South African Justice Minister Michael Masutha on Tuesday dismissed a petition by AbaThembu King Buyelekhaya Dalindyebo to reopen his case.

At a press conference in Pretoria, Masutha said: “In the circumstances, I am unable to find anything contained in the aforesaid petition which constitutes ‘further evidence which has since become available, which materially affects his or her conviction’ and therefore am obliged to dismiss this petition.”

During 2009, Dalindyebo was sentenced to an effective period of 15 years’ imprisonment after being convicted on various crimes ranging from culpable homicide, arson, assault with intent to do grievous bodily harm and kidnapping by the Mthatha High Court.

On appeal to the Supreme Court of Appeal, his conviction of culpable homicide was set aside and the sentence was reduced to 12 years’ effective imprisonment.

An appeal to the Constitutional Court had also failed leading to Dalindyebo to petition the justice minister for a directive to reopen his case in terms of section 327 (1) of the Criminal Procedure Act 51 of 1977 (the Act).

Dalindyebo, the king of the AbaThembu tribe in the Eastern Cape, is currently on bail until Wednesday 30 December when he is expected to hand himself over to the head of Mthatha Correctional Centre as per the order of the Mthatha High Court.

Masutha said he had communicated his decision to the King’s legal representatives who had submitted the petition shortly before Christmas.

Masutha said that following the Constitutional Court challenge, the king “has thus exhausted all legal remedies available to him and is now petitioning me for a directive to reopen his case”.

The minister said it was important to note that the submission of the petition had no bearing on the king’s pending incarceration.

Masutha’s dismissal of the petition seemingly marks the end of Dalindyebo’s legal recourse to fight his conviction and pending incarceration.
However, King Dalindyebo’s attorney, Zehir Omar, said the Abathembu king had not exhausted all his legal remedies and said the justice minister had misinterpreted the act in reaching his decision to dismiss the petition, calling it a “failure of justice”.

According to Omar, the Mthatha High Court has granted Dalindyebo an opportunity to argue to have his bail extended until all legal avenues had been exhausted.

Masutha said: “Upon receipt of the petition (on December 23) I received a further request from the lawyers representing the King for a meeting with a view to making oral submissions. I must indicate that although I am not required to hear oral submissions in terms of the relevant section, as I do not sit as tribunal, I felt it prudent to do so as a matter of courtesy and fairness. I met his lawyers earlier today and their oral submissions have been considered in arriving at my decision.”

The king’s petition was based on two grounds, namely that upon the death of one of the assessors during trial, the presiding judge should have made an order after hearing the parties in this regard. The king’s legal representatives argued that failure to do so was an injustice and had a bearing on the conviction of the king.

The second ground for the petition was the argument that the trial court ignored customary law in its dealing with the matter and that this amounted to an injustice.

According to the justice ministry, once all legal avenues have been exhausted and if further evidence subsequently became available which may reasonably affect the conviction, a person may petition the justice minister who may, after due consideration, issue a directive that the matter be referred to the court in which the conviction occurred.

“In his petition, the King states that the trial court consisted of a judge and two assessors. During the course of the trial, one of the assessors died but the judge proceeded with the trial with one assessor,” Masutha said.

“The King is of the view that the court was no longer properly constituted and he did not get a fair trial. This ground was never raised at any of the courts that have considered the case despite the King being legally represented and having been described by the Supreme Court of Appeal as an ‘active litigant’. The presiding judge has a discretion in situations where an assessor dies to determine how the trial should proceed.

“The legislation gives the presiding judge a discretion, if he so wishes, to sit with or without assessors when adjudicating over a trial.

“Similarly, the presiding judge retains the discretion in the event of the death or incapacity of one of his assessors, either to proceed with the remaining member or members, or to start the trial afresh and appoint a new assessor in the vacant position.”

Masutha concluded: “It is my considered view that the first ground presented, does not warrant my intervention for a directive as contemplated under section 327(1) of the Act in terms of which I am being approached.”

With regard to the second ground of ignoring customary law, Masutha said “it is my considered view that this point once again constitutes an argument on a point of law or interpretation of the Constitution which only a competent Court and not myself as Executive functionary, is competent to decide upon. In this regard I wish to allude to Section 34 of the Bill of Rights which entitles parties to have the disputes adjudicated by the courts.

“In the circumstances, I am unable to find anything contained in the aforesaid petition which constitutes ‘further evidence which has since become available, which materially affects his or her conviction’ and therefore am obliged to dismiss this petition.”

Dalindyebo was convicted and sentenced for setting fire to the homesteads of three of his subjects after accusing them of breaching tribal rules, of publicly assaulting three young men, while the culpable homicide charge related to the killing of a fourth young man by members of the community, apparently on the orders of the king.

ANA