Courts of African Ori­gin must be un­der­stood

Daily Dispatch - - Opinion - Phathek­ile Holomisa

No man is in­fal­li­ble. This ap­plies to all hu­man be­ings re­gard­less of so­cial stand­ing, re­li­gious po­si­tion, po­lit­i­cal or ju­di­cial of­fice. Tra­di­tional lead­ers too, em­body­ing as they do all of the above po­si­tions – and more – are as prone to mak­ing mis­takes as the next man.

The in­car­cer­a­tion of King Zwelibanzi, af­ter hav­ing been cap­tured, tried, con­victed and­sen­tenced, for hav­ing ex­er­cised and per­formed what he deemed to be his pow­ers and­func­tions as the em­bod­i­ment of the Thembu sys­tem of jus­tice and po­lit­i­cal ad­min­is­tra­tion, is an abid­ing in­dict­ment on the African po­lit­i­cal and ju­di­cial lead­er­ship of the cur­rent SA.

In terms of African law the king and ev­ery other tra­di­tional leader is, among many other oc­cu­pa­tions, a ju­di­cial of­fi­cer. In our sys­tem of jus­tice ad­min­is­tra­tion iNkosi is part and­par­cel of his isizwe and par­tic­i­pates in all the ac­tiv­i­ties that mem­bers of his isizwe par­tic­i­pate in.

When a call is made that a crime is be­ing com­mit­ted, for ex­am­ple theft of live­stock, he pro­ceeds to the scene to give guid­ance on how the oper­a­tion must be con­ducted; you see, he is the com­man­der of his armies – big and small. When the crim­i­nals (the western­ers pre­fer to call them the sus­pects) are ap­pre­hended they are forcibly taken into cus­tody at the royal res­i­dence to await trial. As pre­sid­ing judge over the crim­i­nal trial pro­ceed­ings, iNkosi par­tic­i­pates in the trial to­gether with his coun­sel­lors.

Noth­ing pre­vents any of the par­tic­i­pants from shar­ing in­for­ma­tion that may shed light on true facts. Hav­ing pro­nounced judg­ment and the sanc­tion to be im­posed on the guilty party, noth­ing pre­vents iNkosi from par­tic­i­pat­ing in the ex­e­cu­tion of the pun­ish­ment.

Our sys­tem of gov­er­nance does not sub­scribe to the no­tion of the sep­a­ra­tion of pow­ers im­ported by the whites into SA and ac­cepted by the post-apartheid govern­ment.

I am talk­ing here as orig­i­nal Africans. Our na­tional as­sem­blies – iim­bizo – are our law­mak­ing fo­rums, whose de­ci­sions are bind­ing on all the cit­i­zens of the realm. The Lordin-Coun­cil – iNkosi neSigqeba Sayo – is the ex­ec­u­tive au­thor­ity, whose re­spon­si­bil­ity is to im­ple­ment the laws passed by the na­tional assem­bly. In all of th­ese fo­rums the tra­di­tional leader is a pre­sid­ing par­tic­i­pant, whose con­straint in ex­er­cis­ing such pow­ers is to en­sure he heeds the voice of the peo­ple and the coun­sel of his ad­vis­ers.

When Zwelibanzi took part in the ar­rest of peo­ple ac­cused of crim­i­nal acts, he was charged with ab­duc­tion. When he im­posed cor­po­ral pun­ish­ment he was charged with as­sault. His Majesty ad­vised that those who had charged oth­ers with mur­der should seek to sub­ject them­selves to me­di­a­tion, as is cus­tom, he was charged with de­feat­ing the ends of jus­tice.

When he par­tic­i­pated in the ex­e­cu­tion of the evic­tion or­der against per­sons so sanc­tioned, he was charged with com­mit­ting ar­son.

When the laws of par­lia­ment are found by the courts to be in vi­o­la­tion of the Con­sti­tu­tion they are ei­ther amended or re­pealed. When a mag­is­trate or judge has erred, his de­ci­sion is taken on re­view or ap­pealed against. If the higher court be­lieves the ap­pli­cant or ap­pel­lant, as the case may be, then an ap­pro­pri­ate de­ci­sion is taken.

Never has it hap­pened that a judge or mag­is­trate who con­ducts a case in the most shame­ful or fool­ish man­ner is charged for not do­ing his job prop­erly. Yet King Zwelibanzi is in jail sim­ply be­cause he has been seen to have ex­er­cised his ju­di­cial pow­ers and per­formed his func­tions in an im­proper man­ner. From the on­set our con­sti­tu­tional or­der branded him a crim­i­nal sus­pect, who was li­able to be pros­e­cuted, and not a ju­di­cial of­fi­cer who should have con­ducted him­self in a dif­fer­ent way.

Our con­sti­tu­tion as­sumes that western norms, val­ues and sys­tems are the way to go. When con­fronted with the fact there are Courts of African Ori­gin in SA, our law­mak­ers are gob­s­macked. They do not know what to do with them. They can­not even make a law that gov­erns and guides the man­ner of oper­a­tion of th­ese Courts of Ori­gin. The courts of western ori­gin are called by name – Con­sti­tu­tional Court, Supreme Court of Ap­peal, High Court, Re­gional Court, Mag­is­trate’s Court - but not those of African ori­gin.

The king by all ac­counts erred in the man­ner he dis­pensed jus­tice. Even in the Courts of African Ori­gin his con­duct of the cases would’ve been li­able to re­view and some of the sanc­tions would have been over­turned on ap­peal for be­ing ex­ces­sive. At­ten­tion would have been given to the plight of the vic­tims.

Those brought be­fore him for break­ing the law by, for in­stance, com­mit­ting acts of mur­der, rape and sex­ual ha­rass­ment of mar­ried women, would’ve been sub­jected to a proper trial.

The cur­rent sys­tem of ad­min­is­tra­tion has not paid at­ten­tion to the suf­fer­ing in­curred by the vic­tims of the king’s ex­cesses. All that this sys­tem cares about is the pun­ish­ment of the per­son con­sid­ered the of­fender. The course of ac­tion open to them is to in­sti­tute civil ac­tion; and for them to do so they must hire a lawyer - jus­tice must be pur­chased.

Un­til par­lia­ment and the con­sti­tu­tional court craft and adopt a law that recog­nises and guides the Courts of African Ori­gin along­side the cur­rent or­der King Buyelekhaya Dalindyebo (Ah! Zwelibanzi) should be re­leased from jail. He made mis­takes just as other judges do. He should be re­leased.

• This is an edited ver­sion of an in­put in a panel dis­cus­sion in EL last month by his Royal High­ness Nkosi P (ah! diliz­intaba), tra­di­tional leader of the Hegebe clan, ANC MP and deputy min­is­ter of labour.

He made mis­takes just as other judges do. King Dalindyebo should be re­leased


TOO HARSH: Call made to free AbaThembu King Buyelekhaya Dalindyebo

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