Court finds Kgafela's application 'frivolous'

ISAIAH MOREWAGAE
Staff Writer | Wednesday October 27, 2010 00:00

 

It is the second time Nyamadzabo dismisses an application, having done that last week when representatives of the Bakgatla chieftaincy wanted the court proceedings to be held in Mochudi.

 The case involves Kgosi Kgafela II, his brother Mmusi Kgafela, Bakgatla Deputy Chief, Bana Sekai, and 11 members of regiments who are facing five counts of assault occasioning bodily harm.

The defence team led by the former High Court judge, Unity Dow, had appealed to Nyamadzabo to refer their case to the High Court as there are constitutional issues that will be raised.

The defence said the constitutional issues were whether corporal punishment 'go kgwathisa' is covered under customary law and whether the Kgosikgolo has the right to enforce corporal punishment in his jurisdiction.Another constitutional issue that arises is the nature and the extent of powers of Kgosikgolo or kgosi and whether the kgosikgolo or kgosi are protected under the law for crimes they allegedly committed in the course of their duty.

In his ruling, Nyamadzabo found that there is no need for the case to be referred to the High Court as the questions defence asked can be answered by the existing statutes.

Nyamadzabo said it has never been a contention by the Directorate of Public Prosecution (DPP) that the customary law is bad or that corporal punishment is unlawful.

'They would have not succeeded even if they tried because others statutes are clear on the legality of corporal punishment,' Nyamadzabo said.

However, Nyamadzabo said the manner in which the punishment was applied is contentious.

He stressed that punishment is lawful if it is preceded by a process of fact finding or trial. Nyamadzabo said the constitution provides that every person has the right to be heard which is a core principle recognised in the international standards. He said the punishment should be done within the context of the constitution, bill of rights and the international set standards.

Nyamadzabo said the powers of the Kgosikgolo or kgosi do not require the High Court, as they are clearly defined in the Bogosi Act and other relevant statutes. He added that as a creature of statute, no one should go beyond his or her powers.

'Any individual with powers should exercise such powers within the context of the statutes and the constitution,' Nyamadzabo said.

He dismissed the case saying that it would be a waste of the court's time if the case were to be referred to the High Court.

He concluded that the application was frivolous and vexatious hence it failed the test. Nyamadzabo will make another ruling today on whether Kgafela and his co-accused continue to enjoy their freedom.

The state prayed with Nyamadzabo to remand the accused or give them bail conditions. One of the conditions, the state submits, should be that the accused stop floggings that are happening in the Kgatleng district.