Johannesburg - The Eastern Cape’s dagga-smoking king moved a step closer to jail with the failure of his legal appeal.
But he is gathering support for his political battle to retain his kingship, making it harder to implement the legal process.
The controversial AbaThembu King Buyelekhaya Dalindyebo failed to process the paperwork on his appeal against his 15-year jail sentence for culpable homicide, arson and kidnapping, and the Supreme Court of Appeal (SCA) has now thrown it out.
“According to a communication between the registrar of the High Court in Mthatha and the registrar of the Supreme Court of Appeal, the file was returned to the Mthatha registrar because the appeal had lapsed,” said advocate Mthunzi Mhaga, spokesman for the Ministry of Justice and Correctional Services.
“It is up to the National Prosecuting Authority (NPA) and the police to take the matter forward because on record there is no appeal at the SCA.”
Mhaga said the Mthatha registrar had written to the director of public prosecutions (DPP) in Mthatha onWednesday to alert him to the failed appeal.
“It’s out of time,” said Mhaga.
Dalindyebo now faces arrest and prison.
“The police have every right to say to the NPA: get a warrant,” said Mhaga.
On Monday, neither the NPA nor the police head office responded to enquiries on this, and the Department of Correctional Services referred enquiries elsewhere.
Dalindyebo is fighting both to stay out of jail and to retain his royal title.
The criminal case dates back to incidents between June 1995 and January 1996 on Dalindyebo’s farm Tyalara, near Mthatha, when he ordered disciplinary action against subjects.
It took several years to get the matter to court, starting only in 2004 and ending in December 2009 with conviction and sentencing to an effective 15 years.
Dalindyebo applied unsuccessfully for a review of the matter, then filed an appeal.
But the case file disappeared, so the appeal wasn’t processed.
Dalindyebo has also repeatedly changed lawyers.
In June last year, the Mthatha High Court ordered its own court registrar and the NPA to produce a record of the criminal trial proceedings and submit it to the SCA within 60 days.
In October, the Mthatha High Court registrar sent the record to the SCA.
The SCA registrar then tried to contact Dalindyebo or his lawyers, but failed.
In June this year, the SCA registrar returned the record to the Mthatha registrar.
Last Wednesday, the Mthatha registrar told the Mthatha DPP that the appeal had lapsed.
On the political front, the AbaThembu royal family have been lobbying since 2012 to remove Dalindyebo as king.
They wrote to President Jacob Zuma in October 2012 and February last year, asking the president to finalise this.
On July 25, Zuma’s office said he had written to Dalindyebo, giving him 30 days to “make representations as to why the certificate of recognition as the king of the AbaThembu people should not be withdrawn from him, in line with the request from the AbaThembu royal family”.
On Monday, Dalindyebo’s spokesman, Nkosi Bovulengwe Mtirara, said it was the first he’d heard of the appeal lapsing, and that they would apply for condonation of late filing.
Mtirara said it was decided at a meeting on Sunday to discuss Zuma’s letter to Dalindyebo to write to the president requesting his response by August 11, failing which they would challenge the impending removal in court. “Definitely we are objecting, we are not going to allow that,” said Mtirara.
The AbaThembu group calling for Dalindyebo’s removal say they are the Great House and entitled to do this. Mtirara says they are a faction in the Great House.
The king’s crimes:
In sentencing the case that led to Dalindyebo’s conviction in 2009, Judge Sytze Alkema called it one of the worst cases of assault, watched by the community and victims’ families.
“The three victims were undressed; their hands tied between their backs; they were prostrated on the floor; they were assaulted over a period of two hours; their assailants assaulted them by using sjamboks; they were made to ‘frog-jump’ while the accused was whipping their feet; when the accused got tired, he instructed other people to continue with the flogging ‘until they screamed’; the whipping caused their skin to open and caused permanent scarring, and the assault continued until the ‘hut smelled of blood’,” said the judge.
One victim became mentally deranged after this assault. “The assaults were cruel, humiliating and degrading,” said the judge.
Dalindyebo had said he was disciplining them in his capacity as king.
“Even assuming they were guilty of the alleged offences, the accused had no legal right or jurisdiction to punish them in respect of the alleged crimes,” said the judge.
The culpable homicide conviction related to the death of Saziso Wofa, who was similarly assaulted on Dalindyebo’s instructions and died; Dalindyebo initially suggested that his body be thrown in the river, then allowed it to be handed to his family, but ordered his subjects not to tell the authorities of the death.
The judge said the king “escaped a conviction of murder by a hair’s breadth”.
The arson conviction related to burning down the homes of three families. This, the judge said, had also left six children, including a baby, homeless, and left the families traumatised.
The kidnapping conviction related to the kidnapping for a day of one of the families – a woman and six children – in order to force her husband to go to Dalindyebo’s Great Place (his official homestead) to pay fines to the king.
The court was told that Dalindyebo had a Grade 10 education, earned R44 000 a month as king, had ruled since 1992 and was 30 at the time of the offences.
He was a first offender, but the judge said he had “shown no remorse whatsoever. On the contrary, he creates the impression that he seriously believes that he did no wrong” and that his chances of rehabilitation seemed “remote”.