If the accused pleads any plea or pleas, other than the plea of guilty or a plea to the jurisdiction of the court, he shall, by such plea without any further form, be deemed to have demanded that the issue raised by such plea or pleas be tried by the court.Part XI – Procedure in case of the insanity or other incapacity of an accused person
162. Interpretation in Part XI
For the purposes of this Part unless the context otherwise requires—“medical practitioner” means a medical officer attached to any place of safe custody or any medical practitioner from whom a judicial officer requires an opinion; and,“place of safe custody” means any mental or other hospital, prison or any other place of safe custody.[Amended P.49/1964]163. Enquiry by court as to insanity of accused
164. Defence of insanity at preparatory examination
If the accused person appears to be capable of making his defence at the time of a preparatory examination the magistrate, notwithstanding that it is alleged that such accused person was insane at the time when the act in respect of which he is charged was committed so as not to be responsible according to law for such act, shall proceed with the case and if the accused person ought in the opinion of the magistrate otherwise to be committed for trial, the magistrate shall so commit him.[Amended P.49/1964]165. Defence of insanity at trial
166. Resumption of examination or trial
167. Certificate of medical officer as to fitness to plead
168. Enquiry in absence of accused
Any enquiry into the fact of the unsoundness of mind of any person under this Part may be held in the absence of the accused person if the judicial officer is satisfied that owing to the state of such accused’s mind it would be in the interests of the safety of such accused or of other persons or in the interests of public decency that he should be absent.[Amended P.49/1964]169. Transfers from place of safe custody
An accused person in one place of safe custody may be transferred to another place of safe custody by any person having authority to make a transfer between such places.[Amended P.49/1964]Part XII – Procedure after commencement of trial
A – In the High Court and magistrate’s courts
170. Separate trials
If two or more persons are charged in the same indictment or summons, whether with the same offence or with different offences, the court may, at any time during the trial on the application of the prosecutor or of any of the accused, direct that the trial of the accused, or any of them shall be held separately from the trial of the other or others of them, and for such purpose may abstain from giving a judgment as to any of such accused.171. Defence by counsel, etc.
Every person charged with an offence is entitled to make his defence at his trial and to have the witnesses examined or cross-examined by his counsel, or other legal representative:Provided that an accused person under the age of sixteen years may be assisted at his trial before a magistrate’s court, by his natural or legal guardian, and any accused person who in the opinion of the court requires the assistance of another person may, with the permission of such court, be so assisted.172. Presence of accused
173. No information of trial of certain offences to be published
174. Conduct of trial
175. Summing up by counsel, etc.
176. Judgment
After the evidence is concluded and the legal representatives or accused (as the case may be) have addressed the court or stated that they do not wish to do so, the presiding officer may give judgment or may postpone it to a future time.177. Validity of judgment
178. Judgment as valid as if indictment, etc., had been originally correct
Every judgment which is given after the making of any amendment under this Act shall be of the same force and effect in all respects as if the indictment or summons had originally been in the same form in which it was after such amendment was made.B – In cases remitted to a magistrate’s court
179. Remittal on confession of the accused
180. Remittal otherwise than on confession of accused
C – Verdicts possible on particular indictment or summons
181. On trial for commission of an offence accused may be found guilty of attempt
182. On fraud charge court may convict of certain other offences
If an accused is tried upon an indictment, summons or charge alleging the commission of an offence in which an element consists of false representations as to the nature or quality of a certain article or substance, and if such accused would by the transactions in which those representations were made, have committed some other offence if his representations had been true, the court trying him may, if it acquits him of the first-mentioned offence, convict him as having committed or attempted to commit such other offence as if he had been charged therewith.[Amended P.6/1956]183. Charge of robbery
184. Charge of assault with intent to murder or to do grievous bodily harm
185. Charge of rape, etc.
185bis. Sentence for rape etc.
