The king’s sentence will serve as a reminder to treat people humanely, writes
It is uncommon for a presiding king to be committed to a correctional management centre to serve a term as a convicted and sentenced offender. I sympathise with the Thembu kingdom and her people, including the victims of the king’s crimes. I anticipated that the incarceration of a sitting king would evoke mixed emotions.
The history of the intersection between our Constitution and African traditional (black) South African customs has not really been drummed into us in a manner that lets us comprehend that, when we drafted our Constitution, we also consciously focused on correcting some of our traditional African customs.
Some of these customs had in any case long fallen away in years gone by, particularly in rural villages where fundamental human rights had been less respected.
It is regrettable, in my humble view, for some of our opinion makers to posit views that indicate that the incarceration of King Buyelekhaya Dalindyebo constitutes a constitutional crisis for the country.
Dalindyebo’s trial ran its course. Some statuses, whether gained through traditional kingship or through attainment at university, remain inseparable from the people who hold them – until they are dethroned, in the case of kings, or, as is the case in certain professions, they are disbarred from the roll for gross malpractice.
A case in point that is still etched in our memories is that of Dr Wouter Basson, dubbed “Dr Death” for his evil deeds during the dark days of apartheid. He argued, during his disciplinary hearing instituted by the medical council, that he executed his orders as a soldier under command, and not as a medical doctor. The disciplinary hearing rejected his interpretation and found him guilty of gross human rights violations and misconduct.
Dalindyebo was convicted and sentenced as a king – not as an ordinary person, as some analysts contend.
However, it would be improper to imply that the king is not subject to the rule of law. The process leading up to and the adoption of the Constitution of the Republic of South Africa, Act 108 of 1996, was a collective effort of all South Africans, and traditional leaders were part of it.
Contextually, our injustices of the past included some of the African traditional customs, such as ukuthwala, which forces many girls to leave school and become wives at a tender age, against their democratic right of choosing who to marry when they attain the age of majority.
African traditional leaders were included in the process in section 39(3) of our Constitution that “the Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by … customary law … to the extent that they are consistent with the Bill”.
Inherent in the noble, age-old African dictum of ubuntu, which predates our constitutional democratic dispensation of 1994, is that kings and chiefs have the obligation to protect their people and to treat them with dignity.
I am sure that Dalindyebo, once he starts with his rehabilitation programmes provided by the department of correctional services, will practise ubuntu religiously on his people following his release.
Ubuntu is and was propagated by sage African thinkers, among them kings and chiefs who ruled their people while fully understanding that the African traditional customary courts in the rural villages they presided over had to administer African traditional justice in a fair manner.
Cruel, arbitrary punishment against those who had offended the king or chief without following the due process of African traditional custom was not allowed even prior to the birth of our constitutional democracy.
No king or chief had unfettered powers and rights to treat his or her people inhumanely.
Participating in the rehabilitative programmes during the king’s term of incarceration will be to his advantage, in that at some point the king may apply to be considered for parole so that the balance of his sentence can be served outside the confines of the department of correctional services’ facilities.
I believe the king’s sentence will serve as a deterrent and a reminder to him in particular, and to others in general who occupy a throne like his, that we are all equal before the law.
Ubuntu enjoins our traditional leaders, and all leaders, to treat the people they lead with respect.
Vengeance, in my view, is not what the king’s incarceration is aimed at achieving. Advocate Muofhe is the special adviser to Public
Service and Administration Minister Ngoako Ramatlhodi. He writes in his personal capacity