Traditional leaders throughout the country want immunity from civil and criminal liability when performing duties under customary law.
They told the High Court in Cape Town that they were now scared of dispensing justice in traditional courts, saying AbaThembu King Buyelekhaya Dalindyebo would not have been imprisoned had judicial immunity been granted earlier.
The court heard arguments this week from legal representatives of the Congress of Traditional Leaders of SA (Contralesa) that traditional leaders should enjoy the same immunity extended to judges when they preside over courts. The immunity is given to judges in order for them not to be intimidated when dispensing justice.
“They are saying as traditional leaders, they have reasonable apprehension that while exercising their duties in court, they risk criminal or civil liability. We say the court must recognise the immunity of traditional leaders as judicial officers,” said Advocate Thabani Masuku, arguing for Contralesa.
A full Bench of high court judges – John Hlophe, Denis Davis and Babalwa Mantame – heard the matter between Contralesa and Parliament, the ministers of justice, cooperative governance and traditional affairs, and the National Prosecuting Authority over two days this week.
Masuku said the matter of immunity did not arise in Dalindyebo’s case, and the king was not treated as a judicial officer. Instead, he was punished for administering justice as a judicial officer.
“Immunity is a major aspect of a civilised judicial system. The principle is embedded in legal policy,” argued Masuku.
The judges intimated that Contralesa was seeking a back-door appeal or a retrial of the Dalindyebo matter, which was finalised when the Constitutional Court dismissed his appeal last December.
Masuku denied this, but admitted that the Contralesa application came about as a result of the Dalindyebo case, and that “The king would walk!” if the high court ruled in their favour. “Traditional courts are courts under our constitutional order and should be afforded all the rights that all the courts have.”
Contralesa also accused Parliament of failure in its constitutional duty in terms of section 212 of the Constitution to “deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law” in that it has not passed legislation dealing with the status and powers of traditional authorities and their jurisdiction over traditional courts.
“Parliament has left the customary courts the way they were before 1994. It has left customary courts to regulate themselves,” argued Masuku.
He said section 212(1) of the Constitution dealt with constitutional rights and did not create a discretionary duty.
This, he said “is acknowledged by the minister of justice - that it is important to regulate traditional courts” and by the fact that the Traditional Courts Bill was drafted, although not passed.
Masuku said that had Parliament passed a law to regulate traditional courts, the issue of the immunity of traditional leaders who act as judicial officers would be covered under that law. “Immunity operates within a system that is regulated. There is a fundamental gap that exists.”
But none of the three versions of the Traditional Courts Bill tabled to Parliament and which were rejected by the public during the public consultation process over the past decade covered this.
Advocate Bogoshi Bokaba, arguing for Parliament, said there was no obligation for Parliament to pass a law and it can only do so if it deemed it fit. He said the section of the Constitution cited by Contralesa has a particular scope, but it does not talk about “judicial functions” of traditional leaders or traditional courts.
He argued that Parliament had met the requirement of section 212 when it passed the Traditional Leadership and Governance Framework Act of 2003.
Advocate Norman Arendse – on behalf of the ministers of justice and cooperative governance and traditional affairs – was more scathing in his criticism of the Contralesa application. He argued that King Dalindyebo was not acting as a judicial officer and that his sole defence was that he was acting as a king. “In fact, his actions brought traditional courts into disrepute,” added Arendse.
Hlophe cautioned, saying that the immunity that judges enjoy should be qualified, adding that it applied as long as one acted within the law. “It does not mean you must commit murder, steal or overload your truck with rubble...”
Hlophe was arrested and briefly detained in Cape Town in 2011 after being pulled off the N1 for driving a bakkie overloaded with rubble.
Davis quipped: “This court cannot dictate a timetable to Parliament. On what basis do we now mandate Parliament to give immunity to traditional court officers?”
Judgment was reserved.