The article by advocates George Bizos and Lunga Siyo “Call for pardon rests on false premise that king can do no wrong” (DD, February 17) refers.
Just to clear up any question of credentials when challenging the opinion of two highly recognised senior counsels on the issue of a presidential pardon for His Majesty King Buyelekhaya Dalindyebo in terms of customary law, let me state that I grew up in the distant rural areas of the former Transkei.
Again when the king took it upon himself to ensure the safety of the family whose house was set on fire and had them stay overnight, the point is the Great House is where families receive first aid when they lose loved ones since the police stations are very far away.
Given this scenario, there is no contradiction between what Prof Koyana said what was expected of the king in terms of conduct.
Of course, those whose perceptions of the king may have been clouded by negative things, will see everything he has done in a bad light and bluntly refused to accept a positive perspective.
But such individuals had one thing in mind: to crucify him.
And, as was the case when people wanted to crucify Jesus, even his most trusted disciple, Peter, chose to deny him. I wonder how many in the king’s case decided to act like Peter? History repeats itself indeed.
Both senior counsels touched on the introductory remarks of the SCA “Imagine a tyrannical and despotic king...”.
Given the narrative relating to the untold story, it does not need a rocket scientist to see that such remarks are built on a one-sided judgment which did not take into account the background of both sides, the customary belief system, motives, judicial responsibility and the powers invested in His Majesty.
Another point raised by the senior counsels is: “Some have argued that in incarcerating the king, South African courts upheld ‘Roman Dutch’ law and disregarded customary law. It must, however, be noted that the manner in which the courts supposedly upheld “Roman-Dutch” law and disregarded customary law is not elaborated upon”.
Let me try to assist you. Had the issue of judicial power invested in the king by custom – judicial immunity – the provision of chapter 11 of the interim constitution that was effective during the period in which these incidents took place – been taken into account before passing judgment, we feel the courts’ ruling would not have been the same.
The court took various expert opinions in trying to find a definition of arson. Yet the courts only relied on Roman Dutch law or Western law-inclined authors and endorsed their views (Milton and Prof Hoctor, paragraph 66, page 35 of the SCA judgment) to arrive at the conclusion that arson allegedly committed by His Majesty had the intent to injure someone.
Had these authors’ views been evaluated against that of customary law experts, it could have been shown that His Majesty’s intentions were not to injure anyone or damage property inside the houses.
In paragraph 28 and 34 of the SCA judgment, state witnesses testified that all the houses set on fire had first been emptied of people’s belongings and it was ensured that nobody was inside.
How could one then still find that the intent was to injure when all efforts had been made to ensure nobody was injured in the processes of forceful eviction as is best understood by traditional communities practising customary law?
Roman Dutch law schooled and experienced judges lack the necessary background on what happens when one is allocated a site in rural areas. The method is far different from the one used in townships where people buy a site from a council and live according to municipal by-laws.
In rural areas the need for a site is subjected to scrutiny by a committee normally headed by the local traditional leader.
If the applicant is found to have committed a long list of crimes – theft, murder, rape – and defied customary practices or resolutions, the application can be rejected as the community cannot allow someone who poses a danger to reside with them.
It stands to reason that the same committee that allocated a site can withdraw it if one is found to have transgressed their rules.
In the SCA judgment (paragraph 52 page 27 and paragraph 269 page 36), the court found that the king had no community backing, that he sought to hide behind a faceless community for his “crimes”.
But this line of argument is seriously contradicted in paragraph 38 where state witnesses testified there had been meetings at the Great Place to discuss an eviction. This is corroborated by paragraph 57 where the headman concurred that there were meetings where a forceful eviction was discussed.
So the SCA finding has serious inconsistences and contradictions.
I hope the concerns about the courts promoting Roman Dutch law or Western laws during the proceedings are now clarified.
Another display of the lack of understanding of traditional community scarcities of resources by both senior counsels emerged when they wrote “Furthermore, it is common cause that the king did not convene a customary court in order to adjudicate over the crimes his subjects were alleged to have committed.”
