Mandla Seleoane: Avoiding jail a familiar ruse

THE case of AbaThembu King Buyelekhaya Dalindyebo poses interesting questions. I argued the legal untenability of his approach to his trial in an earlier column in this paper (“Is presiding judge or king in the dock the monarch of courtroom?”, December 24 2009). As it might be recalled, his stance was that judges were inferior to him as king and that, therefore, they could not try him. Well, the trial judge tried him, found him guilty and jailed him for 12 years. It is a matter of record that he approached both the Supreme Court of Appeal and the Constitutional Court in an endeavour to overturn his conviction and sentence. He was not successful. It is also a matter of record that he has applied for a presidential pardon, so that he might be spared the ordeal of imprisonment and that he has petitioned for a retrial – all in vain. In his initial approach to his trial, Dalindyebo failed to appreciate the psychology of the establishment. By taking the stance that no judge in South Africa could try him, he was bringing into question the whole establishment in a very fundamental way. I don’t argue that he would have been found guilty even if the facts had pointed the other way, just so that the establishment vindicates itself. I do argue, however, that the establishment does take an attitude to anyone who questions it fundamentally, whether it admits it or not. I do argue that Dalindyebo should have taken that into account in taking the position that judges were inferior to him and could therefore not try him. Judges believe they are a rather important feature of our social arrangements and that without them, society as we know it could not survive. Their conviction in this regard is so strong that they have, throughout the ages, held (contrary to the fact that they are established by an act of parliament) that they are not a creature of statute and that their jurisdiction is “original”. As a result of this disposition, they tend to resist any notion which might oust their jurisdiction. If the trial judge had no jurisdiction to try Dalindyebo because, in effect, he is the king’s subject, it stands to reason that judges of the Supreme Court of Appeal and of the Constitutional Court had no jurisdiction to hear the appeal. The judges of the Supreme Court of Appeal and of the Constitutional Court are also, by a parity of reasoning, inferior to the king.

Therefore if Dalindyebo is above the judiciary, he is also above the Supreme Court of Appeal and the Constitutional Court. Why, then, would he approach them and ask them to help him avoid the ordeal of imprisonment? The proposition assumes, of course, that Dalindyebo was making a principle argument at the trial court and that he would, therefore, stand and fall by that principle. There have been examples of this sort of thing in our history. PAC leader Robert Sobukwe refused to acknowledge the jurisdiction of the court which tried him and therefore would not even plead before it. When offered an opportunity to say something which might soften the sentence to be imposed on him, he declined the opportunity. Political trial accused James Mange similarly refused to participate in his trial because he rejected the court’s jurisdiction to try him. If Dalindyebo acted in a politically consistent manner, what one would expect is that, after his conviction, he might take the stand and make a statement to the effect that he doesn’t recognise the jurisdiction of the court but that since the whole thing ultimately winds down on uneven power relations, he would serve his sentence like the philosophic stoic. If he had done that, we might still disagree with his thinking – as, indeed, we would hopefully oppose the notion of the divine rights of kings if it were a feature of our political arrangements – and still appreciate his willingness to pay the price for his convictions. We might even respect him for that! But there is something deeply undignified in contesting the jurisdiction of the courts and then, when they convict you, plead with them to spare you from spending time in jail. If Dalindyebo were thinking in a politically consistent manner, he should argue that President Jacob Zuma and Justice and Correctional Services Minister Michael Masutha are commoners and are therefore beneath him. Therefore he should never approach Zuma and ask him for pardon – how can a commoner pardon the king? He should never approach Masutha and ask him for a retrial – retrial by the same inferior judges! But hey, who cares for political consistency in a society which rewards inconsistency so handsomely? Don’t we know someone who asked for his day in court so that he might clear his name of all unfounded allegations against him and then, when afforded his day in court, found every reason in the rules book for not taking the day? Don’t we know any organisation in South Africa which championed the notion of equality before the law since 1912 and threatened murder against anyone in the NPA who might be bent on giving the leader his day in court in 2009? So yes, well done King Dalindyebo, there’s nothing wrong at all in trying your luck. If you had succeeded, you might continue to rule shamelessly over the AbaThembu and few or no people would remember how you avoided the spectre of imprisonment, which might rob you of your right to rule – such a thing is no big deal in this part of the world.