186. Indictment for murder or culpable homicide
187. Exposing an infant or concealment of birth
If at the trial of any accused person upon a charge of murder or culpable homicide, it has been proved that the person alleged to have been killed was a recently born child and it has not been proved that the accused killed such child, he may be convicted of exposing an infant or of disposing of the body of a child with intent to conceal the fact of its birth, if the evidence establishes that he committed such offence.188. Charge of housebreaking with intent to commit an offence
Any person charged, either at common law or under any statute, with breaking into any premises with intent to commit an offence specified in the indictment or summons, may be found guilty of housebreaking with intent to commit some other offence than that specified, or some offence unknown, if an intent to commit such specified offence is not proved but an intent to commit such other offence or an offence unknown is sufficiently proved.189. Charge of statutory offences of entering or being upon premises
If by statute breaking and entering or entering premises with intent to commit an offence or being without lawful excuse between sunset and sunrise in or upon any dwelling premises or enclosed area is declared to be an offence, a person charged with entering premises with intent to commit an offence specified in the indictment or summons may be found guilty of entering premises with intent to commit another offence than that specified, or an offence unknown, if an intent to commit such specified offence is not proved, but an intent to commit some offence is sufficiently proved, or he may be found guilty of being without lawful excuse between sunset and sunrise in or upon any dwelling, premises or enclosed area, if such be the facts proved.190. Person indicted for theft may on such indictment be convicted of receiving stolen goods knowing them to have been stolen
On the trial of any person upon any indictment or summons in respect of theft if the evidence, though not sufficient to substantiate the charge of theft, is sufficient to show that the accused was guilty of receiving stolen goods knowing them to have been stolen, he may be found guilty of receiving stolen goods knowing them to have been stolen; and upon any such finding the prisoner shall be liable to the same punishment as if convicted of the like offence on an indictment or summons specially framed for the offence of receiving stolen goods knowing them to have been stolen.191. Joint charges of theft and receiving stolen property knowing it to be stolen
192. Proceedings if property alleged to have been stolen at one time shall have been stolen at different times
If, upon an indictment or summons in respect of theft, it appears that the property alleged therein to have been stolen at one time was stolen at different times, the prosecutor shall not, by reason thereof, be required to elect upon which taking he will proceed, and the accused shall be liable to be convicted of every such taking in like manner as if every such taking had been separately charged.193. Proof of intent to defraud sufficient without alleging whom it was intended to defraud
On the trial of any offence in which the accused is charged with having—194. Conviction for part of crime charged
In other cases not hereinbefore specified, if the commission of the offence with which the accused is charged as defined in the statutory enactment or statutory regulation creating the offence, or as set forth in the indictment or summons, includes the commission of any other offence, the accused person may be convicted of any offence so included which is proved, although the whole offence charged is not proved.195. When evidence shows offence of a similar nature
Part XIII – Witnesses and evidence in criminal proceedings
A – Securing the attendance of witnesses
196. Process for securing the attendance of witnesses
197. Service of subpoenas
Service of subpoenae in criminal cases shall be effected in the manner provided by rules of court.198. Duty of witness to remain in attendance
Every witness duly subpoenaed or warned to attend and give evidence at any criminal trial shall be bound to attend and to remain in attendance throughout the trial unless excused by the court.199. Subpoenaing of witnesses or examination of persons in attendance by the court
200. Powers of court in case of default of witness in attending or giving evidence
201. Requiring witness to enter into recognisance
202. Absconding witnesses
203. Committal of witness who refuses to enter into recognisance
Any witness who refuses to enter into any such recognisance may be committed by the court by warrant to the gaol for the place where the trial is to be held, there to be kept until after such trial, or until the witness enters into such recognisance before a magistrate having jurisdiction in the place where such gaol is situated:Provided that, if the accused is afterwards discharged, any magistrate having jurisdiction shall order such witness to be discharged.204. Compelling witness to attend and give evidence
Section 62 shall mutatis mutandis apply in connection with any person subpoenaed or warned to attend any trial as a witness.205. Witnesses from prison
206. Service of subpoena to secure the attendance of a witness residing outside the jurisdiction of court
207. Payment of expenses of witnesses
B – Evidence on commission
208. Taking evidence on commission
209. Parties may examine witnesses
210. Return of commission
211. Adjournment of enquiry or trial
In every case in which a commission is issued under section 208 the trial, preparatory examination, or other criminal proceeding may be adjourned for a specified time, reasonably sufficient for the execution and return of such commission.C – Competency of witnesses
212. No person to be excluded from giving evidence except under this Act
Every person not expressly excluded by this Act from giving evidence shall be competent and compellable to give evidence in a criminal case in any court or before a magistrate on a preparatory examination.213. Court to decide questions of competency of witnesses
The court in which any criminal case is depending or, in the case of a preparatory examination, the magistrate may decide upon all questions concerning the competency or compellability of any witness to give evidence.214. Incompetency from insanity or intoxication
No person appearing or proved to be afflicted with idiocy, lunacy, or insanity, or labouring under any imbecility of mind arising from intoxicating or otherwise, whereby he is deprived of the proper use of reason, shall be competent to give evidence while under the influence of any such malady or disability.215. Evidence for prosecution by husband or wife of accused
216. Evidence of accused and husband or wife on behalf of accused
D – Oaths and affirmations
217. Oaths
218. Affirmations in lieu of oaths
219. When unsworn or unaffirmed testimony admissible
