THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

CASE NO: 090/2015
Reportable

In the matter between:
BUYELEKHAYA DALINDYEBO

APPELLANT

and

THE STATE

RESPONDENT

Neutral Citation:
Dalindyebo v S (090/2015) [2015] ZASCA 144 (1 October 2015).
Coram:
Navsa, Ponnan, Saldulker and Mathopo JJA and Baartman AJA
Heard:

21 August 2015
Delivered:

1 October 2015
Summary:

Fair trial rights – complaint concerning delay in prosecution – held
that largely due to conduct of appellant himself – complaint concerning inadequacy of
legal representation rejected – accusation that trial judge acted irregularly by
descending into the arena calling into question his impartiality unfounded – King, in

dealing with his subjects, committing criminal acts – actions deplored – setting fire to the
houses of his subjects and severely assaulting young men alleged to have committed
criminal acts – had it not been for medical intervention they would probably have died –
defence that appellant could not be convicted of arson because the land on which the
subjects lived belonged to him and the structures he had set fire to had acceded to the
land rejected – a person could be guilty of arson if he sets fire to his own immovable
property with the intent to injure another – appellant guilty of arson, kidnapping, assault
with intent to do grievous bodily harm and defeating the course of justice – appeal in
respect of severity of sentence dismissed – appellant held to be fortunate in not having
had a lengthier sentence of imprisonment imposed.

______________________________________________________________________
ORDER
______________________________________________________________________

On appeal from: The Eastern Cape High Court, Mthatha (Alkema J sitting as court of
first instance).

The following order is made:

(a). Save in relation to the conviction of culpable homicide and the consequent
sentence, the appeal is dismissed.
(b). The conviction of culpable homicide and the sentence of ten years‟
imprisonment imposed in respect of that conviction are set aside.
(c). The order by the court below in relation to sentence is substituted as follows:
„1. In respect of the arson charges, namely Counts 1, 14 and 15, the accused is
sentenced to FIVE (5) YEARS IMPRISONMENT in respect of each count.
2. In respect of the kidnapping charges, namely counts 5, 6, 7, 8, 9, 10 and 11,
which is taken as one count, the accused is sentenced to ONE (1) YEAR
IMPRISONMENT.

3. In respect of the charge relating to defeating the ends of justice by unduly
influencing Mr Stokwana Sonteya to withdraw the arson charges, the accused is
sentenced to ONE (1) YEAR IMPRISONMENT.
4. All the sentences referred to in paragraphs 1, 2 and 3 above shall run
concurrently with each other, resulting in an effective sentence of FIVE (5) YEARS
IMPRISONMENT in respect of all the aforesaid charges.
5. In respect of the assault charges, namely Counts 24, 26 and 28 the accused is
sentenced to FIVE (5) YEARS IMPRISONMENT in respect of each count.
6. The sentences of five (5) years in respect of the aforesaid assault charges shall
run concurrently with each other.
7. In respect of the charge relating to defeating the ends of justice by concealing the
death of Saziso Wofa, the accused is sentenced to TWO (2) YEARS
IMPRISONMENT.
8. The accused is thus sentenced to an effective term of TWELVE (12) YEARS
IMPRISONMENT.‟

______________________________________________________________________

JUDGMENT
______________________________________________________________________
Navsa JA and Baartman AJA (Ponnan, Saldulker and Mathopo JJA concurring):

Introduction
[1] Imagine a tyrannical and despotic king who set fire to the houses, crops and
livestock of subsistence farmers living within his jurisdiction, in full view of their families,
because they resisted his attempts to have them evicted, or otherwise did not
immediately comply with his orders. Imagine the king physically assaulting three young
men so severely that even his henchmen could not bear to watch. Imagine the same
king kidnapping the wife and children of a subject he considered to be a dissident in
order to bend the latter to his will. Consider that the king in question delivered the body
of a subject, killed by his supporters, to a bereaved father, ordering the latter not to even

consider reporting the truth concerning the circumstances of his death to any authority
and then fining the father of the deceased ten head of cattle because, so the King
alleged, the son had brought shame to the Kingdom. If the State is to be believed, this is
not a description of what occurred during medieval times but it is how the appellant,
King Buyelekhaya Dalindyebo, treated his subjects at a time after South Africa became
a Constitutional State subject to the rule of law. The appellant, on the other hand, would
have this court accept that he was a caring and compassionate king who acted in the
best interests of his subjects, in accordance with customary law and that his behaviour
was beyond reproach. This appeal will determine which of the competing contentions
prevail.

