An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Very few people – least of all anyone in government – seem to be taking seriously the claim by Votani Majola, lawyer for King Buyelekhaya Dalindyebo, that the AbaThembu tribe had seceded from South Africa. This is curious, given the fact that Dalindyebo was confirmed as the only King of the AbaThembu in 2008 by a Commission set up in terms of the Traditional Leadership and Governance Framework Act.
Dalindyebo’s actions might seem laughable, but he has quite an impressive family history and one would suspect the reason why the authorities are not making a big noise about this is that they do not want to inflame the passions of some of the Kings subjects. Dalindyebo is a descendent of Paramount Chief Sabata Dalindyebo who resisted efforts by Kaizer Matanzima to co-op him into supporting “independence” for the Transkei. Matanzima did everything in his power to depose Sabata as paramount chief.
Ironically Mantanzima succeeded only in 1980 when a Transkei court found Sabata guilty of violating and injuring the dignity of the state president. Sabata had told a gathering of more than 1 000 people at his Sithebe Great Place that he had refused an offer from Matanzima to become the first president of Transkei because homelands were “pigsties and dummy institutions”. Sabata fled the Transkei and ended up in Zambia, where he threw in his lot with the African National Congress and later died.
Recent events are therefore – to say the least – rather ironic. The media reported last week that Majola, the lawyer for the AbaThembu king, had served a “secession notice” on Parliament and quotes Majola as saying that the “AbaThembu Tribe have seceded from South Africa. The sooner the nation aligns with this reality and start preparing to form the State of Thembuland the better”. Majola said the nation was no longer part of South Africa and that the ANC-led government would have no say in the new independent state, which would be headed by Dalindyebo.
Dalindyebo was sentenced in the Mthatha High Court in December for crimes including culpable homicide, kidnapping, arson and assault with intent to do grievous bodily harm. He is obviously a rather eccentric character because he claimed R80 billion in compensation from the government for the indignity he suffered when he was sentenced to a term of 15 year imprisonment. Some analysts also claim that Dalindyebo is being persecuted because many of his subjects voted for the UDM in previous elections.
Obviously, the statements of the King’s legal representatives and the delivery of a secession note will not have any legal effect and Dalindyebo and all his subjects remain South African citizens. In the absence of specific unlawful acts by Dalindyebo or his subjects to undermine the authority of the South African state, it is thus understandable that the government is pretending this farce is not really happening.
But a few interesting legal questions do arise. The King is being paid almost a million rand a year by the South African government in accordance with the Remuneration of Public Office Bearers Act, which provides for the payment, amongst, others, of Kings and other traditional leaders. What will happen if the South African government stops paying him on the basis of his own claim to secession? I suspect the government could not stop payment as the secession is not legally valid and Dalindyebo thus remains the King – despite all the bluster by his legal representative.
But section 10 of the Traditional Leadership and Governance Framework Act does provide for the removal of a King, in which case he will lose the payment. This can happen where a King has been convicted for an offence and given a sentence of imprisonment for more than 12 months and the Royal family requests the President to remove the King. In such a case the next in line to the throne will be invested as the new King.
One wonders whether the present posturing does not have to do with the internal politics of the Royal family and whether the King is not trying to pre-empt any effort to remove him as King.
Lastly, a larger set of questions comes to mind: why is it that the South African tax payer is paying kings and traditional leaders such exorbitant amounts of money? What value do we get for our tax money from this system? What is it exactly, say, that King Goodwill Zwelethini does that warrants the payment of large amounts of public money to him to furnish a lavish lifestyle? Is the notion of Kings, kingdoms and traditional chiefs to be squared with a constitutional democracy at all or is it not profoundly undemocratic?
I am a Republican at heart and have always thought it was utterly ridiculous that Britain had a Queen who dressed up in funny hats, spoke in a constipated accent and travelled around her country opening factories while smiling benignly and waving to the crowds. Surely in a democracy one should not be considered better than anyone else merely because you were supposedly born to be a King or a Queen? So why do we have this same ridiculous notion in South Africa, given the fact that the traditional leadership system in our country have been thoroughly corrupted by colonialism?
The ANC used to be opposed to these anti-democratic leaders who are part of a system that was bastardised and exploited by the colonial masters and later by the apartheid government to ensure white control over the local population. But in recent years the ANC has decided to embrace the traditional leaders and has forgotten its own critique of the system which is not really in line with the achievement of the National Democratic Revolution.
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