Can those sad folks living in the Afrikaner quasi-homeland of Orania (where they even have a monument to the Koeksister!) secede from South Africa if they decide they do not like to be governed by the ANC government anymore and would rather do Volkspele and play Jukskei (a game so tedious that it makes bowls look as exciting as Formula 1 racing) in their own country with their own Constitution? For that matter, can any other group living within the borders of South Africa who disagree with the policies of the ANC government decide to break away and form their own country?
I ask, because I see the Daily Dispatch is reporting that the AbaThembu nation may or may not want to secede from South Africa, pending a discussion by the nation. After a meeting held by traditional leaders close to King Buyelekhaya Dalindyebo on Tuesday it was apparently decided not to secede – yet.
Dalindyebo last year was convicted of crimes including, arson, assault, kidnapping and defeating the ends of justice. He was sentenced to an effective 15 years in jail by the Mthatha High Court, which later granted him leave to appeal against both conviction and sentence but he really does not believe that he is subject to the Rule of Law and is rather cross that the court had the cheek to find him guilty and brand him as a criminal merely for burning down a few houses, torturing a few people and causing the death of a young man.
Well, both the folks in Orania and King Dalindyebo and his cronies will not have much luck if they wish to secede from South Africa as the Constitution does not allow for it. Section 1 of the Constitution establishes South Africa as one, sovereign, democratic state, while section 3 states that there will be a common South African citizenship and that national legislation must regulate the acquisition and loss of citizenship.
As a sop to right-wing Afrikaners the Constitution also includes a provision on self-determination but this will be of little help to the folks of Orania or to the King and his cronies. Section 235 states:
The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.
This section therefore provides for some form of self-determination, but only within the existing borders of South Africa and only as provided for by national legislation. Unless Parliament passes a law to provide some form of self-rule for the folks of Orania or for the abaThembu, they have no legal way of breaking away from South Africa.
This is in line with international law which generally endorses the view that the right to secede was meant for peoples under a colonial rule or foreign occupation. Otherwise, so long as a people has the meaningful exercise of its right to self-determination within an existing nation state, there is no right to secede unilaterally from the nation in terms of international law.
In any case, its a good thing that King Dalindyebo has decided not to take any steps yet to try and secede from South Africa as he might well get into even more trouble if he does so. This is because unlawful action (that is, action outside the mechanisms provided for in the Constitution) taken by a person owing allegiance to a state with the intent to threaten or endanger the security of the state or to change the constitutional structure of the state would constitute the crime of treason.
The King, his advisors and his lawyer should therefore be careful not to do anything that could be perceived to undermine the territorial integrity of the South African state. They would be free to petition the President or launch a campaign to try and convince the legislature to grant them some form of self-determination as such actions would be lawful, but if they act in a manner not provided for by the Constitution in a purported attempt to secede from South Africa they would be guilty of a very serious crime of treason.
Of course, the King is already guilty of another very serious crime, namely making a complete fool of himself. Maybe all the stress will get to him and he could then be released on medical parole because he was in the last stages of a terminal illness to die a dignified death. After all, that story seemed to have worked for Schabir Shaik.
I doubt they will succeed in their efforts.
King Zwakala says:
January 7, 2010 at 9:35 am
I doubt they will succeed in their efforts.
————————————————————————————————————
Hmmm.
That will be most unfortunate, according to the “Justice For King Dalindyebo Campaign” issued by Votani Majola of Majola Attorneys
Convener pf King Dalindyebo Justice task Team.
“We shall under no circumstances accept a situation whereby AbaThembu Tribe are extinguished from the surface of this earth just like Dinosaurs that have become history. Should we do that future generations will judge us very harshly as people who gave up the struggle for existence that was fought by our greatest leaders as early as during the years 1500. Our greatest ancestor the Honourable King Thembu being one of them.”
I am not sure that the dinosaur analogy is correct – that if scientists are to be believed was as a result of a meteorite. A better example would probably have been the Dodo.
As for the future generations after the “extinguishing” – eish!
@ Maggs
Using your logic, the Dodo example would not be suitable either since it was rendered extinct (extinguished) by excessive hunting by the colonialists in the early Americas.
Sine says:
January 7, 2010 at 10:09 am
Is it not inferred that “the Conspirators”, aka the ANC, are intent on “extinguishing”?
Maybe not – the Dodo was probably extinguished by irresponsible hunting rather than deliberate intent as is suggested as the agenda of the Conspirators.
I need another example. How about smallpox?
@ Maggs
Now I agree (http://www.nature.com/nm/journal/v7/n1/full/nm0101_15b.html). Context indicates that the actions of the Conspirators would result in the complete annihilation, eradication, termination or elimination of the AbaThembu Tribe. It presupposes a complete removal from the face of the Earth and the reduction into history the relevant subjects.
