The basic rule of the common law is that damages in civil actions are awarded as compensation for injury and not as punishment for wrongdoing. The object is reparation; and the applicable principle is restitutio in integrum. Thus, the ultimate aim of the award is to restore the plaintiff, as far as money can do, to the position he would have been if the wrong had not been committed. In tort actions where the plaintiff's injury can be measured by some material loss, this principle will apply without much difficulty; however, in cases where the damages are “at large”—in that it involves a substantial subjective element, the viability of the principle of restitutio in integrum becomes doubtful. Moreover, the award of damages may sometimes look to the punishment of the defendant, instead of compensating the plaintiff; such damages are called “exemplary” damages.

The Legal Resources Centre (LRC) is a non-profit-making law centre. Its aims are to encourage belief in the value of law as an instrument of justice and to give practical effect to this goal by providing legal and educational services in the public interest. It is controlled and funded by the Legal Resources Trust (LRT) which is a South African charitable and educational trust registered under the Fundraising Act. It is supported by development agencies, corporations, charitable foundations and concerned individuals. The trustees include judges, senior advocates and attorneys. For the fiscal year April 1990 to March 1991 the trustees of the LRT approved a budget of R8.5 million for the work of the LRC's offices.

The LRC was established after nation-wide consultations on the desirability of a legal resources centre produced positive feedback from a wide range of constituencies, and it became operational at the beginning of 1979. It seeks to fulfil the following purposes:

(a) To provide legal representation for litigants in any court of law, tribunal or body before whom a party may be represented by counsel or attorney.

(b) To conduct a programme in legal education and conduct seminars of educational value.

(c) To engage in research in legal areas including all matters relevant to the effective administration of justice.

(d) To publish the results of any research undertaken by it, and any material relevant to its objects.

This comment sets out to re-examine the problems associated with circumstantial evidence in instances of murder where there is no trace of a body or corpus delicti. This curiosity has been rekindled by the recent decision of Rooney, Ag. C. J., of the High Court of Swaziland in the case of King v. John Spokes Lawrence Madeleke. Besides the bizarre events which characterize its details, the case has brought to the fore once again the need to re-examine the principles underlying circumstantial evidence. Of particular interest is the basis of relying on such evidence as well as the weight to be attached to it particularly if it is the only basis on which a conviction on charge of murder is sustained. It is also contended that the decision in the Madeleke case, the first of its kind in Swaziland judicial history, has implications which go beyond its jurisdictional boundaries. Swaziland's juridical ties with Roman-Dutch law make the arguments interesting, especially for those concerned with comparative jurisprudence in the neighbouring states including South Africa.

It is first important to review briefly the relevant facts. In Madeleke the accused was charged with and subsequently convicted of the murder of his wife, Sheila, on the night following 17 January, 1991. The case for the prosecution was that Sheila was dead, murdered by her husband. To establish this proposition the Crown relied entirely upon circumstantial evidence. The most significant was that given by Thulie, the domestic servant of the accused.

Zimbabwe has a population of almost ten million people of which approximately 80 per cent, are poor and live in the rural areas. The majority of the rural population lack formal education and are ignorant of their rights. They have no access to legal services as most of the country's lawyers are based in the urban areas. Even if legal practitioners were accessible to them, they would not be able to pay for their services. Thus, they are liable to exploitation.

Since independence, the changes in Zimbabwe law have been rapid, farreaching and progressive. In the absence of any co-ordinated mass education campaign on their meaning and implications, or consultation with those to be affected before enactment, there has been a great deal of adverse reaction to new legislation, especially where it has safeguarded or equalised the rights of women. For the community, the effect has been chaos. Traditional structures, known and well-understood means of communication, and culturally entrenched roles have been transformed and replaced by a new order.

The Legal Resources Foundation (LRF), an autonomous charitable and educational Trust, was established to meet the need to improve the accessibility of legal and information services to all sections of the population. It was formed following a regional workshop on legal aid which was held at the University of Zimbabwe in February 1984 and against the background of there being just 400 lawyers in Zimbabwe at the time, all of whom were urban based.

The first Commonwealth Africa Human Rights Conference (CAHRC) took place in Harare, Zimbabwe between 11–14 October 1991 and immediately preceded the Commonwealth Heads of Government Meeting (CHOGM). Organized by three local non-governmental organizations, it brought together participants from 14 Commonwealth African nations together with South Africa. NGOs represented included the African Centre for Democracy and Human Rights Studies (The Gambia); Kituo Cha Sheria (Kenya); the Civil Liberties Organization (Nigeria); the Legal Assistance Centre (Namibia); the Legal Resources Centre (South Africa); Uganda Human Rights Activists; and Women in Law and Development in Africa (Mauritius and Tanzania). The conference was informed that one Nigerian participant, Femi Falana, the President of the National Association of Democratic Lawyers, was prevented by his government from leaving Nigeria. Participants unanimously condemned this action and a communication to this effect was sent to the Nigerian Head of State who was attending CHOGM.