The convictions and sentences in the court below
[2] In the court below and before us the State‟s case against the appellant was as
follows. The appellant, the Paramount Chief of the AbaThembu1 in the Eastern Cape,
who is also referred to as the King of that tribe, set fire to dwellings that housed three
complainants, who were his „subjects‟ and tenants, to secure their eviction when he
considered that they had breached tribal rules. In all three instances the families of the
people concerned looked on as their homes were set on fire. In that regard the
appellant was charged with three counts of arson. The King was also alleged to have
publicly assaulted three young men so brutally that some of the people present could
not bear to continue to observe and had it not been for later medical intervention they
might very well have died. The assaults were perpetrated, so the State contended, as
punishment, without a trial, for criminal acts allegedly committed by the young men in
question, being, inter alia, housebreaking and rape. It is common cause that one of the
young men, Mr Lunga Pama, subsequently became mentally impaired. It is uncertain
whether the impairment was caused by the assaults. In respect of the alleged assaults
the appellant was charged with 3 counts of attempted murder and was convicted of the
lesser offence of assault with intent to do grievous bodily harm. A fourth young man,
who was alleged to have been party to the alleged crimes referred to above, was killed

1 As recorded by the court below, the appellant derived his powers, duties and functions from the
Transkei Authorities Act 4 of 1965 and his area of jurisdiction is regulated by the Black Administration Act
38 of 1927.

by members of the community who were supporters of and loyal to the appellant. The
State contended that the assaults that led to the death of the fourth young man were
perpetrated pursuant to the instructions of the King that he should be assaulted. In
respect of this occurrence the appellant was charged with murder. The court below,
however, found him guilty of culpable homicide. The appellant, so the State alleged,
threatened and intimidated the father of the young man who was killed and in so doing
sought to prevent criminal charges being laid in relation to the killing. The State also
alleged that the appellant was guilty of acting with intent to defeat the course of justice
by unduly influencing one of the complainants in the arson charge to withdraw the
charge. These charges were brought under s 40(a) of the Transkei Penal Code Act 9 of
1983 (Transkei) (TPA) which reads as follows:
„40. Any person who –

(a) . . .  does anything to obstruct, prevent, pervert or defeat the course of justice; or
. . .
shall be guilty of an offence. . . .‟
On these two counts the appellant was convicted as charged. The appellant also faced
seven counts of kidnapping. The State‟s case was that the appellant had deprived the
wife and six children of one of his subjects of their liberty by forcing them to accompany
him to the equivalent of a palace, „The Great Place‟, in order to induce the husband and
father to present himself there. The court below convicted the appellant of one count of
kidnapping, notwithstanding that it accepted that he had deprived all seven individuals
of their liberty in the manner described above.

[3] Thus, save for the charge of murder (on which the appellant was convicted of
culpable homicide) and the seven counts of kidnapping, which were treated as one, the
appellant was otherwise convicted of the following offences and sentenced as set out
hereafter:
„1. In respect of the arson charges, namely Counts 1, 14 and 15, the accused is sentenced to
FIVE (5) YEARS IMPRISONMENT in respect of each count.
2. In respect of the kidnapping charge, namely counts 5, 6, 7, 8, 9, 10 and 11, which is taken as
one count, the accused is sentenced to ONE (1) YEAR IMPRISONMENT.

3. In respect of the charge relating to defeating the ends of justice by unduly influencing Mr
Stokwana Sonteya to withdraw the arson charges, the accused is sentenced to ONE (1) YEAR
IMPRISONMENT.
4. All the sentences referred to in paragraphs 1, 2 and 3 above shall run concurrently with each
other, resulting in an effective sentence of FIVE (5) YEARS IMPRISONMENT in respect of all
the aforesaid charges.
5. In respect of the assault charges, namely Counts 24, 26 and 28 the accused is sentenced to
FIVE (5) YEARS IMPRISONMENT in respect of each count.
6. The sentences of five (5) years in respect of the aforesaid assault charges shall run
concurrently with each other.
7. In respect of the culpable homicide charge, namely Count 31, the accused is sentenced to
TEN (10) YEARS IMPRISONMENT.
8. In respect of the charge relating to defeating the ends of justice by concealing the death of
Saziso Wofa, the accused is sentenced to TWO (2) YEARS IMPRISONMENT.
9. The sentence of two years imprisonment referred to in paragraph 8, shall run concurrently
with the sentence of 10 years under the culpable homicide charge mentioned in paragraph 7.
10. It is ordered that five (5) of the ten (10) years imprisonment in respect of the culpable
homicide charge mentioned in paragraph 7, shall run concurrently with the five (5) years
imprisonment in respect of the assault charges.
11. The result of what I have said above is effectively the accused is sentenced to FIFTEEN
(15) YEARS IMPRISONMENT.‟

