It is a uniquely South African story. From MK soldier groomed in exile in Zambia, to opposition Democratic Alliance member in democratic South Africa, AbaThembu King Buyelekhaya Dalindyebo, has proved a controversial and unpredictable royal. The young Dalindyebo was forced into exile in 1974, followed by his father, King Sabata Dalindyebo, in 1980. King Sabata died in exile in Zambia in 1986.

King Buyelekhaya Dalindyebo returned to South Africa as a 26-year-old in 1989 and was restored as the King of the AbaThembu after years of interference in royal and traditional affairs by the apartheid government during which Kaiser Matanzima, who ranked only as a senior Thembu chief and who took advantage of the Bantu Authorities system, was declared “Paramount Chief”. The appointment of Matanzima – who later became the leader of the “homeland” of Transkei – to the position of Paramount Chief created deep divisions among the AbaThembu.

The king’s current predicament – he finds himself serving a 12-year-sentence for arson, assault and culpable homicide – and the manner in which politicians and traditional leaders have rushed to his defence and to pay respects, highlights that matters of customary law and traditional leadership will increasingly come to occupy a central focus of South African political life. Around 21 million South Africans currently live within the boundaries of ‘traditional communities’.

That Julius Malema and an entourage of senior EFF officials should rush to St Dominic’s Hospital in East London to visit the king, a now suspended member of the Democratic Alliance, and encourage him to break his hunger strike, points to Malema’s astute and opportunistic reading of the deep significance of traditional leadership to many South Africans.

“We have never seen such a humiliation. We thought that the humiliation of our traditional leaders ended with colonial times and the apartheid regime,” Malema told the media outside St Dominic’s hospital in East London, where the king was moved after embarking on a hunger strike.

Malema suggested that the king should have been sentenced to “house arrest” and that in future traditional leaders who fell foul of the law should be treated differently, “they are royal blood!” Hedging his bets, he was quick to add, however, that he was not suggesting that the king should not be held accountable “we must all be accountable, all of us must be subjected to the judiciary”.

The crimes that led to the king’s incarceration took place in 1995 and 1996 near Mthata in the Eastern Cape, before the adoption of the country’s new constitution. It is this technicality that some are arguing render the current judgement “an injustice”.

And while the monarch handed himself over to Correctional Services to begin serving his sentence on 30 December, his lawyer, Zehir Omar, told the Daily Maverick that he would continue to try to secure bail for the king, pending an application for review of the case on various legal grounds. In December in the Mthata High Court, Judge Nozuko Mjali refused to extend the monarch’s bail pending this review. And while Judge Mjali undertook at the time to provide provide reasons for the ruling, said Omar, she still has not done so almost three weeks later.

Ironically, the King exercised his authority under old colonial and apartheid laws, the Transkei Authorities Act of 1965 as well as the Black Administration Act of 1927, which in many ways subverted traditional and customary law as it was recorded and practised in the pre-colonial era. Nonetheless, those currently defending the king and his actions have invoked the authority these old laws vested in the monarch to defend his actions with regard to those community members he “punished”.

Writing in the City Press, Tami Ka Plaatjie, head of ANC research and advisor to Minister of Human Settlements, Lindiwe Sisulu (who, incidentally, is a subject of the King) charged that the king had been convicted as “a civilian and not as a king” and that this was “necessary in order to denude him of his status as king so that he was rendered weak, submissive and vulnerable in the eyes of the law. This was the same strategy that apartheid used to oppress Africans – we had to be dehumanised before we could be told we were inferior. Our courts uphold Roman-Dutch law, euphemistically called civil law, and disregard customary African law.”

Minister Sisulu has often attempted to mediate behind the scenes when King Dalindyebo has dug in his heels on a particular matter including boycotting of his uncle Nelson Mandela’s funeral in 2013. Dalindyebo was offended that President Jacob Zuma, whom he called “a Zulu boy” at the time, would welcome guests and dignitaries instead of him. He later apologised to Zuma for his remarks.

Ka Plaatjie’s argument and narrative is one supported by Phathekile Holomisa, former president of the Congress of Traditional Leaders (Contralesa) who has been speaking on behalf of traditional leaders who fall under King Dalindyebo’s jurisdiction. Traditional leaders are of the opinion that the king was convicted “for exercising his traditional legal duties” said Holomisa.

“If the decision of his majesty was found to be wrong‚ he should be treated the same [way] other judiciary officers [are] when their decisions are overturned,” Holomisa said adding “he cannot therefore be criminally charged for executing his judiciary duties as king in a traditional court in line with customary law.”

Speaking as panellists on the SABC2 programme Rights and Recourse over the weekend, constitutional expert Paul Ngobeni (who was once legal adviser to Sisulu) as well as former NPA head, Menzi Simelane, both intimated to host Dumile Mateza that the monarch had been charged in a “Western legal way” and that customary law had been shamefully dismissed and disregarded.

What has been lost in the debate about the disjuncture between the constitution and what some interpret as customary law and the powers of traditional leaders are the details of the crimes for which the king has been jailed, which are set out in the SCA judgement of October 2015.

One case, involving Sonteya Stokwana, began when the King Dalindyebo impounded Stokwana’s goats and sheep. The SCA judgement, in which the king was called “tyrannical and despotic” makes for disturbing reading:

“In the present case, the trouble that ultimately led to the appellant’s conviction on some of the charges referred to above, started with Stokwana’s encounters with his monarch. The first event was that 170 of Stokwana’s goats and approximately 80 of his sheep were impounded at the instance of the appellant on the basis that they had strayed beyond their normal grazing area and had wondered onto restricted areas which had been cordoned off to enable them to recover from the previous years’ grazing. Stokwana denied this but in any event decided to start paying off the fine that had been imposed by the appellant to enable the release of his impounded stock. He paid R400 towards their release but still owed a substantial amount of money. His stock was released to him on the understanding that the balance owing in respect of a fine imposed by the King would be paid. In the intervening period, Stokwana’s horse was impounded. According to him there was no justification for the horse being impounded, but he nevertheless made the journey to the ‘Great Place’ to pay the R20 release fee. At the time that he paid the fine, there was, according to Stokwana, an unpleasant exchange between himself and the appellant’s sister which, he testified ended with her hurling insults at him.

