When the King can do a lot of Wrong : some reflections on S v Dalindyebo 2016 (1) SACR 329 (SCA)

• DOI: 10.25159/2522-6800/7049
• Date: 01 July 2020
• Pages: 1-21
• Published date: 01 July 2020

Case Note

Southern African Public Law

https://doi.org/10.25159/2522-6800/7049

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), ISSN 2219-6412 (Print)

Volume 35 | Number 2 | 2020 | #7049 | 21 pages

© Unisa Press 2021

When the King can do a lot of Wrong: Some

Reflections on S v Dalindyebo 2016 (1) SACR 329

(SCA)

Sipho Nkosi

Lecturer

University of Johannesburg

snkosi@uj.ac.za

Abstract

In this note, the author discusses the trial of King Buyelekhaya Dalindyebo of

the AbaThembu tribe, his conviction and sentence—and the aftermath thereof.

He examines the legal and constitutional parameters of the immunity of

traditional leaders from criminal and civil liability in the exercise of their official

functions. The author also attempts to answer some of the questions that are

raised by the judgment, albeit tangentially, about the relevance and applicability

of the maxim rex non potest peccare in South Africa. The note also examines

the maxim’s British historical roots and its points of contact with the pre-

colonial, South African version. The author’s conclusion is that despite South

Africa having been a British colony at some point, the maxim has never been

part of the country’s legal history and constitutional framework. Even if it were

to be assumed that the maxim was an integral part of pre-colonial South African

constitutional jurisprudence, such as it was, he contends that it would now be

palpably inimical to the values that are embodied in the Constitution and the

Bill of Rights.

Keywords: Constitution; customary-law practices; traditional leaders.

Nkosi

2

Introduction

Buyelekhaya Dalindyebo, the king of the AbaThembu tribe, was sentenced in December

2015 after protracted criminal proceedings.

1

There are many legal and constitutional

questions that were raised by the judgment of the Supreme Court of Appeal, that still

need to be resolved. This is because it brought into sharp focus the jarring relationship

between the Constitution of the Republic of South Africa Act (the Constitution)

2

and

the status and role of traditional leaders. The main purpose of this note is to examine

whether modern-day South African traditional leaders may, with impunity, injure,

maim, or destroy the property of the members of their community—in the name of

culture and tradition. Put otherwise, the question is whether the South African

constitutional framework allows for a parallel legal system which is insulated from the

tenets and prescripts of the Constitution, and where the English maxim rex non potest

peccare

3

—or its pre-colonial African equivalent—applies. While the Constitution

clearly recognises customary law, the status of traditional leaders and related

institutions, such recognition is clearly circumscribed.

4

Needless to say, the Constitution

is the supreme law of the country, and every other law, rule or practice is subsidiary to

it.

5

But, therein lies the country’s constitutional paradox. The framers of th is seminal

document sought to fit into a modern-day Constitution (including the Bill of Rights

ensconced in it) age-old customary law institutions and practices. This conundrum is

further exacerbated by traditional leaders who insist that they should be exempt from

criminal or civil liability for acts performed in the exercise of their powers and

functions.

6

The crux of their contention is that they ought to be accorded all the

immunities that their ancestors enjoyed in pre-colonial times.

7

The decision of the

Supreme Court of Appeal in S v Dalindyebo

8

serves as a good foil for this purpose.

The Facts

The facts of this case demonstrate how abuse and wanton destruction could be visited

on vulnerable communities under the guise of culture and tradition. The case itself

1

Despite the fact that King Dalindyebo has now b een released from prison, the principles discussed in

this note still remain relevant, for posterity.

2

Act 108 of 1996 (the Constitution).

3

The phrase means, ‘the king can do no wrong’.

4

See s 211 of the Constitution.

5

Section 2.

6

In fact, the Congress of Traditional Leaders of South Africa lodged an application in the Western Cape

High Court, Cape Town, for an order compelling the Speaker of Parliament and the House of Assembly

to pass a piece of legislation along these lines. However, that application was dismissed with costs—

see Congress of Traditional Leaders of South Africa v Speaker, National Assembly and Others [2016]

ZAWCHC 206 (Contralesa v Speaker), the court holding that the application had no foundation in

both fact and law, para 44–49, 65.

7

ibid.

8

2016 (1) SACR 329 (SCA).