Reservation of questions of law
[4] The appellant appeals against the aforesaid convictions and related sentences
with the leave of the court below. In addition, in terms of s 319 of the Criminal
Procedure Act 51 of 1977 (the CPA) and at the instance of the State, certain questions
of law were reserved by the court below. That, however, was not persisted with by the
State on appeal.

The issues
[5] Before us, at the outset, the appellant challenged his convictions on the basis
that his trial was unfair. He contended that because his trial had commenced
approximately 8 years after the events on which his convictions were based, he was

hampered in his ability to adduce and challenge evidence and asserted that this was in
violation of his constitutional right to a speedy trial in terms of s 35(3) of the Constitution.
The appellant also seemingly challenged the fairness of his trial on the basis that the
many legal representatives that appeared on his behalf during the almost 5 years that it
endured, failed to represent him competently and effectively. In this regard, he
contended that they failed to challenge witnesses when they were supposed to. The
appellant also accused Alkema J in the court below of unjustifiably descending into the
arena with persistent questioning that amounted to repeated irregularities vitiating the
trial. The prosecutor was also accused of cross-examining on bases that were factually
incorrect and which, it was submitted on behalf of the appellant, ought to have been
prevented by the court below.

[6] Furthermore, the appellant challenged the merits of his conviction. In relation to
his convictions on the charges of arson, his principal defence was that the two houses
he had admitted to setting on fire were his property and he could therefore not rightly
have been convicted of arson. It is necessary to note that in respect of those two
charges there was no dispute that the appellant had set fire to the houses concerned
either directly, or by way of instructions to others. We pause to state that the charges of
arson, because of the geographical location were brought in terms of the TPA. Before
us the propriety of that course being followed was unchallenged.2 In respect of the
remaining charge of arson the appellant denied any involvement at all. In convicting him
of the three charges of arson, Alkema J invoked the right to housing as set out in s 26 of
the Constitution. It was contended on behalf of the appellant that the learned judge
erred in doing so and consequently erred in convicting the appellant of arson.

[7] In challenging his conviction on the three counts of assault, the appellant
contended that the court below had failed to take into account that in inflicting what he
considered to be „light lashes‟, he meant not to act in concert with his supporters who
had already severely beaten the three young men who were subjected to the assaults,
but had meant to avoid them being assaulted any further by his supporters. In respect of

2 This was so because, in essence, it equated with the common law definition of arson.

his convictions on the counts of defeating the ends of justice, he contended that there
had been insufficient evidence to justify the conclusions of the court below. Similarly, it
was submitted that the evidence in relation to the kidnapping charges was wanting. In
respect of his conviction of culpable homicide, the appellant contended that there was
no evidence linking him to the actions of his subjects and/or supporters, who, it is
common cause, had severely beaten the young man who had died as a result thereof.
In respect of the sentences referred to above, the appellant‟s case was that they were
shockingly disproportionate.

Fair trial rights – delay in prosecution
[8] First we turn to deal with the appellant‟s contention that, because of the lapse of
time between the events and the commencement of proceedings in the court below, his
trial was unfair. It is true that our Constitution dictates that criminal trials should begin
and conclude without unreasonable delay. Section 35(3)(d) provides:
„3. Every accused person has a right to a fair trial, which includes the right –
. . .
(d) to have their trial begin and conclude without unreasonable delay.‟
In Sanderson v Attorney-General, Eastern Cape [1997] ZACC 18; 1998 (2) SA 38 (CC),
para 20, the Constitutional Court, in examining a similar provision in the interim
constitution, stated that „. . . a useful starting point is to establish why the right to a trial
within a reasonable time was included as one of the specifically enumerated elements
of a fair trial.‟ In para 23 the Constitutional Court considered that the enduring impact of
a prosecution process may well jeopardize or impair the benefits of the presumption of
innocence. Doubt will have been sown as to an accused‟s integrity in the eyes of his
family, friends and colleagues. In addition to the social prejudice an accused is also
subject to invasions of liberty that range from incarceration to onerous bail conditions to
repeated attendance at court. The right to a trial within a reasonable time, so the
Constitutional Court explained (para 24), „. . . also seeks to render the criminal justice
system more coherent and fair by mitigating the tension between the presumption of
innocence and the publicity of trial.‟ With reference to the American case of Barker v
Wingo, Warden 407 US 514 (1972) at 532. Kriegler J sets out in para 25 of Sanderson