Any person produced for the purpose of giving evidence who, from ignorance arising from youth, defective education, or other cause, is found not to understand the nature, or to recognise the religious obligations, of an oath or affirmation, may be admitted to give evidence in any court or on a preparatory examination without being sworn or being upon oath or affirmation:Provided that before any such person proceeds to giveevidence the presiding officer before whom he is called as a witness shall admonish him to speak thetruth, the whole truth, and nothing but the truth, and shall further administer or cause to be administered to him any form of admonition which appears, either from his own statement or other source of information, to be calculated to impress his mind and bind his conscience, and which is not, as being of an inhuman, immoral, or religious nature, obviously unfit to be administered; and,Provided further that any such person who wilfully and falsely states anything which, if sworn, would have amounted to the crime of perjury, or any offence declared by any statute to be equivalent to perjury, or punishable as perjury, shall be deemed to have committed such crime or offence, and shall, upon conviction, be liable to such punishment as is provided by law as a punishment for such crime or offence.E – Admissibility of evidence
220. Proof of certain facts by affidavit
221. Reports by medical and veterinary practitioners
222. Inadmissibility of irrelevant evidence
No evidence as to any fact, matter or thing shall be admissible which is irrelevant or immaterial and cannot conduce to prove or disprove any point or fact at issue in the case which is being tried.223. Hearsay evidence
No evidence which is in the nature of hearsay evidence shall be admissible in any case in which such evidence would be inadmissible in any similar case depending in the Supreme Court of Judicature in England.223bis. Evidence through intermediaries
224. Admissibility of dying declarations
The declaration made by any deceased person upon the apprehension of death shall be admissible or inadmissible in evidence in every case in which such declaration would be admissible or inadmissible in any similar case depending in the Supreme Court of Judicature in England.225. Admissibility of depositions at preparatory examination of witness since deceased or kept away by the contrivance of the accused
226. Admissibility of confessions by accused if freely and voluntarily made without undue influence and, if judicial, after due caution
227. Admissibility of facts discovered by means of inadmissible confessions
228. Confession not admissible against other persons
No confession made by any person shall be admissible as evidence against any other person.229. Evidence of character when admissible
Except as provided in section 248 no evidence as to the character of the accused or as to the character of any woman on whom any rape or assault with intent to commit rape or indecent assault is alleged to have been committed shall be admissible or inadmissible in any such case, if such evidence would be inadmissible or admissible in any similar case depending in the Supreme Court of Judicature in England.230. Evidence of genuineness of disputed writings
Comparison of a disputed writing with any writing proved to the satisfaction of the court, or of a magistrate holding a preparatory examination, to be genuine may be made by witnesses; and such writings and the evidence of witnesses respecting it may be submitted to the court or magistrate as the case may be, as evidence of the genuineness or otherwise of the writing in dispute.231. Certified copy of criminal proceedings sufficient without production of record
If it is necessary to prove the trial and conviction or acquittal of any person charged with any offence, it shall not be necessary to produce the record of the conviction or acquittal of such person, or a copy thereof, but it shall be sufficient that it is certified or purports to be certified under the hand of the registrar or clerk of the court or other officer having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such registrar, clerk or other officer, that the paper produced is a copy of the record of the indictment, summons or charge and of the trial, conviction, and judgment or acquittal, as the case may be, omitting the formal parts thereof.232. Gazette evidence in certain cases
233. Appointment to a public office
Any evidence which would be admissible in any criminal case depending in the Supreme Court of Judicature in England as evidence of the appointment of any person to any public office, or of the authority of any person to act as a public officer, shall be admissible in criminal cases in Swaziland and before a magistrate holding a preparatory examination.F – Evidence of accomplices
234. Freedom from liability to prosecution of accomplices giving evidence
235. Evidence of accomplice not to be used against him if he should thereafter be tried for the offence
If any accomplice in any offence alleged in any indictment or summons, or the subject of a preparatory examination, has, as described in section 234, been produced as a witness by and on behalf of the public prosecutor, or of any private prosecutor (by whom there has been obtained from such officer as aforesaid, a written discharge of any such accomplice from liability to prosecution) and has given evidence upon a trial or preparatory examination, no part of the testimony which has been so given by him at such trial or preparatory examination may be given in evidence against him, if he is thereafter tried for such offence:Provided this section shall not be construed as freeing or exempting any such accomplice who has been guilty of wilful and corrupt perjury while under examination as a witness in any such trial or preparatory examination from any penalties or forfeitures to which persons guilty of wilful and corrupt perjury are liable by law or as rendering incompetent or inadmissible any evidence which would otherwise be competent and admissible in the trial of such accomplice on a charge of wilful and corrupt perjury on his examination as a witness in any such trial or preparatory examination.G – Sufficiency of evidence
236. Sufficiency of one witness in criminal cases, except perjury and treason
The court by which any person prosecuted for any offence is tried, may convict him of any offence alleged against him in the indictment or summons on the single evidence of any competent and credible witness:Provided that no court may convict any person of—237. Conviction on single evidence of accomplice
Any court which is trying any person on a charge of any offence may convict him of any offence alleged against him in the indictment or summons on the single evidence of any accomplice:Provided that such offence has, by competent evidence, other than the single and unconfirmed evidence of such accomplice, been proved to the satisfaction of such court to have been actually committed.[Amended P.14/1944]238. Conviction of accused on plea of guilty or evidence of confession
