Quote of the week

The transformation of transgender women into goddesses for an annual Hindu festival takes place in an atmosphere of reverent, somber concentration. Laugh lines vanish, replaced by an impassive mask. Skin becomes stone. As they prepared to perform in the Mayana Kollai festival in a fishing village in the southern Indian state of Tamil Nadu, some of the dancers slipped into trances so deep it appeared they might have fainted.

CANDACE FEIT
New York Times
5 October 2015

Why King Dalindyebo is not above the law

Last week the Supreme Court of Appeal (SCA) confirmed a High Court judgment that King Buyelekhaya Dalindyebo is guilty of arson, kidnapping and defeating the ends of justice. The court did set aside the High Court conviction of Dalindyebo for culpable homicide and reduced his effective sentence from 15 to 12 years imprisonment. The king has said that he will appeal to the Constitutional Court. But this appeal is not likely to succeed. Here is why.

Dalindyebo

The role of traditional leaders in a post-apartheid South Africa was one of the thorniest issues to be decided during the constitutional negotiations. At the time there was some disagreement between members of the African National Congress (ANC) about the extent to which the status and role of traditional leaders had to be accommodated in a democratic dispensation.

It is perhaps for this reason that the provisions in the Constitution dealing with the recognition of traditional leaders are weak and somewhat vague. Section 211 of the Constitution states that:

The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution.

The section further states that it is permissible (but not required) to allow a traditional authority that observes a system of customary law to function. The courts are also enjoined to apply such customary law when it is applicable “subject to the Constitution and any legislation that specifically deals with customary law”.

This means that traditional leaders – like all other South Africans – are subject to the Constitution and the law. Where a community observes customary law and the customary law is in breach of any section of the Constitution the customary law must be developed (either by the community or by the courts) to ensure that it conforms to the other provisions in the Constitution.

In this sense customary law is no different from the common law – which in effect used to be the customary law of the colonisers. The Constitutional Court has also confirmed that customary law has equal status with common law, but – like the common law – customary law must comply with the other provisions in the Constitution.

Section 1 of the Constitution affirms that South Africa is a sovereign, democratic, state founded, amongst others, on the rule of law and on a multi-party system of democratic government.

A basic tenet of the rule of law is that everyone is subject to the same law and that no one is above the law because of his or her position or status. This necessarily means that traditional leaders, including kings, are subject to the Constitution and the law (including the criminal law) in exactly the same manner than any other person.

It also means that no legislative provision or any customary rule can grant powers to a traditional leader that would in any way limit the democratic rights of any citizens. The Constitution thus provides very little scope for the recognition of the institution, status and role of traditional leadership, as any such recognition will have to be aligned with the democratic principles that are part of the founding values in the Constitution.

It is for this reason that the SCA rejected the argument advanced on behalf of the king that he had acted in the best interest of his people when he committed his crimes and that he was merely seeking to protect them from outside influences and upholding customary law. The SCA rightly calls this an “astonishing submission” pointing out that contrary to the kings claim the living customary law demanded that a king acts “compassionately with due regard to the dignity of his subjects”.

But even if there was a customary law rule that allowed the king to act as prosecutor and as judge and to punish his “subjects”, such a rule would be unconstitutional as it would usurp the power of the courts and breach the separation of powers doctrine.

Be that as it may, the SCA confirmed that our constitutional order does not tolerate the kind of criminal conduct engaged in by the king and continued:

The lesson that cannot be emphasised enough is that persons in positions of authority such as the [king] are obliged to act within the limits imposed by the law and that no one is above the law. The Constitution guarantees equal treatment under the law. The [king] behaved shamefully and abused his position as king.

This he did by acting in a “tyrannical and despotic” manner, setting fire to the houses, crops and livestock of subsistence farmers living within his jurisdiction, kidnapping the wife and children of a subject he considered to be a dissident in order to bend the latter to his will, and then delivered the body of a subject, killed by his supporters, to a bereaved father, ordering the latter not to even consider reporting the truth concerning the circumstances of his death to any authority and then fining the father of the deceased ten head of cattle because, so the King alleged, the son had brought shame to the kingdom.

