Minister Masutha on his decision on a petition submitted by lawyers representing King Dalindyebo

29 December 2015

Members of the media
Fellow South Africans

Today I announce my decision on a petition submitted by lawyers representing King Buyelekhaya Dalindyebo (the King) on 23 December 2015.

King Dalindyebo is king of the Abathembu tribe in the Eastern Cape. During 2009, he 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. His attempt to appeal to the Constitutional Court was unsuccessful. He has thus exhausted all legal remedies available to him and is now petitioning me for a directive to reopen his case in terms of section 327 (1) of the Criminal Procedure Act 51 of 1977 (the Act). He is currently on bail until 30 December 2015 when he is expected to hand himself to the Head of Mthatha Correctional Centre as per the order of the Mthatha High Court. It is important to note that submission of this petition has no bearing on the pending incarceration as no endorsement was made to that effect in the order of court dated 23 December 2015.

Upon receipt of the petition 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 founding provisions of our constitution and the rule of law guide us in discharging our duties on matters of this nature. I have further decided to finalize and communicate my decision at the earliest opportunity today in light of the imminent coming into effect of the court order issuing the committal warrant. This matter has attracted publicity here and abroad because of the position held by the petitioner (the King) and the severe impact caused by the crimes he is convicted of and the sentence imposed. It is for this reason that I elected to communicate my decision on this platform.

The petition is 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. They argue that failure to do so is an injustice and has a bearing on the conviction of the King.

The second ground is their argument that the trial court ignored customary law in its dealing with the matter and this amounts to an injustice. It is important to state the law relating to a petition of this nature.

Section 327(1) of the Act provides as follows:

“If any person convicted of any offence in any court has in respect of the conviction exhausted all the recognised legal procedures pertaining to appeal of review, or if such procedures are no longer available to him and such person or his or her legal representative addresses the Minister by way of a petition, supported by relevant affidavit, stating that further evidence has since become available, which materially affects his or her conviction, the Minister may, if he or she considers that such further evidence, if true, might reasonably affect the conviction, direct that the petition and the relevant affidavit be referred to the court in which the conviction occurred…”

At the outset, I would like to indicate that when considering a petition in terms of the abovementioned section, I am not empowered to act as an appeal or review authority on the decisions that competent courts have made. My responsibility is to only consider further evidence which has since become available after exhausting all recognised legal procedures pertaining to appeal or review, or if such procedures are no longer available. In coming to a determination, I have to apply myself strictly to the parameters of the provisions of Section 327 as set out above. I have to ensure therefore that there is further evidence, which has since become available which, if true, will materially affect the conviction.

Of importance in this section is the jurisdictional precondition that should be met before I can act as requested by the King. The petitioner has to make out a case convincing me that the further evidence, if true, might reasonably affect the conviction. The issue of “further evidence since become available” as contemplated under section 327 was clearly articulated in the case of Hoosain v Attorney-General, Cape (2) 1988 (4) SA 142 CPD, where the Court stated that:
 
 “ … As pointed out, the petition to the State President can be brought only if the further evidence has become available ‘since’ the applicant has exhausted all his recognised legal procedures of appeal and review. It is, in my view, for the State President (currently the Minister) to be satisfied that the evidence has ‘since become available’, for no application to any Court is involved at the petition stage under s 327(1) in the matter. I have grave doubts as to whether the evidence in this case has ‘since’ the failure of applicant’s appeal to the Appellate Division on 24 March 1987 become available to applicant. It was contended by Mr Marais that it only became ‘available’ after the conviction and sentence of Kapdi and his gang. That, however, was in 1985. The statement of applicant’s sister-in-law as to what his brother told her of applicant’s alleged innocence, albeit after his appeal to the Appellate Division was dismissed, was something of which applicant was, if true, always aware. It is also significant that in the proceedings before Howie and Burger JJ, applicant chose not to rely on s 327(1). I quote from the judgment of Howie J:

‘Counsel for applicant referred to the words “has since become available” and said that the evidence sought to be led now, namely that of applicant, has not “since become available” but was, objectively speaking, always available; hence the applicant was barred from recourse to s 327.’

It is not part of my function, however, in this application to consider and decide on whether the further evidence applicant now seeks to give has become available to him ‘since’ he exhausted his other remedies. That is for the State President to do and I therefore do not do so, save to express my doubts as to whether, in any event, the provisions of s 327(1) are now open to the applicant.”.

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. 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.

This discretion was exercised by the Court in terms of Section 147(1)(a) of the Act which provides as follows:

“If an assessor dies, or in the opinion of the presiding judge, becomes unable to act as an assessor at any time during a trial, the presiding judge may direct:

(a) that the trial proceed before the remaining member or members of the court; or

(b) that the trial starts de novo, and for that purpose, summon an assessor in the place of the assessor who has died or has become unable to act as assessor.

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.

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, 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.

I have since communicated my decision to the King’s legal representatives.

Statement issued by Adv Mthunzi Mhaga Spokesperson for the Department of Justice and Constitutional Development, 29 December 2015