239. Admission in writing before trial of minor offence
240. Sufficiency of proof of appointment to a public office
Any evidence which would, if credible, be deemed in any criminal case depending in the Supreme Court of Judicature in England to be sufficient proof of the appointment of any person to any public office, or of the authority of any person to act as a public officer, shall, if credible, be deemed in criminal cases in Swaziland, and before any magistrate holding a preparatory examination, sufficient proof of such appointment or authority.H – Documentary evidence
241. Certified copies or extracts of documents admissible
If any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, any copy thereof or extract therefrom shall be admissible in evidence in any court or before a magistrate on a preparatory examination, if it is proved to be an examined copy or extract, or purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted; and such officer is hereby required to furnish such certified copy or extract to any person applying at a reasonable time for it, upon payment of a reasonable sum for it not exceeding ten cents for every hundred words.242. Production of official documents
Any original document in the custody or under the control of any public officer by virtue of his office shall only be produced in any criminal proceeding before any court, or before a magistrate on a preparatory examination, upon the order of the Attorney-General.243. Copies of official documents sufficient
J – Special provisions as to banker’s books
[Please note: Subpart numbering as in original.]244. Entries in bankers’ books admissible in evidence in certain cases
The entries in ledgers, day-books, cash-books and other account books of any bank (including a savings bank) shall be admissible as prima facie evidence of the matters, transactions and accounts therein recorded, on proof being given by the affidavit in writing of one of the directors, managers, or officers of such bank, or by other evidence, that such ledgers, day-books, cash-books or other account books are or have been the ordinary books of such bank, and that such entries have been made in the usual and ordinary course of business, and that such books are in or come immediately from the custody or control of such bank.245. Examined copies also admissible after due notice
246. Bank not compelled to produce any books unless ordered by court or magistrate
No such bank shall be compelled to produce the ledgers, day-books, cash-books, or other account books of such bank in any criminal proceeding unless the court or the magistrate holding the preparatory examination specially orders that such ledgers, day-books, cash-books or other account books shall be produced.247. Last three preceding sections not to apply to proceedings to which bank is a party
Sections 244 to 246 inclusive, shall not apply to any criminal proceedings to which any such bank whose ledgers, day-books or other account books may be required to be produced in evidence is a party.K – Privileges of witnesses
248. Privileges of accused persons when giving evidence
An accused person called as a witness upon his own application shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or has been convicted of, or has been charged with, any offence other than that wherewith he is then charged, or is of bad character, unless—249. Privilege arising out of the marital state
250. No witness compellable to answer question which the witness’s husband or wife might decline
No person shall be compelled to answer any question or to give any evidence, if the question or evidence is such as under the circumstances the husband or wife of such person, if under examination as a witness, might lawfully refuse and could not be compelled to answer or give.251. Witness not excused from answering questions by reason that the answer would establish a civil claim against him
A witness in criminal proceedings may not refuse to answer a question relevant to the issue, the answering of which has no tendency to accuse himself, or to expose him to penalty or forfeiture of any nature whatsoever, by reason only or on the sole ground that the answering of such question may establish or tend to establish that he owes a debt or is otherwise subject to a civil suit.252. Privilege of professional advisers
No advocate, attorney, or other legal practitioner duly qualified to practice in any court, whether within Swaziland or elsewhere, shall be competent to give evidence against any person by whom he has been professionally employed or consulted, without the consent of such person, as to any fact, matter or thing, as to which such legal practitioner, by reason of such employment or consultation, and without such consent would not be competent to give evidence in any similar proceeding depending in the Supreme Court of Judicature in England:Provided that no such legal practitioner shall, in any proceeding, by reason of any such employment or consultation, be incompetent or not legally compellable to give evidence as to any fact, matter or thing relative to or connected with the commission of any offence for which the person, by whom such legal practitioner has been so employed or consulted, is prosecuted in such proceeding, whenever such fact, matter or thing has come to the knowledge of such legal practitioner before he was professionally employed for or consulted with reference to the defence of such person against such prosecution.253. Privilege from disclosure of facts on the grounds of public policy
No witness shall, except as provided in this Act, be compellable or permitted to give evidence in any criminal proceeding as to any fact, matter or thing, or as to any communication made to or by such witness, as to which, if the case were depending in the Supreme Court of Judicature in England, such witness would not be compellable or permitted to give evidence, by reason that such fact, matter or thing, or communication, on grounds of public policy and from regard to public interest, ought not to be disclosed and is privileged from disclosure:Provided that any person, in any criminal proceeding, may adduce evidence of any communication alleging the commission of an offence if the making of such communication prima facie constituted an offence, and it shall be competent for the officer presiding at such proceeding to determine whether the making of such communication prima facie did or did not constitute an offence, and such determination shall, for the purposes of such proceedings, be final.254. Witness excused from answering questions the answers to which would expose him to penalties, or degrade his character
