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, chair-person 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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