It is unthinkable that the Constitutional Court will agree with the king that he was entitled by customary law to treat individuals in this manner because of his position as king. To do so would be to endorse the proposition advanced by the king that, in terms of customary law rules, he is above the law. Accepting the proposition would fly in the face of the most important promises of the Constitution – that all are equal before the law and that the inherent dignity of everyone should count equally in our democracy.

A more plausible argument advanced by the king is that he should be acquitted because his trial was unfair. This the king contended because his trial had commenced approximately 8 years after the events on which his convictions were based, breaching his constitutional right to a speedy trial in terms of section 35(3) of the Constitution.

The SCA rejected this argument. The SCA pointed out that the Constitutional Court had previously stated that a speedy trial was important because an accused person’s right to be presumed innocent by the court (but of course not by the public) could be jeopardised. The Constitutional Court explained however that one should look at all the facts to determine whether the trial occurred within a reasonable time. To determine whether the fair trial rights of an accused had been affected one must apply:

a ‘balancing test’ in which the conduct of both the prosecution and the accused are weighed and the following considerations examined: the length of the delay; the reason the Government assigns to justify the delay; the accused’s assertion of his right to a speedy trial; and prejudice to the accused.

In applying this test our courts have also recognised that the administration of our criminal justice system, including law enforcement and correctional agencies, were under severe stress and that some delays in the completion of trials were not uncommon. The SCA further pointed out that in this case “[m]uch, if not all of” the delay in the trial was caused by king:

being obstructive and employing dubious means to thwart the administration of justice, including the intimidation of complainants. Having done all he could to avoid facing prosecution, the [king] attempted to turn his vice into a virtue.

The king’s “dilatory and obstructive behaviour continued after the commencement of his trial”. He employed successive and multiple legal representatives which further delayed proceedings. The SCA thus concluded that it was clear that the king:

had no interest in his trial being finalised. On the contrary, from the onset he attempted to avoid being prosecuted and thereafter focused on obstructing the finalisation of his trial. Insofar as his liberty is concerned, except for the briefest period of incarceration soon after the occurrence of the events in question, he has had the benefit of being freed on bail.

There was also no discernible prejudice to the king regarding his fair trial rights. Witnesses were all extensively cross-examined and none of them appeared to have forgotten any of the events testified about. Moreover, even though threatening to call witnesses who, on his own and the State’s version of events, were crucial to his defence, for example his sister, he did not do so. There was therefore no unfair trial because of the delays.

Although there is, as always, a possibility that the Constitutional Court could find that the right to a speedy trial had been infringed, this seems unlikely. This is partly because our courts are extremely reluctant to reward criminal defendants who abuse the court process to delay their trial – something the king clearly did.

The SCA also rejected the argument that the king’s right to a fair trial was infringed because he was incompetently represented by his lawyers. The king employed no fewer than 11 legal representatives (having fired or caused the withdrawal of subsequent legal representatives). As the SCA noted the king is “no shrinking violet” and was very much in charge of his defence. “He was not averse to dispensing with the services of a legal representative when he was unhappy with the manner in which his case was being conducted and on occasion for no apparent reason.” This ground of appeal is therefore also unlikely to succeed.

If the Constitutional Court rejects the king’s appeal as I suspect it would, the king will have to go to jail. It is not permissible for another chief to serve the jail term on behalf of the king – just as it is not permissible for one student to write another student’s exam.

If the king is sent to jail it would provide some consolation for the various victims of his crimes. It would also re-affirm the important constitutional principle that everyone – regardless of status – should be equal under the law and that no person is above the law.

This principle is not strictly enforced in all democracies (in some democracies, for example, a sitting president is immune from prosecution for as long as he or she is in office). But the drafters of our Constitution decided to have this principle strictly enforced to try and ensure that the lawlessness that occurred during apartheid is never repeated. After all, ours is a “never again” Constitution – something King Dalindyebo and his supporters have failed to grasp fully.

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