No witness in any criminal proceeding shall, except as provided by this Act or any other law, be compelled to answer any question which, if he were under examination in any similar case depending in the Supreme Court of Judicature in England, he would not be compelled to answer by reason that his answer might have a tendency to expose him to any pains, penalty, punishment or forfeiture, or to a criminal charge, or to degrade his character:Provided that, notwithstanding this section, an accused person called as a witness on his own application in accordance with section 216 may be asked any question in cross-examination, notwithstanding that it would tend to incriminate him as to the offence charged against him.L – Special rules of evidence in particular criminal cases
255. Evidence on charge of treason
On the trial of a person charged with treason, evidence cannot be admitted of any overt act not alleged in the indictment, unless relevant to prove some overt act alleged therein.256. Evidence on charge of giving false evidence or subornation
If a person gives evidence in the course of proceedings in the High Court or in a magistrate’s court or at a preparatory examination and is subsequently charged with giving false evidence in such proceedings, or if a person is charged with the offence of procuring or attempting to procure the giving of false evidence in the course of any such proceedings a certificate setting out the substance and effect of the charges and purporting to be signed by the officer having the custody of the records of the court in which such judicial proceedings were held, or by his deputy or assistant, together with the record of such proceedings shall be sufficient evidence of such proceedings without proof of the signature or official character of the person who appears to have signed the certificate.[Amended P.49/1964]257. Evidence on a charge of bigamy
258. Evidence of relationship on charge of incest
259. Evidence on charge of infanticide or of concealment of birth
260. Evidence as to counterfeit coin
If upon the trial of any person it becomes necessary to prove that any coin produced in evidence against him is false or counterfeit, it shall not be necessary to prove it to be false or counterfeit by the evidence of any officer of Her Brittanic Majesty’s Mint or other person employed in producing the lawful coin in Her Brittanic Majesty’s dominions, the Commonwealth or elsewhere, whether the coin counterfeited is current coin of any part of Her Brittanic Majesty’s dominions, the Commonwealth or of any foreign country, but it shall be sufficient to prove it to be false or counterfeit by the evidence of any credible witness.[Amended L.N. 38/1967]261. Evidence of gambling house
262. Evidence on charge of receiving
263. Evidence of previous conviction on charge of receiving
If proceedings are taken against any person for having received stolen goods knowing them to be stolen, or for having in his possession stolen property or property obtained by means of an offence, and evidence has been given that the stolen property or property obtained by means of an offence has been found in his possession, then if such person has been convicted of an offence involving fraud or dishonesty within five years immediately preceding the time when he was first charged before a magistrate with the offence for which he is being proceeded against, evidence of such previous conviction may be given at any stage of the proceedings and may be taken into consideration for the purpose of proving that the accused knew that the property which was proved to be in his possession was stolen or property obtained by means of an offence:Provided that not less than three days’ notice in writing has been given to the accused that proof is intended to be given of such previous conviction.264. Evidence of counterfeit coin
Upon the trial of any person accused of any offence respecting currency or coin, no difference in the date or year or in any legend marked upon the lawful coin described in the indictment and the date or year or legend marked upon the false coin counterfeited to resemble or pass for such lawful coin, or upon any die, plate, press, tool, or instrument used, constructed, devised, adapted, or designed for the purpose of counterfeiting or imitating any such lawful coin, shall be considered a just or lawful cause or reason for acquitting any such person of such offence; and it shall be sufficient to prove any general resemblance to the lawful coin which will show an intention that the counterfeit should pass for it.265. Evidence on trial for defamation
On the trial of any person charged with the unlawful publication of defamatory matter which is contained in a periodical, after evidence sufficient in the opinion of the court has been given of such publication by the accused of the number or part of the periodical containing the matter complained of, other writings or prints purporting to be other numbers or parts of the same periodical previously or subsequently published and containing a printed statement that they were published by or for such accused, shall be admissible in evidence on either side without further proof of their publication.266. Evidence on charge of stealing against clerk or servant
267. Evidence on charges relating to seals and stamps
On the trial of a person charged with any offence relating to any seal or stamp used for the purposes of the public revenue or of the post office in any part of Her Brittanic Majesty’s dominions, the Commonwealth or in any foreign country, a despatch from one of Her Brittanic Majesty’s Principal Secretaries of State or from the Governor or officer administering the government of the dominion of the Commonwealth or colony affected, transmitting to the Prime Minister any stamp, mark, or impression, and stating it to be a genuine stamp, mark, or impression of a die, plate or other instrument provided, made, or used by or under the direction of the proper authority of the country, dominion of the Commonwealth or colony in question for the purpose of expressing or denoting any stamp duty or postal charge, shall be admissible as evidence of the facts stated in such despatch; and the stamp, mark, or impression so transmitted may be used by the court and by witnesses for the purposes of comparison.M – Miscellaneous matters relating to evidence in criminal proceedings
268. Impounding documents
If any instrument which has been forged or fraudulently altered is admitted in evidence, the court or judicial officer who admits such instrument may, at the request of the crown or of any person against whom it is admitted in evidence, direct that it shall be impounded and kept in the custody of some officer of the court or other proper person, for such period and subject to such conditions as the court or judicial officer admitting such instrument deems fit.269. ***
[Repealed K.O-I-C. 31/1974]270. Unstamped instruments admissible in criminal cases
Every instrument liable to stamp duty shall be admitted in evidence in any criminal proceedings, although it may not be stamped as required by law.271. Onus of proof in prosecutions under laws imposing licences, etc.
