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AbaThembu King Buyelekhaya Dalindyebo may ring in the new year behind bars after Justice Minister Michael Masutha turned down his application for a retrial today.
Just hours before Masutha made the announcement in Pretoria, Dalindyebo filed an urgent application with the Mthatha High Court to have his bail extended.
The court was expected to rule on the king's application tomorrow, but the outcome of the bail extension application would have no bearing on his conviction or imprisonment.
The king's bail - which was extended last week, just a day before he was to report to prison for his 12-year jail sentence for arson, assault and defeating the ends of justice - ends tomorrow and he is expected to present himself at prison to begin his sentence.
But according to Masutha, the petition made by Dalindyebo to the minister for a retrial was his last recourse because he had exhausted the appeal processes.
Masutha told journalists at a press briefing this afternoon that he disagreed with Dalindyebo's legal team that the trial was not properly constituted and that he was a victim of injustice.
Masutha also disagreed with the legal team that the trial judge erred by not replacing an assessor who died during trial.
"The legislation gives the presiding judge discretion, if he so wishes, to sit with or without assessors when adjudicating over a trial. Similarly, the presiding judge retains the discretion in the event of the death or incapacity of one of his assessors, either to proceed with the remaining member or members, or to start the trial afresh and appoint a new assessor in the vacant position", said Masutha.
The minister said there were no grounds presented by Dalindyebo's legal team that would warrant an "intervention for a directive as contemplated under Section 327 (1) of the Act in terms of which I am being approached".
Masutha said the only reason to consider a petition was in cases where new evidence came to light after a conviction.
Masutha rejected Dalindyebo's arguments and said no new evidence existed that could compel him to ask the court to review its judgment and give the king a retrial.
Dalindyebo had also argued that the trial judge ignored customary law during trial.
"With regard to the second ground of ignoring customary law, it is my considered view that this point once again constitutes an argument on point of law or interpretation of the Constitution on which only a competent court, and not myself as executive functionary, is competent to decide upon," said Masutha, before referring Dalindyebo to Section 34 of the Bill of Rights, which said that Dalindyebo was entitled to resolve his disputes through the courts.
"In the circumstances, I am unable to find anything contained in the aforesaid petition that constitutes further evidence which has since become available, which materially affects his or her conviction, and therefore am obliged to dismiss this petition," said Masutha.