Stokwana testified that he had unsuccessfully attempted to borrow money to pay the balance of the fine. The State’s case was that the delay in paying the fine as well as the allegation that Stokwana had taken his horse from the ‘Great Place’ by force invoked the appellant’s ire and caused him to lead a march on Stokwana’s homestead. According to the evidence of a number of State witnesses, including Stokwana’s wife and others who had previously been loyal to the appellant, the appellant accompanied by a gaggle of his supporters arrived at the homestead and after ordering Mrs Sonteya to remove the family’s belongings from the house, set fire to the main hut as well as to two others and to the kraal in which there were nine young lambs, including one that had only two legs. Witnesses testified that, the appellant also set fire to a small field of maize, which Stokwana and his family maintained as part of a larger garden. Stokwana’s wife testified that there was an amount of R200 hidden in a rafter of the main hut which was destroyed due to the fire. The amount of R200 was money that had been collected as part of the funds of a local crèche for which Stokwana acted as a treasurer. The nine lambs had all perished due to the fire. The entire maize crop was also lost.”

Earlier this year, speaking at the Judges Matter Coalition roundtable in Cape Town to discuss various developments in democratic South Africa with regard to the constitution and customary law, Wilmien Wicomb, an attorney in the Constitutional Unit of the Legal Resources Centre, said that customary law was one area of the law that had seen the “most radical development” in the first 20 years of the Constitutional Court. The adoption of the Constitution, said Wicomb, marked the first time that indigenous customary law was recognised as a source of law equal to its common law and even statutory law counterparts.

By 2003 customary law was recognised as an “independent system of norms to be understood and interpreted within its own context and, in particular, the context of how it is lived and applied by the community (with no reference to traditional leadership). This system is by its nature evolving and must therefore not be stifled by the interpretations of authors – or, by implication, the legislature. What is more, it is recognised that customary law gives rise to rights in land and other resources that must be recognised as real rights – and where appropriate, rights of ownership.”

Ironically, says Wicomb, in the same decade the executive and legislative spheres of the South African government began to entrench an understanding of the constitutional recognition of custom with a completely different emphasis, namely the recognition of traditional leaders.

“While this emphasis on one aspect of customary law – governance or the locus of power – may seem justified given the attention the Constitution itself affords traditional leadership, it is the complete disregard for the recognition of the customary law system that underlies traditional leadership that is problematic – and, I would argue, not constitutionally tenable. This is even more so given that the Constitutional Court’s jurisprudence emphasises the implications of customary law for the ordinary people who abide by it,” she said.

This was, she added, far more than a mere game of “semantics”.

“Instead, it continues to reduce members of traditional communities to the second class citizens that they were under apartheid, but now with a constitutional veneer.”

In 2008, the Constitutional Court was faced with its first leadership dispute brought by Ms Tinyiko Shilubana. The Court described the case as one that “raises issues about a traditional community’s authority to develop their customs and traditions so as to promote gender equality in the succession of traditional leadership”. But it also “raises issues regarding the relationship between traditional community structures and courts of law envisaged by our constitutional democracy”. Ms Shilubana claimed that, whereas the customs of her community in earlier times would not have allowed a woman to succeed as chief, the law of her community had developed to indeed allow for such an appointment. As proof, she provided a resolution of the elders of the community supporting her appointment.

In the meantime four factors have been set out that will be considered by the Constitutional Court in determining the content of a living customary law rule: historical practice (with the appropriate caution as to Western notions and historical interpretations), current practice, the need to be flexible to the specific contextual needs and the need to promote customary law to be brought in line with the Bill of Rights.

“These factors reflect the Constitutional Court’s sophisticated understanding of the complexity of dealing with living customary law within a formal legal forum based on Western legal norms. It also affirmed the Court’s understanding that customary law is the law of the community and there to be developed by the community rather than the traditional leader,” said Wicomb.

Since 2011 the Traditional Courts Bill “made a surprise” return to parliament sparking “one of the most coordinated projects of resistance to hit parliament since 1994 – and the most successful”.

The current rallying by those in authority around traditional leaders (many who have found executive backing) rather than customary law as the source of legitimacy of authority may yet backfire.

“The effect of the current legislative framework is that traditional leaders have almost unfettered power to make, enforce and adjudicate law within those communities. Moreover, one of the great ironies of apartheid South Africa is that vast areas of the homeland territories turned out to be rich with resources. A couple of South African chiefs, for example, are sitting on top of 70% of the world’s platinum wealth. To be recognised as the leader of a traditional community is thus to be the one to decide over – and benefit from – the fate of your community’s resources. The stakes are very high.”

Which is why, as communities begin to find it increasingly difficult to assert the rights of communities over traditional leaders, these crucial issues will form part of an ongoing sophisticated, dynamic and evolving interpretation of Constitutional law in South Africa.

Finally, it is important to bear in mind that ultimately king Buyelekhaya Dalindyebo has found himself subject to the supreme law of the land while the rest of us debate, challenge and develop new understandings of ourselves in relation to the law. DM

Photo: AbaThembu King Buyelekhaya Zwelibanzi Dalindyebo speaks to journalists after handing over a memorandum to government officials in Pretoria July 10, 2013. REUTERS/Sumaya Hisham.