The “withdrawal notice” begs the following simple but difficult major question, with its offspring, of course;
1. Who comprises AbaThembu Tribe?
@Maggs
Yes, without my blessings I really doubt they will make it, as I believe through the revelation of ancestors that I am the real King, the King of kings. But on a more serious level, to secede from a country is indeed a very unusual circumstance- I am sure everybody is interested to see how this matter will unfold. If the government can be as kind as those guys who post at FJZ, then the king stands a chance of making it. Contrary to the general views, those guys who post there, at least the one I have met, are very kind and warm hearted. This confirms the saying that one who expresses one’s view is more reliable than the reticent one.
The king should probably heed Professor’s advice – “The King, his advisors and his lawyer should therefore be careful not to do anything that could be perceived to undermine the territorial integrity of the South African state.”
@ King Zwakala et Prof
I seriously doubt that a charge of treason could secure a conviction. The problem is the lack of a VIOLENT attempt to overthrow the State;
“On all the evidence presented to the Court and on our findings of fact, it is impossible for this Court to come to the conclusion that the A.N.C. had acquired or adopted a policy to overthrow the State by violence, that is in the sense that the masses had to be prepared or conditioned to commit direct acts of violence against the State. . . . While the prosecution has succeeded in showing that the programme of action contemplated the use of illegal methods (e.g. strikes, boycotts, etc.,) . . .for the achievement of a fundamentally different State from the present, it has failed to show that the A.N.C, as a matter of policy, intended to achieve this new State by violent means”.
http://www.disa.ukzn.ac.za:8080/DC/asjul61.4/asjul61.4.pdf
Sine says:
January 7, 2010 at 10:49 am
“1. Who comprises AbaThembu Tribe?”
Now you sound just like Minister Manuel – “Who is the Dalai Lama?” (
couldn’t let that one pass).
But seriously that is a very complex issue.
One way to definitively determine that, is to let the “extinguishing” proceed to completion. Once it has been established exactly who has been extinguished your question will be answered.
@ King Zwakala.
I know you’re faking it. Brother Leader is the anointed Prince of Princes, King of Kings, the Ruler of All of Africa.
What’s FJZ?
@ Maggs
LOL! Great post…
I disagree with letting AbaThembu Tribe be extinguished to answer the question. If we let that happen, it will answer the following question instead;
Who comprised AbaThembu?
Note the tense employed in the sentence construction…
@ Maggs
FJZ = Friends of Jacob Zuma
Come to think of it, is it not supposed to be FPJZ now, the ‘P’ being for President?
Sine says:
January 7, 2010 at 11:13 am
Ok – you win on “Who comprises AbaThembu Tribe?”, so here goes.
I will start with two names.
1. King Buyelekhaya Dalindyebo
2. Votani Majola (subject to correction, maybe he’s just the lawyer and “convenor”)
You add the remaining 9 999 998.
@ Sne – thanks for that.
I thought that the FJZ was “extinguished” now that the woes are no longer.
And the friends – one is terminally ill, one is gone underground, one is gone next door, one is a soon to be General, one General is playing music for us, one is deployed as a non General to MoD, one still retained office, one who should have been fired got promoted, one who should have been promoted got fired ….
Are they still collecting money?
@ Maggs
LOL! That’s a definitely unfair (and also unconstitutional) task you’ve given me.
The first problem is that AbaThembu are part of Xhosa speaking people of RSA. The other parts/divisions I can recall right now are AmaMfengu, AmaBhaca?, etc. Though we may speak (the divisions) a slightly different Xhosa to each other, depending on the area from which we come, we are all Xhosas and we have been marrying each other since the first Xhosa king, King Xhosa himself, and the others after him like Kings Mlangeni, Tshiwo, Phalo, Hintsa, Gcaleka, Rharhabe, etc. This would cause a disaster if we were to determine who is umThembu. A quick example is in my family;
I consider us AbaThembu. My mom’s elder sister got married to umMfengu and therefore my relevant cousins are AmaMfengu since they have followed the paternal surname. Would they be excluded by virtue of the above?
Ok – I will help you out.
My list is now :
1. The King
2. The lawyer
3. Mama Sine
4. Papa Sine
5. Sine
Hey that’s not bad for a mid day brief.
BTW have you joined the “Justice For King Dalindyebo Campaign”?
p.s. Now I understand better why you declined my suggestion that we allow the extinguishing of the AbaThembu Tribe as an objective determination. Another case of selfish personal interests over riding scientific advancement!
And all of this just because the judge, who convicted and sentenced the King, did not, when he entered the court room at both occasions, salute the King with: “Ah! Zwelibanzi!” … Shit!!
@ Maggs
LOL! Not exactly. The reason why I declined was cause I am contemplating joining the “Justice for King Dalindyebo Campaign”. However, it is still a contemplation the execution of which will depend on whether the prospects of success are great. I do not want to “join the struggle to be poor”.
