King Dalindyebo's petition dismissed - he didn't bring new evidence

Michael Masutha, the Minister of Correctional Services, has decided against reopening the case against abaThembu King Buyelekhaya Dalindyebo.

Masutha’s ruling is significant‚ given the ongoing attempts by traditional leaders to resist the Bill of Rights and the Constitution that states: “The institution‚ status and role of traditional leadership‚ according to customary law‚ are recognised‚ subject to the Constitution.”

Masutha said that his responsibility was to consider whether there was new evidence since the trial that would have affected Dalindyebo's conviction.

Dalindyebo's arguments were over points of law‚ rather than further evidence - hence obliging Minister Masutha to dismiss the king's petition.

The traditional leader is expected to report to Mthatha Maximum Correctional Centre on Wednesday to begin his 12-year jail sentence. However‚ Dalindyebo has filed another urgent application to have his bail conditions extended.

Dalindyebo petitioned Masutha to reopen the case in terms of section 327 of the Criminal Procedure Act‚ which allows the minister to refer a case back to the trial court if he is informed that new evidence has become available and he believes the new evidence may reasonably affect the conviction.

He submitted the petition through his lawyers on December 23‚ the day on which he was expected to hand himself over at the prison in Mthatha to start serving his sentence.

The king did not report to the prison pending the result of his petition‚ but Mhaga said on Tuesday that Dalindyebo is still expected to report to prison as per the order of the court when he was convicted.

The Constitutional Court earlier this month dismissed Dalindyebo's application for leave to appeal to that court after he failed to clear his name in an appeal to the Supreme Court of Appeal (SCA).

Dalindyebo was found guilty in 2009 in the Eastern Cape High Court in Mthatha on three charges of arson‚ three of assault with intent to do grievous bodily harm‚ two of defeating the ends of justice‚ one of culpable homicide and one of kidnapping. He was sentenced to an effective 15 years in prison.

On October 1‚ the SCA set aside Dalindyebo's culpable homicide conviction but confirmed the rest of the guilty verdicts and changed his sentence to an effective 12 years in prison.

The charges all related to mistreatment of Dalindyebo's subjects in the 1990s on a farm he owned near Mthatha in the Eastern Cape.

Dalindyebo set fire to the houses of three tenants to evict them because he believed they had breached tribal rules. He also publicly brutally assaulted three young men for allegedly committing crimes. A fourth man who was suspected of having been party to the alleged crimes was killed by members of the community and the prosecution contended this was on Dalindyebo’s instructions‚ but the SCA was ultimately not convinced that the king was guilty of culpable homicide for the man's death.

“Dalindyebo is testing the degree of impunity with which traditional leaders can act‚” Dr Sindiso Mnisi Weeks of the University of Massachusetts in Boston‚ said earlier on The Conversation‚ . “He is testing the extent to which they can be exempted from the democratic parameters established by the Constitution for all governing authorities.”

She said that even when negotiating the Constitution‚ traditional leaders argued that customary law and the institution of traditional leadership should not be subject to rights under the Constitution‚ and they continue to resist this.

“This is part of why challenging legislation or traditional leader misconduct through the courts has become the ultimate tool of those ordinary people living under autocratic and abusive traditional leaders‚” Mnisi Weeks said.

If the Traditional and Khoisan Leadership Bill is passed‚ which will give traditional leaders “more unaccountable and unconstitutional powers”‚ government departments will “simply delegate such powers to traditional leaders without going through the legislative process through which ordinary people and civil society can challenge them”‚ she warned.

- TMG Digital/TMG Courts and Law