If a person carries on an occupation or business or performs an act or has in his possession or custody or owns any article or is present at any place and he would commit or have committed an offence by carrying on such occupation or business, or performing such act, or having such article in his possession or custody or owning it, or being present at such place or entering it, if he were not the holder of a licence, permit, permission or other authorisation or qualification (referred to in this section as the necessary authorisation), to carry on such occupation or business or to perform such act or to have such article in his possession or custody or to own it or to be present at such place or to enter it, he shall, if charged with having committed such offence, be deemed not to have been the holder of the necessary authorisation unless the contrary is proved.[Amended P.6/1956]272. Admissions
273. Impeachment and support of witness’s credibility
Any party in criminal proceedings may impeach or support the credibility of any witness called against him or on his behalf in any manner and by any evidence in and by which, if the proceedings were depending before the Supreme Court of Judicature in England, the credibility of such witness might be impeached or supported by him and in no other manner and by no other evidence whatever:Provided that any such party who has called a witness who has given evidence in any such proceedings (whether such witness is or is not, in the opinion of the judicial officer presiding at such proceedings, adverse to the party calling him) may, after such party or such judicial officer has asked the witness whether he has or has not previously made a statement with which his testimony in the said proceedings is inconsistent, and after sufficient particulars of the alleged previous statement to designate the occasion when it was made, have been mentioned to the witness, prove that he previously made a statement with which such testimony is inconsistent.274. Onus of proof in prosecutions under taxation laws
If a person is charged with any offence whereof failure to pay any tax or impost to the Government, or failure to furnish any information to any public officer, is an element, he shall be deemed to have failed to pay such tax or impost or to furnish such information, unless the contrary is proved.275. Cases not provided for by this Part
In criminal proceedings, in any case not provided for in this Part, the law as to admissibility of evidence and as to the competency, examination, and cross-examination of witnesses in force in criminal proceedings in the Supreme Court of Judicature in England shall be followed in like cases by the courts of Swaziland and by magistrates holding preparatory examinations.276. Saving as to special provisions in any other law
This Part shall not be construed as modifying those provisions of any law whereby in any criminal matter specifically referred to or provided in such law a person is deemed a competent witness, or certain specified facts and circumstances are deemed to be evidence, or a particular fact or circumstance may be proved in a manner specified therein.Part XIV – Discharge of accused persons
277. Dismissal of charge in default of prosecution
278. Liberation of accused persons
279. General gaol delivery and returns
For the purposes of sections 136 and 278, the High Court may have regard to any general gaol return delivered under the provisions of the Prison Act No. 40 of 1964, or any regulations made thereunder.[Amended P.37/1957]280. Discharge from imprisonment or expiration of recognisance no bar to trial
Neither discharge from imprisonment nor the expiry of the recognisance shall be a bar to any person being brought to trial in any court for any offence for which he was formerly committed to prison or admitted to bail.281. Accused not brought to trial not obliged to find further bail
No person who has been admitted to bail and who has not been duly brought to trial or discharged from custody under section 278 shall be obliged to find further bail or shall be liable to be committed to custody either for examination or trial for the same offence in respect of which he was formerly admitted to bail:Part XV – Previous convictions
