ABATHEMBU King Buyelekhaya Dalindyebo’s largely unsuccessful appeal might have played out quite differently had the government’s Traditional Courts Bill (TCB) not been defeated by a majority of provinces in 2013.
His arguments against imprisonment for a range of crimes from arson to assault and culpable homicide could have had more traction under the legal regime proposed in that bill and might, therefore, have more validity under the redrafted version expected back in parliament before the end of the year.
The Supreme Court of Appeal dismissed Dalindyebo’s argument that his actions were acceptable under customary law and upheld his 2009 conviction in the Eastern Cape High Court on charges of arson, kidnapping, defeating the ends of justice and assault.
The SCA set aside the culpable homicide conviction and sentenced Dalindyebo to 12 years imprisonment.
Dalindyebo’s conviction is significant as it highlights the harm that could result from recent government laws and policies on traditional leadership that seek to empower traditional leaders at the expense of rural people.
The TCB was rejected only after a long campaign by a broad coalition of largely rural and community based organisations. Had it passed, it would have supported Dalindyebo’s arguments that his abusive actions against his subjects were legal under customary law and would have made it much more difficult for him to have faced prosecution and been convicted.
Amongst the actions for which Dalinyebo was charged were:
● Setting fire to properties of three of his subjects in a move to evict them for “breaking community rules”;
● Ordering the brutal assault of three young men for housebreaking and rape. One of them died from the beating;
● Having the body delivered to the father with instructions to bury him and report that the young man had died of natural causes;
● Intimidating the complainants in the arson case into withdrawing the charge.
A number of specific provisions in the TCB aligned with Dalindyebo’s argument that his atrocious actions against his community were lawful “according to customary law”.
Clause 4 of the bill recognised traditional leaders as presiding officers of traditional courts in their area of jurisdiction; and clause 9 (3) (a) prohibited legal representation in traditional courts even in criminal matters.
This essentially meant traditional leaders, as presiding officers of traditional courts, were to make all the decisions in the courts. Where the bill referred to a “traditional court”, it was in fact, referring to a traditional leader.
This is one of the key indications that this bill was not created to develop democratic traditional courts, but to empower despots such as Dalindyebo.
Furthermore, while clause 10 (1) of the bill did prevent punishment for criminal offences that were inhumane, cruel or degrading, it put no such restriction on punishments in civil disputes.
This created a grey area in relation to punishment on civil disputes, including offences against custom.
One of the men whose property Dalindyebo torched was fined six cattle and his clan was also fined R50 per household. The father of the young man beaten to death by Dalindyebo supporters was fined 10 head of cattle for the “disgrace his son had brought to the king’s land”.
Under the TCB these penalties may have been lawful. Clause 10 (2) authorised traditional leaders in both civil and criminal disputes to order payment of fines in monitory form or livestock.
Under this provision people could also be ordered to perform services without remuneration for community benefit.
This would amount to forced labour, which is prohibited under the 1996 constitution.
Importantly the bill empowered traditional leaders to deprive people of any benefits that accrue from customary law or custom, such as land rights. It also empowered them to make “any order that they may deem appropriate”.
Dalindyebo was convicted of kidnapping after forcing a wife and six children of one of his subjects to accompany him to his place in order to force the husband and father to present himself. Clause 11 (1) of the TCB authorised traditional courts to order people who had failed to comply with court sanctions to appear before them. Additionally Clause 20 would have made failure to appear in a traditional court when ordered to so a criminal offence.
Regarding the charge of arson, Dalindyebo did not deny setting the houses on fire. He said he could not be convicted of arson as the property belonged to him. His defence was based on the structures being on land registered in his name and therefore belonging to him.
In the judgment the SCA clarified this by citing the restrictions in the title deed that in fact, the property did not belong to Dalindyebo. Instead, he holds it as hereditary monarch for the benefit of his community and he may not alienate the land without the approval of the state.
Dalindyebo defended his actions as being in the best interest of his people and said by using his brand of justice he was protecting them from outside influences and upholding customary law.
However, as Professor Digby Sqhelo Koyana said on behalf of the state, the king’s actions were contrary to customary law, which demands a king ensure the maintenance of law and order, protects the life and security of his people and acts compassionately with due regard to the dignity of his subjects.
More importantly, Dalindyebo’s conduct was simply criminal.
The mooted return of the TCB later this year should also be seen in the context of the Traditional and Khoisan Leadership Bill tabled in parliament in September. This bill has been criticised for effectively re-entrenching the colonial and apartheid tribal boundaries that coincide with the former Bantustans.
The bill will give governmental powers to traditional leaders and, if the TCB returns, possibly judicial powers, too.
The Communal Land Tenure Bill, expected to go before parliament any day, will facilitate the transfer of ownership of communal land to traditional leaders along the lines Dalindyebo tried unsuccessfully to argue was already the case.
His actions and the grounds for his appeal show that if these bills are not amended to fully secure rural communities’ rights, these communities may be at the receiving end of abuses by traditional leaders such as Dalindyebo.
This article first appeared in Daily Dispatch on 08 October 2015