In Botswana, as in several other African countries with a similar historical experience, a dual or plural land tenure system was carried over from the colonial era. The bulk of the land falls within the category of “tribal land”. It is predominantly held and occupied by indigenous peoples under customary notions of land tenure. The State also holds as “State land” a fairly significant proportion which fell under the category of “Crown lands” during the colonial era. A tiny proportion now falls within the category of “freehold land”. This is predominantly held and occupied in conformity with common law notions and conceptions imported into the country with colonial rule. To some extent both State land and freehold land are held under or governed by “received law”, in contradistinction to tribal land which is largely held under customary law.

In 1968, barely two years after independence, the Botswana parliament enacted legislation which attempted to reform customary land tenure by replacing existing customary or tribal institutions of land control and administration with statutory land boards. These started operating in 1970, and it soon became apparent from early assessments that even this limited and cautious programme of reform would not escape some of the problems associated with land transformation exercises elsewhere in Africa.

The long-awaited Adoption Act was passed in 1989. The object of the Act as indicated in the objects and reasons of the Bill is to make provision for the adoption of juveniles by persons who are fit and willing to do so. Informal adoptions existed in Sierra Leone in a variety of situations but for the past decade there has been a growing realization that these arrangements needed a legal stamp in order to provide proper security for the child and for the adopters who often feared that the natural parent might claim possession of the child after a number of years of care by the adopters. The absence of any provision for legal adoption was a cause for concern for couples who wished to provide a permanent home for children who were not their natural children.

In the past lawyers have attempted to fill this vacuum by ensuring that the natural parent or parents executed a contract with supporting affidavits, where requisite, disclaiming all rights and liabilities towards the child. Such contracts were not strictly legal and lawyers therefore attempted to include a clause (which did not have legal validity) whereby the natural parent could resume his or her rights over the child only if he or she compensated the adopters for all expenses incurred during the child's upbringing. The size of the expenditure involved was often enough to discourage the natural parent's efforts to gain custody over the child.

Before President F. W. de Klerk's epoch-making address on 2 February, 1990, anyone who predicted that within less than two years virtually all the major political parties and groupings in South Africa would be sitting around a conference table negotiating a new constitution, would have been dismissed as naive at best. Even more amazing is the substantial degree of consensus which has been achieved in what is a relatively short time, given the long history of conflict which preceded the dawning of the “new” South Africa.

The focus of the negotiations is the Convention for a Democratic South Africa (commonly referred to by the acronym Codesa). A wide spectrum of political opinion is represented here (a total of 19 different organizations at the last count), although organizations and parties on both the extreme right, and the extreme left, have refused to participate. While the government, the National Party and the African National Congress (ANC) may be seen as the main players, the role played by even the most minor participants cannot be discounted, because of the emphasis that is placed on consensus by most of the parties involved.

In a democratic nation, local government is the government of the people, by the people and for the people at the grassroots levels. That is, the government nearest or closest to the people. It is at the level of local government that community action in respect of community development programmes is most effective; it is also the level where democratic processes and decision-making by consensus are traditionally entrenched; where rivalries and tensions are reduced to a minimum; where local resources and patriotism are easily called to the service of the community; and, very importantly, where the people are normally confident of effective control of their own government.

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

A substantial part of the rules governing land tenure and its conveyance has had the prevention of fraud and double-dealing as its object. Rapacious vendors have perfected the skill of selling the same piece of land successively to more than one purchaser. Trespassers have brazenly taken possession of land in which they have no vestige of interest, challenging the owner and asserting limited or absolute rights to it. Some of these frauds are perpetrated because land transactions are not publicised. It is no surprise therefore that the elimination of secrecy in such dealings was appreciated early in man's history.

The oldest recorded land transaction, which took place almost 4,000 years ago in 1881 BCE in the Middle East, was concluded in the presence of witnesses, “before the eyes of the sons of Heth among all those entering the gate of his city”. Witnesses give the transaction publicity and they are also people who could testify to it. But the testimony, useful as it is, has its shortcomings and cannot always be relied on to determine either whether the transaction took place or the nature of the rights and obligations it conferred on the parties. With the passing of time the frail memory of the witnesses fails; on their death any evidence given becomes hearsay with the attendant possibility that subsequent persons may alter what they were told.