At least both counsels agree allegations were brought before the king and of course, he presided over cases having listened to all sides. This hearing could have taken place in a room or next to the kraal.
The fact remains, there was an exchange of words between accusers and accused and punishment followed thereafter.
While the SCA judgment found (para 71 page 38) that the deceased died as a result of severe assaults perpetrated by members of the community, the same community was believed to be vulnerable to the king.
Yet Bizos and Langa never found anything sinister in this in their analysis and before concluding that the claims advanced by the king’s supporters “created a false dichotomy between the various sources of SA law and completely disregarded the victims of the king’s crime”.
If some community members were, according the SCA judgment, involved in beating one of the accused to death, what could stop them from grievously beating the other three boys who survived now that it is proven that they never acted on the king’s instructions? Just a question of logic.
I would love the opinion of the senior counsels on that.
The advocates also wrote, “The king appealed to the Constitutional Court, which summarily dismissed his appeal.”
In paragraph 10 of the SCA judgment, His Majesty is deprived of this right following allegations of undue influence exerted on witnesses to drop the charges against him – approached by one of the king’s chiefs, according to the SCA judgment.
The king is linked to the actions of a chief only because the chief is under his authority as part of the hierarchical chain of command.
No other factual evidence was tabled to prove beyond reasonable doubt that the king personally instructed the chief to pressure these witness, in order to counter the possibility that the chief acted according to his own will.
The same constitutional rights were unfairly denied the king on the basis of far-fetched and unfounded allegations which were not proven. But the onus was not on the king to prove otherwise
Further, he was unfairly forced to remember a sequence of events as if they happened a week ago. Surely loss of memory after eight years cannot be disputed.
He was not fit to stand trial.
I can only pray that President Jacob Zuma will not be persuaded by the same SCA judgment that is full inconsistence. And I humbly appeal to both Bizos and Siyo , to refrain from belittling us, calling us “king’s supporters” as if we were fans of a football club such as Kaizer Chiefs or Orlando Pirates. We are royalty, traditional leaders, a community of old people.
May God save the King.
Prince Langalibalele (Mthunzi Ngonyama) is one of King Buyelekhaya’s advisors
Failure to grasp custom
Just to clear up any question of credentials when challenging the opinion of two highly recognised senior counsels on the issue of a presidential pardon for His Majesty King Buyelekhaya Dalindyebo in terms of customary law, let me state that I grew up in the distant rural areas of the former Transkei.
Again when the king took it upon himself to ensure the safety of the family whose house was set on fire and had them stay overnight, the point is the Great House is where families receive first aid when they lose loved ones since the police stations are very far away.
Given this scenario, there is no contradiction between what Prof Koyana said what was expected of the king in terms of conduct.
Of course, those whose perceptions of the king may have been clouded by negative things, will see everything he has done in a bad light and bluntly refused to accept a positive perspective.
But such individuals had one thing in mind: to crucify him.
And, as was the case when people wanted to crucify Jesus, even his most trusted disciple, Peter, chose to deny him. I wonder how many in the king’s case decided to act like Peter? History repeats itself indeed.
Both senior counsels touched on the introductory remarks of the SCA “Imagine a tyrannical and despotic king...”.
Given the narrative relating to the untold story, it does not need a rocket scientist to see that such remarks are built on a one-sided judgment which did not take into account the background of both sides, the customary belief system, motives, judicial responsibility and the powers invested in His Majesty.
Another point raised by the senior counsels is: “Some have argued that in incarcerating the king, South African courts upheld ‘Roman Dutch’ law and disregarded customary law. It must, however, be noted that the manner in which the courts supposedly upheld “Roman-Dutch” law and disregarded customary law is not elaborated upon”.
Let me try to assist you. Had the issue of judicial power invested in the king by custom – judicial immunity – the provision of chapter 11 of the interim constitution that was effective during the period in which these incidents took place – been taken into account before passing judgment, we feel the courts’ ruling would not have been the same.
The court took various expert opinions in trying to find a definition of arson. Yet the courts only relied on Roman Dutch law or Western law-inclined authors and endorsed their views (Milton and Prof Hoctor, paragraph 66, page 35 of the SCA judgment) to arrive at the conclusion that arson allegedly committed by His Majesty had the intent to injure someone.