282. Previous conviction not to be charged in indictment, etc.
It shall not be lawful in any indictment or summons against any person for any offence to allege that such person has been previously convicted of any offence whether in Swaziland or elsewhere.283. Previous conviction not to be proved, etc., except in certain circumstances
Except in circumstances specifically described in this Act, no person may prove at the trial of any accused for any offence that such accused has been previously convicted of any offence, whether within Swaziland or elsewhere, or ask any accused, charged and called as a witness, whether he has been so convicted.284. Tendering admission of previous conviction after accused has pleaded guilty, or been found guilty
If any person indicted before the High Court for any offence has been previously convicted of any offence, whether within Swaziland or elsewhere, the prosecutor may, if the accused has under section 72 admitted that he has been so previously convicted and his admission has also been subscribed by the magistrate in accordance with that section, and if further he has pleaded guilty to or been found guilty of such offence, and before sentence is pronounced, may tender the admission in proof of such previous conviction, and such admission shall be received by the court upon its mere production as proof of such previous conviction unless it is shown that such admission was not in fact duly made or that the signatures or marks thereto are not in fact the signatures or marks of the accused and the magistrate respectively:Provided that if the accused made such admission under section 72 but refused to subscribe it by signature or mark, a solemn declaration signed by the magistrate and attached to the document signed by him under section 72, stating that such accused did so make the admission but refused to subscribe it shall, upon its mere production, be sufficient evidence that such accused admitted the previous conviction.285. Notice that proof of former conviction will be offered
286. Mode of proof of previous conviction
287. Finger-print records to be prima facie evidence of previous conviction
Notwithstanding anything in this Act, any finger-print or foot-print records, photographs or documents purporting to be certified under the hand of any officer having charge of the criminal records of Swaziland or of any other country, colony or territory (whether or not such records, photographs or documents were obtained under any law or regulation made under a law, and the person concerned was unable to prevent them being obtained) shall, if under this Act a previous conviction may be proved, be admissible in evidence before any court in proof of such previous conviction and shall be prima facie evidence of the facts in such records, photographs or documents set forth:Provided that such records, photographs and documents shall be produced to the court by a policeman or prisons officer having the custody of them.Part XVI – Judgment on criminal trial
288. Withdrawing charges
289. Arrest of judgment
290. Decision may be reserved
The court at which any person is tried for any offence may reserve the giving of its final decision on questions raised at the trial; and its decision whenever given shall be considered as given at the time of such trial.291. Sentence in the High Court
291bis. Continuance of proceedings
Notwithstanding any law or provision to the contrary—292. Committal to High Court for sentence after conviction in a magistrate’s court
293. Procedure on committal for sentence under section 292
294. Provisions applicable to sentences in all courts
295. Extenuating circumstances
Part XVII – Punishments
296. Nature of punishments
297. Sentence of death
The form of the sentence to be pronounced upon a person who is convicted of an offence punishable with death and sentenced to death shall be that he be returned to custody and that he be hanged by the neck until he is dead.298. Sentence of death upon a woman who is pregnant
299. Manner of carrying out death sentences
300. Cumulative or concurrent sentences
301. Discretion of the court as to the amount and nature of punishment
302. Habitual criminals
303. Imprisonment in default of payment of fines
304. Recovery of fine
305. Manner of dealing with convicted juveniles
306. Sentence of whipping
307. Sentence of whipping on male person under the age of eighteen
308. Females not to be sentenced to whipping
No female and no male person over the age of 40 years shall be sentenced by any court whatever to the punishment of whipping.[Amended K.O-I-C. 38/1975]309. Conditions to be fulfilled before whipping
No punishment of whipping imposed by a court shall be carried out unless the sentence under which it was imposed has been reviewed under section 79 of the Magistrate’s Courts Act, 1938 and such punishment shall be carried out privately in a convict prison or jail and in accordance with the regulations made under the law relating to prisons or jails.[Amended A.1/1988]310. Recognisances to keep the peace and be of good behaviour
311. Recognisances to come up for judgment
If a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge him upon his entering into his own recognisances with or without sureties, in such sum as such court may think fit, to appear and receive judgment at some future sitting of the court or when called upon.312. Payment of fine without appearance in court
313. Powers as to postponement and suspension of sentences
314. Payment of fines by instalments
315. Consequences of failure to comply with conditions of postponement or suspension of sentence
316. Further postponement or deferment of sentence
The court before which an offender appears may, if the original order related to the suspension of a sentence under section 313(2) or the payment of a fine by instalments or otherwise under section 314, and if the offender proves to the court’s satisfaction that he has been unable through circumstances beyond his control to fulfil the conditions of such order, grant an order further suspending the operation of such sentence or further deferring payment of such fine, subject to such conditions as might have been imposed at the time the original order was made.[Amended P.37/1957]317. Magistrate’s courts not to impose sentences of less than four days
No person shall be sentenced by a magistrate’s court to imprisonment for a period of less than four days, unless the sentence is that the offender be detained until the rising of the court.318. Commencement of sentences
Subject to sections 300(2) and 313, a sentence of imprisonment shall take effect from and include the whole of the day on which it is pronounced unless the court, on the same day on which sentence is passed, expressly orders that it shall take effect from some day prior to that on which it is pronounced.[Amended P.49/1964]319. Discharge with caution or reprimand
If a person is convicted before the High Court or any magistrate’s court of any offence other than one specified in the Third Schedule, such court may in its discretion discharge the offender with a caution or reprimand, and such discharge shall have the effect of an acquittal, except for the purpose of proving and recording previous convictions.[Amended P.37/1957]320. Regulations as to probation, etc.
The Prime Minister may make regulations, not inconsistent with this Act relating to the powers and duties of persons (to be known as probation officers) to whom may be entrusted the care or supervision of offenders whose sentences of imprisonment have been suspended under this Act, the circumstances under which courts may entrust such care or supervision to probation officers, the conditions which shall be observed by such offenders while on probation and the varying of such conditions, and generally for the better carrying out of the objects and purposes of this Part.Part XVIII – Costs, compensation and restitution
321. Court may order accused to pay compensation
322. Compensation to innocent purchaser of stolen property
If any person has been convicted of theft or of any offence whereby he has unlawfully obtained any property, and it appears to the court by the evidence that he sold such property or part of it to any person who had no knowledge that it was stolen or unlawfully obtained, and that money has been taken from the convicted person on his apprehension, the court may, on the application of such purchaser and on restitution of such property to its owner, order that, out of the money so taken from the prisoner and belonging to him, a sum, not exceeding the amount of the proceeds of the sale, be delivered to such purchaser.323. Restitution of stolen property
