COMMENT: Phathekile Holomisa, Traditional Leader of the Hegebe Clan of Thembuland
Before the certification of the Constitution by the Constitutional Court in 1996, as being in conformity with the Constitutional Principles, the Congress of Traditional Leaders of South Africa appeared before the court and opposed the certification.
The Constitutional Principles had been adopted at the Kempton Park Constitutional Negotiations and were considered binding on the Constitutional Assembly which negotiated and adopted the final Constitution. This meant that the legitimacy and legality of the final Constitution was dependent on whether or not it conformed with the Constitutional Principles.
The Constitutional Principles pertaining to the institution of traditional leadership called for, inter alia, the recognition and protection of the institution of traditional leadership in the final Constitution. Whilst the interim Constitution (the precursor to the final one) did recognise and protect the institution of traditional leadership, by defining its role in the judicial, legislative and executive arms of governance, the final Constitution downplayed and undermined its role, place and its functionality.
Whilst it purports to recognise the institution it takes away the protection which was afforded by the Constitutional Principles.
Mysteriously, the learned judges of the Constitutional Court, sitting for the hearing of our opposition to the certification of the final Constitution, told us that traditional leaders should not be unduly worried as the word recognise in the final Constitution also meant to protect, saying it would make no sense for the institution to be recognised without being protected.
Our protestations to the erroneousness of such an interpretation of those words were met with the assurance that should any government undermine the institution in any way, either by law or action, we should run to the court and seek protection, which would be granted. We were, of course, not satisfied with such an assurance as it was imperative that such protection be apparent in the Constitution itself and not be dependent on interpretation by the court or any other courts for that matter.
In a blatant violation of the Constitutional Guidelines, the final Constitution does not give recognition to the role of traditional leaders as administrators of justice. The chapter dealing with the judiciary mentions by name the Constitutional Court, the Supreme Court, the High Courts, the Labour Court and the Magistrates Courts, but makes no mention of the original courts of the land, the Courts of Traditional Leaders.
When such an anomaly was raised before the eminent judges, with the call that such a chapter be amended to ensure the recognition and protection of such courts, Contralesa was assured that the sub-section referring to “and other courts” which may be established by an Act of Parliament, contemplated the Courts of Traditional Leaders as well. Naturally, we were not satisfied by such assurances as this placed the fate of these courts squarely on the whims of politicians of a particular government at that point in time.
As we speak there is no law governing the operations of the Courts of Traditional Leaders in terms of the Constitution. These courts continue to operate in terms of apartheid/colonial legislation and, of course, African law or customary law.
The Constitution reluctantly purports to recognise customary law in the relevant chapter but warns that such recognition is subject to the Constitution and other laws. An attempt by government to pass a law that would guide the operations of the Courts of Traditional Leaders was hounded out of the corridors and chambers of the National Council of Provinces in Parliament by howls and squeals from a number of advocacy groups.
It seems as if the raison d’etre of these groups is to fight any attempt of any nature that seeks to assert African values, norms and traditions as embodied in the institution of traditional leadership. This was the so-called Traditional Courts Bill. The government must now tip-toe very carefully as it attempts to bring the Bill back to the legislature so as not to offend the sensibilities of these very same advocacy groups. Over time these groups are assured of maximum coverage in the print and electronic media as they espouse a value system beloved of the owners of the news media.
Nobody in his right mind would condone the acts which His Majesty is said to have committed against his father’s people
Despite these constraints imposed by the final Constitution, the administration of justice within traditional communities continues unabated through the Courts of Traditional Leaders.
Innumerable cases are tried in these courts, thereby saving the State millions of rands which could be incurred through the Western style courts established by the final Constitution. These courts are, however, liable to transgress the provisions of the final Constitution and other laws by reason of the fact that the Constitution itself does not recognise them, nor does it afford protection to the institution of traditional leadership.
His Majesty King Buyelekhaya Dalindyebo (Ah! Zwelibanzi), Monarch of the Thembu nation was charged, prosecuted, convicted and sentenced for acts that were found to have offended the final Constitution and other laws of the land.
The acts committed by His Majesty were admittedly committed prior to the passage of the final Constitution. Yet reference has been made to the final Constitution in the course of his trial. Nobody in his right mind would condone the acts which His Majesty is said to have committed against his father’s people ( for that is how African traditional leaders refer to the people they lead, not subjects as Europeans refer to them).
From what we hear it does appear that His Majesty was extreme in dispensing what he considered to be justice. The people who came before him had apparently committed some offences against fellow villagers and the community, and as a result charges were laid against them before the king. In his capacity as a judicial officer in terms of African law or custom, His Majesty duly administered what he considered to be justice.
In the absence of any legitimate guiding statute he exceeded what would have been considered the bounds of natural justice even by the tenets of African law. Of course, as traditional leaders we do not have clear-cut demarcations between investigation of crime, the trial of cases and the execution of court judgements. We do tend to get involved, together with our counsellors and community members, in the performance of these roles.
The Magistrate Courts, the High Courts, the Labour Courts, the Land Claims Court, the Supreme Court of Appeals, as well as all other courts established by statutes have been known to make wrong decisions procedurally, substantively and in terms of the sanctions imposed. They have even wrongly acquitted guilty litigants. A judicial officer whose decision is overruled on appeal by reason of it having been wrongly made is never subjected to criminal prosecution. Even judges who sent innocent accused persons to the gallows were never prosecuted. The only remedy in the case of a wrong court decision is its alteration on appeal or review.
The Constitutional Court itself has obviously erred in some of the decisions it has taken. This is evident from the fact that in a number of cases decisions are taken on the basis of the majority view, with the minority being in disagreement. Under normal circumstances a court is not expected to operate like a legislature where majority rules. Nonetheless the Constitutional Court is the final refuge for a citizen who believes he has found no justice in all the other courts.
The King, the Thembu and Africans who believe in the African system of justice administration had been pinning their hopes on the Constitutional Court coming to the rescue of the institution of traditional leadership by listening to the appeal of His Majesty against the decisions of the High Court of Mthatha and the Supreme Court of Appeals.
This would have been an opportunity for the Constitutional Court living up to its promise to give protection to the institution in the event that the State failed to do so. Alas, the eminent justices of the highest court in the land disdainfully, without even the courtesy of giving reasons, rejected His Majesty’ request to allow him to appeal to that court. The Constitutional Court denied itself and the people of South Africa the opportunity to give leadership on a matter that is of immense importance to the majority of the African people.
Like its predecessor, the inaugural Constitutional Court, which rejected the appeal of traditional leaders to call on the Constitutional Assembly to protect the institution, this one has decided to refuse to step into the breach left by the politicians and to define the role of African leaders.
The ball has now been thrown back to government which is being requested to give clemency to King Dalindyebo; an obviously undesirable state of affairs as it puts the President in the invidious position of having to intervene in the space of the judicial arm of governance. We would not have been in this situation had the inaugural Constitutional Court listened to us. We are now in an even more serious quandary as African traditional leaders because, by their decision the Mthatha High Court, the Supreme Court of Appeals and the Constitutional Court, have exposed our role in justice administration as potentially criminal.
I believe even at this hour that the Constitutional Court, as the policy-making court actually, can still examine its conscience and, at the least, allow His Majesty King Dalindyebo to make his appeal to that honoured tribunal.
Advocate Phathekile Holomisa is the Traditional Leader of the Hegebe Clan of Thembuland in Mqanduli, an African National Congress Member of Parliament and the Deputy Minister of Labour, writing in his personal capacity and Counsellor to the King.