Had these authors’ views been evaluated against that of customary law experts, it could have been shown that His Majesty’s intentions were not to injure anyone or damage property inside the houses.
In paragraph 28 and 34 of the SCA judgment, state witnesses testified that all the houses set on fire had first been emptied of people’s belongings and it was ensured that nobody was inside.
How could one then still find that the intent was to injure when all efforts had been made to ensure nobody was injured in the processes of forceful eviction as is best understood by traditional communities practising customary law?
Roman Dutch law schooled and experienced judges lack the necessary background on what happens when one is allocated a site in rural areas. The method is far different from the one used in townships where people buy a site from a council and live according to municipal by-laws.
In rural areas the need for a site is subjected to scrutiny by a committee normally headed by the local traditional leader.
If the applicant is found to have committed a long list of crimes – theft, murder, rape – and defied customary practices or resolutions, the application can be rejected as the community cannot allow someone who poses a danger to reside with them.
It stands to reason that the same committee that allocated a site can withdraw it if one is found to have transgressed their rules.
In the SCA judgment (paragraph 52 page 27 and paragraph 269 page 36), the court found that the king had no community backing, that he sought to hide behind a faceless community for his “crimes”.
But this line of argument is seriously contradicted in paragraph 38 where state witnesses testified there had been meetings at the Great Place to discuss an eviction. This is corroborated by paragraph 57 where the headman concurred that there were meetings where a forceful eviction was discussed.
So the SCA finding has serious inconsistences and contradictions.
I hope the concerns about the courts promoting Roman Dutch law or Western laws during the proceedings are now clarified.
Another display of the lack of understanding of traditional community scarcities of resources by both senior counsels emerged when they wrote “Furthermore, it is common cause that the king did not convene a customary court in order to adjudicate over the crimes his subjects were alleged to have committed.”
At least both counsels agree allegations were brought before the king and of course, he presided over cases having listened to all sides. This hearing could have taken place in a room or next to the kraal.
The fact remains, there was an exchange of words between accusers and accused and punishment followed thereafter.
While the SCA judgment found (para 71 page 38) that the deceased died as a result of severe assaults perpetrated by members of the community, the same community was believed to be vulnerable to the king.
Yet Bizos and Langa never found anything sinister in this in their analysis and before concluding that the claims advanced by the king’s supporters “created a false dichotomy between the various sources of SA law and completely disregarded the victims of the king’s crime”.
If some community members were, according the SCA judgment, involved in beating one of the accused to death, what could stop them from grievously beating the other three boys who survived now that it is proven that they never acted on the king’s instructions? Just a question of logic.
I would love the opinion of the senior counsels on that.
The advocates also wrote, “The king appealed to the Constitutional Court, which summarily dismissed his appeal.”
In paragraph 10 of the SCA judgment, His Majesty is deprived of this right following allegations of undue influence exerted on witnesses to drop the charges against him – approached by one of the king’s chiefs, according to the SCA judgment.
The king is linked to the actions of a chief only because the chief is under his authority as part of the hierarchical chain of command.
No other factual evidence was tabled to prove beyond reasonable doubt that the king personally instructed the chief to pressure these witness, in order to counter the possibility that the chief acted according to his own will.
The same constitutional rights were unfairly denied the king on the basis of far-fetched and unfounded allegations which were not proven. But the onus was not on the king to prove otherwise
Further, he was unfairly forced to remember a sequence of events as if they happened a week ago. Surely loss of memory after eight years cannot be disputed.
He was not fit to stand trial.
I can only pray that President Jacob Zuma will not be persuaded by the same SCA judgment that is full inconsistence. And I humbly appeal to both Bizos and Siyo , to refrain from belittling us, calling us “king’s supporters” as if we were fans of a football club such as Kaizer Chiefs or Orlando Pirates. We are royalty, traditional leaders, a community of old people.
May God save the King.
Prince Langalibalele (Mthunzi Ngonyama) is one of King Buyelekhaya’s advisors
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