PRETORIA – Traditional leaders say they deserve the same legal immunity as judges and magistrates when they preside over disputes, and they are prepared to go all the way to the Constitutional Court to get it.
Their campaign was sparked by the imprisonment of abaThembu King Buyelekhaya Dalindyebo for kidnapping, assaulting and burning his subjects’ homes.
The Congress of Traditional Leaders of South Africa (Contralesa) is set to take its legal fight with the Speaker of the National Assembly, Parliament, the ministry of Justice and Traditional Affairs and the director of public prosecutions to the Supreme Court of Appeal.
Contralesa will appeal against a full bench judgment of the High Court in Cape Town, which turned down its application to interdict Dalindyebo’s dethroning.
It wanted the court to declare that Parliament had failed in its constitutional duty by not passing “legislation dealing with the status and powers of traditional authorities and their jurisdiction over traditional courts”.
But Contralesa has been accused of being more concerned about the disgraced king’s predicament than the plight of its victims.
In court papers, former African National Congress (ANC) MP and Contralesa chairperson in the Eastern Cape Mwelo Nonkonyana said: “The prosecution, conviction and sentence of King Buyelekhaya Dalindyebo in the execution of his duties as a traditional leader have caused (a) lot of anxiety, fear, confusion and uncertainty among traditional leaders.
“(They) are now reluctant to execute their functions as they fear that their actions and decisions may expose them to criminal prosecution.”
In 2015, the Supreme Court of Appeal compared Dalindyebo’s reign to “what occurred during the medieval times”. He was convicted in 2009 of kidnapping, arson, defeating the ends of justice and assault for the punishment he meted out to subjects in the ’90s.
“He handed himself in to start his 12-year sentence in December 2015 after his Constitutional Court appeal failed.
The High Court dismissed Contralesa’a application, with costs, in November. This week, Nonkonyana said the congress was preparing an appeal and “we will go all the way to the Constitutional Court”.
He slated Parliament for not listening to traditional leaders, saying Zimbabwean First Lady Grace Mugabe had been granted immunity from prosecution on assault charges because there was political will.
“We have been engaging Parliament for donkey’s years and Parliament has not passed the legislation,” said Nonkonyana.
“(The court route) is very expensive but if our own legislators don’t want to listen to us, we had no other choice.”
Contralesa petitioned Justice minister Michael Masutha last year, demanding Dalindyebo’s release. Nonkonyana said the “ministry did not write to us” but there were “contestations within the royal family that are militating against us”.
One of Dalindyebo’s victims, Mbuzeni Makhwenkwana, 55 — whose home was among the three burnt down in 1995 — described Contralesa’s bid as a travesty.
“Contralesa cannot talk about the king’s release when I am yet to be compensated for my home,” he said.
Chief Thanduxolo Mtirara, of the Ngangelizwe royal family, overseeing the kingdom, said they were shocked by Contralesa’s litigation.
“We are not sure where they got that mandate from,” he said. “They should have taken the interest of the entire kingdom into consideration rather than an individual.”
Masutha and Parliament said they would deal with an appeal when it was lodged. Sunday Times