"Kgafela is only a ceremonial Kgosi" - State

GREG KELEBONYE
Staff Writer | Wednesday January 26, 2011 00:00

 

The High Court will pass judgement on March 11 in the case in which the Bakgatla Kgosikgolo and 14 of his subjects are appealing against the decision of a lower court that denied them permission to seek a hearing at the higher court. Kgafela, his brother Mmusi, Deputy Chief Bana Sekai and 12 others, approached the High Court last year to contest the decision of the trial magistrate, Barnabas Nyamadzabo, who ruled against their request for the criminal matter against Kgafela and his subjects to be referred to the High Court because the matter raised constitutional issues.

They believe that continuing without a High Court interpretation of the issues would deny them their constitutional rights. Representing the Bakgatla Kgosikgolo and his tribesmen, Senior Counsel Martin Brassey, acting on instruction from Unity Dow, argued that the lower court acted ultra vires by determining issues of constitutional interpretation, which should be the forte of the High Court.

The issues in point are:

whether 'go kgwathisa' or flogging constitutes a crime and therefore neither a part of Setswana culture nor Sekgatla, or whether 'go kgwathisa' is an offence when carried out in terms of customary law; that is whether the Kgosikgolo has the right to enforce corporal punishment in his jurisdiction and the nature and 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 duty.

Brassey argued that from time immemorial Batswana have always had customary law that recognised the Kgosi's power to administer rules and see to their enforcement. That power allowed the Kgosi to administer corporal punishment upon disobedient members of his tribe. And the constitution, at the time it was drawn-up, together with other written statutes, did not take away the power of the Kgosi.

'That process remains in force...The Customary Courts Act codified the customary law as it existed before...The Customary Court Act is designed to enhance the powers of the Kgosi,' he said. Brassey argued that contrary to the state's 'inflamed assertion that 'you can't have someone like a Chief going around beating people all over the place'', they were not contesting for Kgafela to go about 'beating people all over the place', but for corporal punishment to be recognised as a sanction, provided it is administered reasonably and after due process. Brassey argued that Kgafela and his brother Mmusi should, respectively as Kgosikgolo and Kgosi, enjoy immunity from prosecution for acts carried out in good faith in their jurisdiction.

Further he argued that others appearing with Kgafela should equally enjoy immunity from prosecution as they acted under lawful instruction of the Kgosikgolo or his deputy. He also argued that the court needed to rule on whether Kgafela, his brother and deputy, Sekai's conduct constitutes lawful exercise, is a matter for evidence. 

Similarly, it would have to be determined if the conduct of the tribesmen who acted under the authority of the Dikgosi constitutes a matter for evidence.  In closing, he asked the court to refer the matter back to the Magistrates Court for trial, but that Magistrate Nymadzabo recuse himself because he already is privy to the evidence which he in any case considered before. He asked that a different magistrate preside over the case.

However, arguing for the State, Chief State Counsel Susan Mangori, argued that the matter before the court was without merit, because in their application for the matter to be referred to the High Court, the appellants failed to indicate which provision of the constitution was violated and which item required constitutional interpretation by the High Court.  However, she submitted that what the lower court found was that the issues that the appellants raised in their 'notice of a motion' as constitutional questions are issues adequately covered by legal authorities and statutes.

She argued that in administering corporal punishment, Kgafela and his men violated the provisions of Section 28 of the Penal Code which stipulates the procedure for administration of corporal punishment. Furthermore, she argued that while the law recognises corporal punishment, it does not authorise every person to impose and administer it because due process has first to be followed.

'Corporal punishment, by its very nature, as a form of punishment, can only be lawfully imposed by a judicial officer,' she said, adding that Kgafela is not clothed with judicial powers as he abdicated his power to a regent - Mothibe Linchwe - and can therefore not lawfully impose corporal punishment.

'[Kgafela] does not perform the functions of Kgosi and is therefore not a judicial officer,' she said.  Thus, she said, Kgafela's actions were improper and unlawful. Kgafela, she argued, is only a ceremonial Kgosi and is not authorised in terms of the law to adjudicate any alleged offences or misdemeanours. She said even assuming that customary law authorised Kgafela to mete out corporal punishment without trial of the suspect, such a law would be in conflict with the constitution and therefore unlawful.

Mangori submitted that Kgafela's actions do not fall within the definition of customary law and that as such they are unlawful. Equally, she said Kgafela and his brother could not claim immunity because they were not acting as judicial officers. Even Kgosi Sekai, although a judicial officer, would find his defence 'brittle' as due process was not followed.  Thus, she submitted that the appeal is without merit and should be dismissed and the trial ordered to proceed without delay.  A panel of three judges - the Chief Justice Maruping Dibotelo, Justices Isaac Lesetedi and  Modiri Letsididi heard the appeal.