A person can be appointed to serve Abathembu King Buleyekhaya Dalindyebo’s 12-year jail term on his behalf according to tradition, the Congress of Traditional Leaders of SA (Contralesa) has said.
“In terms of our tradition, a king does not really go to jail. His people choose a person on his behalf because he is the father of the nation,” Contralesa general secretary Xolile Ndevu told News24.
He said this was done “knowing very well” that the king would do something to thank the servant.
“Sometimes a king would then compensate that person by giving a status of a supreme loyal subject, headman or chief. Or he may give a piece of land or cattle.”
But constitutional law expert Professor Pierre de Vos said on Tuesday that no traditional leader was above the law.
He said the Constitution allowed for the recognition of traditional leaders and customary law, but no leader had the power of a court to find somebody guilty or punish them.
“There is no provision in South African law for one person to serve another sentence. It would be like one person writing an exam on behalf of on another person. It would be a fraud in some way,” he said.
The Supreme Court of Appeal on Thursday replaced the king’s 15-year jail sentence with a 12-year one, News24 reported. Dalindyebo succeeded only in having his conviction on a charge of culpable homicide and the accompanying 10-year jail sentence set aside. The SCA dismissed the rest of his appeal.
In 2009, the Eastern Cape High Court found him guilty on seven counts of kidnapping, three of arson, three of assault, two of defeating the ends of justice, and one of culpable homicide.
His crimes included burning down the homes of three of his subjects for allegedly violating tribal rules, and ordering the father of a man his subjects had killed not to report the matter to police.
Dalindyebo had reportedly indicated his intention to approach the Constitutional Court to challenge the SCA ruling.
The Eastern Cape co-operative governance and traditional affairs department said in a statement that “King Dalindyebo remains the King of Abathembu”.
President Jacob Zuma had the power to remove a king’s standing after considering formal submissions from the relevant royal family.
The department said a successor could assume the position, roles and responsibilities subject to the royal family having taken a resolution and formally informing Zuma.
“In the case of King Dalindyebo, the President’s office and the national department will lead the process at the appropriate time and inform the provincial government as the matter falls outside the powers of the premier in terms of the governing legislation,” said the department’s Mamnkeli Ngam. News24