Chiefs want free reign

Congress of Tra­di­tional Lead­ers claims NDPP’s de­ci­sion to pros­e­cute Dalindyebo vi­o­lates his ju­di­cial im­mu­nity

CityPress - - News - ANDISIWE MAKINANA andisiwe.makinana@city­press.co.za

Tra­di­tional lead­ers are tak­ing on Par­lia­ment over its fail­ure to recog­nise tra­di­tional chiefs’ rights and im­mu­nity from pros­e­cu­tion for de­ci­sions made in tra­di­tional gov­er­nance struc­tures. In a re­lated mat­ter, they also want the courts to set aside the de­ci­sion to pros­e­cute King Buyelekhaya Dalindyebo, who is cur­rently serv­ing a 12-year sen­tence for kid­nap­ping, cul­pa­ble homi­cide and ar­son.

In an ap­pli­ca­tion be­fore the West­ern Cape High Court against the Na­tional As­sem­bly Speaker, Baleka Mbete, and Par­lia­ment, the Congress of Tra­di­tional Lead­ers of SA (Con­tralesa) ar­gues that:

Par­lia­ment has failed in its con­sti­tu­tional duty to “deal with mat­ters re­lat­ing to tra­di­tional lead­er­ship, the role of tra­di­tional lead­ers and cus­tom­ary law in that it has not passed leg­is­la­tion deal­ing with the sta­tus and pow­ers of tra­di­tional au­thor­i­ties and their ju­ris­dic­tion over tra­di­tional courts; and

Par­lia­ment has vi­o­lated the con­sti­tu­tional rights of tra­di­tional lead­ers by not en­sur­ing that they en­joy ju­di­cial im­mu­nity from crim­i­nal and civil li­a­bil­ity aris­ing from their de­ci­sions in the tra­di­tional courts.

Con­tralesa wants the court to de­clare that the na­tional di­rec­tor of pub­lic pros­e­cu­tions’ (NDPP’s) de­ci­sion to pros­e­cute Dalindyebo vi­o­lated the prin­ci­ple of ju­di­cial im­mu­nity ex­tended to tra­di­tional lead­ers when they ex­er­cise their ju­di­cial power.

Con­tralesa asked the court to re­view and set aside the de­ci­sion to pros­e­cute Dalindyebo on the grounds that the ac­tions of the king were not of­fences in terms of the Crim­i­nal Pro­ce­dure Act, read to­gether with the Transkei Pe­nal Code.

Con­tralesa wants the court to di­rect Par­lia­ment to pass ap­pro­pri­ate leg­is­la­tion deal­ing with the sta­tus of tra­di­tional courts and the crim­i­nal ju­ris­dic­tion of tra­di­tional lead­ers, within a pe­riod of 36 months from the date of the or­der of the court.

Con­tralesa also wanted the courts to in­ter­dict the min­is­ter of co­op­er­a­tive gov­er­nance and tra­di­tional af­fairs or any rel­e­vant ex­ec­u­tive au­thor­ity from tak­ing any steps un­der sec­tion 10 of the Tra­di­tional Lead­er­ship and Gov­er­nance Frame­work Act to cause Dalindyebo’s re­moval.

In an af­fi­davit, Nkosi Mwelo Nonkonyana, chair­per­son of Con­tralesa in the East­ern Cape, ar­gued that the con­vic­tion and sen­tence of Dalindyebo had “un­prece­dented ram­i­fi­ca­tions for the con­sti­tu­tional sta­tus of tra­di­tional au­thor­i­ties in South Africa, and their cus­tom­ary civil and crim­i­nal au­thor­ity”.

Dalindyebo was con­victed by the High Court in Mthatha in Oc­to­ber 2009 of cul­pa­ble homi­cide, three counts of ar­son, three counts of as­sault with in­tent to do griev­ous bod­ily harm, de­feat­ing the ends of jus­tice and kid­nap­ping.

Con­tralesa ar­gues in court papers that Par­lia­ment had recog­nised the con­sti­tu­tional duty to pass a law deal­ing with the sta­tus and role of tra­di­tional courts when it pro­cessed the Tra­di­tional Courts Bill. How­ever, the pro­cess­ing of the bill was frus­trated, with the re­sult that the leg­isla­tive process in­volv­ing it was not com­pleted.

In its re­spond­ing papers, Par­lia­ment said it was not obliged to pass such leg­is­la­tion but had nev­er­the­less en­acted the Frame­work Act and the Na­tional House of Tra­di­tional Lead­ers Act in terms of the Con­sti­tu­tion.

The deputy chair­per­son of the Na­tional Coun­cil of Prov­inces, Raser­iti Tau, re­spond­ing on be­half of Par­lia­ment and Mbete, stated that Par­lia­ment had also ini­ti­ated dis­cus­sions on the Tra­di­tional Courts Bill with a view to pass­ing it into leg­is­la­tion.

In his re­spond­ing papers, Co­op­er­a­tive Gov­er­nance and Tra­di­tional Af­fairs Min­is­ter Des van Rooyen said that in its court ac­tion, Con­tralesa was not rep­re­sent­ing the in­ter­ests of the abaThembu.

Van Rooyen stated that he re­ceived sep­a­rate cor­re­spon­dence from two se­nior Thembu Royal House lead­ers who in­formed him about the “med­dling of Con­tralesa in the af­fairs of the King­dom of abaThembu”.

The mat­ter is sched­uled to be heard in the West­ern Cape High Court in July.

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