Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
7 January 2010

Can the abaThembu secede from South Africa?

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.

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