Oh, I almost forgot. I respectfully submit that the King has got it wrong; As evidenced by my submission above, AbaThembu are not a tribe but a part of a tribe called AmaXhosa. This means that “King” Dalindyebo is but a chief not a King since he’s in control of a faction of Xhosas not the Xhosas as a whole. The areas that he claims are his, assuming his claims are true, are actually areas belonging to Xhosas as a tribe not AbaThembu as a part of the Xhosa Tribe. His claim basically has made him to shrink to a chief who’s subject and subservient to someone higher, the King. This could mean that his King has a right and indeed a duty to call him to the Royal Kraal and to give him quite a few latches fro being naughty, just like he did to the young men who were taken to him by the mob.
@ Mouse
I am disappointed in you for not seeing the bigger picture in all of this. The bigger picture is to cause enough trouble for everyone to take their eyes off the real problem of the chief; the convictions. Remember this strategy was used effectively recently by the Pres Zuma faction to solve his legal troubles – ably branded as ‘political’ by proponents – and to take the eyes of the opposition parties off the ball during the election period with Mayor Zille campaigning to ‘stop Zuma’ instead of stopping the ANC and of focusing on her own party. We both know what the results were; a win on both fronts for Pres Zuma. The same strategy is being employed here again.
lol….
but there is a point tho, there is no recognized process for forming your own country, and it comes essentially down to power.
They both have a population for a start up country. In otherwords they have citizens
The only trick is to gain sympathy from the international community and the best card for this is shouting oppression.
Hey Sne,
“I do not want to join the struggle to be poor’”.
Now you sound just like the lawyer/convenor.
Bad news, mfo – like “ether and benzine” the campaign has evaporated :
“Convicted abaThembu king Buyelekhaya Dalindyebo has suspended his plans to declare independence and put more than 65 percent of South Africa under tribal rule, after receiving a recent letter from President Jacob Zuma”.
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20100107122235506C703122
@ Maggs
I am utterly disappointed that Chief Buyelekhaya Dalindyebo has so suspended his plans (I repeat, chief, not king). He has effectively put a lid on my accumulation of wealth plans. I am furious…
Hi Prof and fellow bloggers, compliments of the new season. Prof please can you please compliment Hlophe JP for his landmark ruling on the archaic and unconstitutional detention for suspected debt!Can he now be considered for a post in the Constitutional Court next year?
@ Mdu
Mdu is wrong.
Hlophe JP does not need to prove himself to white liberals with any new judgment.
He has long since proven himself to be the finest judicial mind in the known universe.
I renew my demand that he be made Chief Justice of the International Court of Justice.
Thanks.
@ Pierre
What is the source for your definition of the crime of treason?
So far as I am aware, treason does not encompass secession. It is rather about (a) collaboration with a foreign enemy or (b) attempting to overthrow the state itself.
Michael, I borrowed the definition from Burchell’s Criminal Law textbook. Surely UNLAWFUl ACTS aimed at secession would constitute an attempt to change the Constitutional structures of the Republic as South Africa as we know it will then seas to be one unified sovereign country as stated in section 1 of the Constitution? LAWFUL acts (protests, marches, petitions etc) aimed at achieving the same goal will of course not constitute a crime. I suspect the CC, if asked, will define the crime of treason narrowly as it can easily be used by rulers to get at political opponents if the definition is too wide – as the apartheid state tried to do on many occasions.
Does the area claimed by King Dalindyebo include Orania? If so the CC can rule on whether a ceceded area can cecede from a previously ceceded area from a former colony that ceceded from the colonial rulers who overthew the previous colonial rulers, and if high treason is still possible after all the cecesions.
In the meantime the King can use this, and perhaps go for “the persuit of happiness. After all, who can be happy in jail?:
“Governments derive their just powers from the consent of the governed… Whenever government becomes destructive to life, liberty, or property [i.e., the pursuit of happiness], it is the right of the people to alter or to abolish it… It is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”
— American Declaration of Independence —
Chris says:
January 8, 2010 at 7:05 am
“Governments derive their just powers from the consent of the governed… Whenever government becomes destructive to life, liberty, or property [i.e., the pursuit of happiness], it is the right of the people to alter or to abolish it… It is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”
— American Declaration of Independence —
Makes me smile everytime I read that
Pierre De Vos says:
January 8, 2010 at 6:13 am
There has never been a case of secession in an advanced, capitalist, democratic country.
I doubt the South African constitution contains provisions for the departure of a province or territory. Just becuase it doesnt mention it doesnt mean its unconstituional.
The real utility of a constitution is in adapting to new situations. If the constitution doesn’t fit a new situation, it can be amended, as things change.