324. Return of exhibits, etc.
325. Miscellaneous provisions as to awards or orders under this Part
Part XIX – Appeals
326. When execution of sentence may be suspended
The execution of the sentence of a magistrate’s court shall not be suspended by reason of any appeal against a conviction, unless the—327. Powers of Appeal Court
In any appeal against a conviction the Court of Appeal may without prejudice to the exercise by such court of its powers under section 82 of the Subordinate Courts Proclamation (Cap. 20) and under section 5 of the High Court Act No. 20 of 1954—328. Order of court to be certified
The order or direction of the appeal court shall be certified under the hand of the presiding judge to the registrar of the court before which the case was tried, and such order or direction shall be carried into effect and shall authorise every person affected by it to do whatever is necessary to carry it into effect.Part XX – Pardon and commutation
329. Saving of royal prerogative of mercy
The power at any time to commute or remit any sentence of any court of criminal jurisdiction now or hereafter established in Swaziland, or to grant a pardon either free or subject to lawful conditions of any offender convicted by any such court, is vested in His Majesty under section 91 of the Constitution.330. His Majesty may commute sentence
331. Effect of free pardon
A free or unconditional pardon by His Majesty shall have the effect of discharging the convicted person from the consequences of the conviction.332. Conditional remission of sentence by His Majesty
333. Release on probation and breach of fulfilment of conditions of release
Part XXI – General and supplementary
334. How documents are to be served
335. Person making a statement in a criminal case entitled to copy
If a person has made to a peace officer a statement in writing, or a statement which was reduced to writing, relating to any transaction, and criminal proceedings are thereafter instituted in connection with such transaction, any person in possession of such statement shall furnish the person who made the statement, at his request, with a copy thereof.336. Mode of proving service of process
If it is necessary to prove the service of any summons, subpoena, notice, or other process, or the execution of any judgment or warrant under this Act, the service or execution may be proved by affidavit made before a justice or commissioner for oaths having jurisdiction to take affidavits in the district wherein the affidavit is made or in any other manner in which such service or execution might have been proved if it had been effected in the district or other area wherein such summons, subpoena, notice or other process or judgment or warrant emanated.337. Transmission of summonses, writs, etc., by telegraph
Any summons, writ, warrant, rule, order, notice or other process, document, or communication, which by any law, rule of court, or agreement of parties is required or directed to be served or executed upon any person, or left at the house or place of abode or business of any person, in order that such person may be affected thereby, may be transmitted by telegraph, and a telegraphic copy served or executed upon such person, or left at his house or place of abode or business, shall be of the same force and effect as if the original had been shown to, or a copy thereof served or executed upon, such person, or so left, as the case may be.338. Liability to punishment in case of offences by corporate bodies, partnerships, etc.
339. Provisions as to offences under two or more laws
340. Estimating age of person
If in any criminal proceedings the age of any person is a relevant fact of which no or insufficient evidence is available in such proceedings, the court may estimate the age of such person by his appearance or from any information which may be available, and the age so estimated shall be deemed to be such person’s correct age, unless—341. Binding over of persons to keep the peace
342. The taking of fingerprints, palm prints, specimen for analysis of blood, etc.
343. Evidence of handwriting, fingerprints, etc., of an accused
344. Breath tests
History of this document
01 December 1998 this version
Consolidation
01 January 1939
Commenced
Cited documents 9
Act 9
| 1. | Magistrate’s Courts Act | 79 citations |
| 2. | High Court Act, 1954 | 62 citations |
| 3. | Swazi Courts Act, 1950 | 31 citations |
| 4. | Pharmacy Act, 1929 | 27 citations |
| 5. | Opium and Habit-forming Drugs Act, 1922 | 25 citations |
| 6. | Prisons Act, 1964 | 20 citations |
| 7. | General Administration Act, 1905 | 11 citations |
| 8. | Sheriff’s Act, 1902 | 5 citations |
| 9. | Reformatories Act, 1921 | 4 citations |
Documents citing this one 357
Judgment 333
Act 15
| 1. | Magistrate’s Courts Act | 79 citations |
| 2. | Arms and Ammunition Act, 1964 | 52 citations |
| 3. | Acquisition of Property Act, 1961 | 20 citations |
| 4. | Prisons Act, 1964 | 20 citations |
| 5. | Stock Theft Act, 1982 | 19 citations |
| 6. | Crimes Act, 1889 | 10 citations |
| 7. | Public Order Act, 1963 | 9 citations |
| 8. | Books and Newspapers Act, No. 20 of 1963 | 3 citations |
| 9. | Inquests Act, 1954 | 3 citations |
| 10. | Criminal Liability of Intoxicated Persons Act, 1938 | 2 citations |