Your reasoning on treason can be replaced with the legal difinition of revolution
Historically, the world has welcomed secessions that worked and condemned failed ones.
And International law has nothing conclusive on the right to secede unilaterly
The success of a secession comes down to two tests: recognition of the new regime by other countries, and the regime’s ability to exert legal control throughout its territory.
Quick question:
Given
that the ANC has, since 1997 at least, paid lip service only to the idea of a modus vivendi reached between the different races in this country (agreed on in 1994 and 1996) and lately has not even bothered to do that,
and, given,
the increasing tendency in the ANC to laugh off the Constitution and the rule of law which is the legal framework of the modus vivendi
I would like guidelines as to the circumstances under which one can lawfully resile from the pact?
This is the most amusing post I have ever read and enjoyed. I could not stop laughing tearfully from PdV’s concluding paragraph down to the interesting exchanges (of Jan, 7 2010) between Sine and Maggs, spiced by King Zwakala himself. One could be forgiven to mistaken these posts as records of the proceedings of the “So You Think You Are Funny” programme searching for future talented comedians. Sine and Maggs, I am tempted to conclude you are both wasting your time and talents in whatever you are doing now. You would do better as full-time `David Kaus’ than judicial officers in chambers of courts. PdV would do better as a part-timer in this regards.
Maggs, you deserve and Oscar for this one January 7, 2010 at 12:06 pm
My list is now :
1. The King
2. The lawyer
3. Mama Sine
4. Papa Sine
5. Sine
I really enjoyed your creative amusing skills.
On a serious note, I agree with Sine in his post of January 7, 2010 at 12:40 pm. King Dalinyembo and his lawyers are fully aware that this is not a winnable case. Their primary purpose is therefore to (a) shift the public’s attention to his case and his stupid actions that earned him conviction and jail term sentence and (b) cause confusion by, inter alia, dragging Mandela and the government into the picture; through which strategy he is (c) testing waters for a possibility of the (impossible) miraculous and unprecedented abortion of the prosecution, conviction and effecting of its just sentence – which is not winnable even on appeal.
Good post as usual PdV.
Pierre, yes, I do not think the Confederates who tried to secede from the US were charged with “treason.” (But I may be wrong.)
As for Scottish secessionists (led by Mel Gibson), I think they may have been convicted of treason, for acts against the sovereign.
I fail to understand why King of Thembus will appear as he is above the law. Why there will be a compaign for him. The fact that one is king does not mean he must act in such way he did.He must bear in mind that it is alleged that an innocent young children died because of his actions whether his actions were direct or indirect.
The best way for him is to await his appeal and if he fails it he may appeal again until he is satisfied.Further advice for him is to try to compensate the victims or he may take from his budget to compensate the victims, it is one of the best indication to show a remorse of his wrong actions.
Was your introductory paragraph really necessary to be so insulting to the Afrikaners of Orania and Afrikaners in general?
I personally will not fit in there because I am too lazy to work as hard as they do and ideologically I differ on many issues.
The fact is that they ask the authorities for very little and you know what? The school which they built and maintain is far superior to most schools in our country!
Volkspele, jukskei and koeksisters are part of the Afrikaner heritage and culture and Prof. Vos if you cannot identify with it keep your hands off.
@Pierre
Surely secession can not be prevented using the South African constitution as secession is the very act of trying to escape South Africa and its constitution.
If a large enough majority of people in a specific geographic location wish to seceed it should be legal under international guidlines on self determination
[...] } The apparent secession of the abaThembu nation from South Africa after an announcement by the tribal King Buyelekhaya Dalindyebo presents South [...]
Useless and petty comments on Orania, the Juskei, etc. I suppose you are guilt-ridden and wish to establish you new South African credentials. In any case, to a foreigner, this is simply unbearable chest beating.
The rest of interest.
“Last week Majola revealed that the new state, which he claimed consisted of six South African provinces , would have Dalindyebo as head of state while Majola himself, as emperor, would head the government. This, he said, was enshrined in their constitution, which would also be released on April 25.
“The six provinces are the Eastern Cape, Western Cape, Northern Cape, Free State, KwaZulu-Natal and Gauteng.”
“Majola, who now calls himself Dabulamanzi Emperor Thembu II , said the king’s delegation consisted of himself and six members of the interim Cabinet of the new state.”
http://www.dispatch.co.za/article.aspx?id=393938
Sorry Sne, but you could have been emperor.
You snooze, you lose!
Great job once again! I am looking forward for your next post!
@ Michal Ferentz
“Great job once again! I am looking forward for your next post!”
Maggs, I am not sure, but I think this note of appreciation is addressed to JR. What do you say?
Mikhail Dworkin Fassbinder says:
June 8, 2011 at 12:51 pm
Dworky,
Cud be.
Is it possible that JR is sending drugs (or vitamins) by post to Ferentz?