how a court should determine whether a particular lapse of time is reasonable. He says
the following:
„[T]here is a „balancing test‟ in which the conduct of both the prosecution and the accused are
weighed and the following considerations examined: the length of the delay; the reason the
Government assigns to justify the delay; the accused‟s assertion of his right to a speedy trial;
and prejudice to the accused.‟

[9] In drawing comparisons with foreign jurisdictions, the Constitutional Court in
Sanderson (para 26) took note of the fact that the vast majority of South African
accused are unrepresented and have no conception of a right to a speedy trial. It was
also unrealistic not to recognise that the administration of our criminal justice system,
including law enforcement and correctional agencies, were under severe stress.

[10] We now examine the facts in relation to the delay in the appellant‟s prosecution
and we deal with the question of trial prejudice. We start by scrutinising in some detail,
the events preceding the commencement of the trial. On 27 June 1995, Mr Stokwana
Sonteya (Stokwana), laid a charge of arson against the appellant at the Bityi Police
station. He alleged that the appellant had set fire to his house. On 4 July 1995, the
appellant was arrested in respect of that charge and made a warning statement. On 28
July 1995, Mbuzeni Makhawenkwana (Mbuzeni) also laid a charge of arson against the
appellant at the Bityi Police station (the second arson charge). He alleged that the
appellant had set fire to his home on 20 July 1995, after removing his belongings and
leaving them scattered in the veld. This, according to Mbuzeni, was a form of
punishment because he had murdered someone on the King‟s land and according to
the King had thereby brought disgrace upon the kingdom. On 30 July 1995 the
appellant was arrested on that charge and made a warning statement in relation
thereto. On 1 August 1995 the appellant failed to attend court in relation to his
prosecution on the charge laid by Mbuzeni and the court consequently, on 14
September 1995, issued a warrant for his arrest. The evidence adduced on behalf of the
State proved that the appellant had employed various means to ensure that the charges
brought by Stokwana were withdrawn. Stokwana‟s evidence was that he had been
approached by Chief Zwelidumile, who was also subject to the King‟s authority and part

of the hierarchical chain of command, and pressured to withdraw the charges. The chief
asked Stokwana how he could even contemplate charging the King with criminal
conduct. Wayiya, was also approached by the Chief who sought to prevail on him to get
his brother, Stokwana, to withdraw the charges. As is becoming apparent from the
evidence of the principal witnesses on behalf of the State, far from seeking his day in
court, the appellant was doing his utmost to avoid it and in this regard was relying on a
royal prerogative. On 10 August 1995, succumbing to the pressure, Stokwana and
Wayiya withdrew the charges. It should be borne in mind that, at this stage, the King
had set fire to Stokwana‟s house. Stokwana and his brother testified that they
succumbed to the pressure because they wanted to avoid further ills being visited upon
them by the King.

[11] In relation to the charge of the murder of Mr Saziso Wofa (the deceased) in
respect of which, as described above, the appellant was convicted of culpable homicide,
the following timeline is relevant. On 27 January 1996 the deceased, who was then 18-
years old, died after he had been severely and brutally assaulted by members of the
community who were also supporters of the King. According to witnesses for the State,
the appellant was notified about his death and arranged for the body to be delivered to
the deceased‟s father. The appellant accompanied the body and others to the
deceased‟s father‟s homestead. There he instructed the father to make arrangements
for a burial and ordered him to tell staff at the mortuary that his son had died of natural
causes. According to the deceased‟s father, Mr Koto Wofa (Wofa), he was also warned
not to report the matter to the police. Wofa testified that he complied with the appellant‟s
order to present himself at the „Great Place‟ that same afternoon. When he did, the
appellant ordered him to pay a fine of ten head of cattle because of the disgrace his son
had brought upon the King‟s land by associating himself with the criminal acts of the
other three young men who had been assaulted as described above. If Wofa and the
State witnesses are to be believed in relation to the events described above, then what
is clear is a pattern of intimidation by the appellant to avoid having to deal with the legal
consequences of his actions. Inspector Nelson Tobias Hakula (Hakula), branch
commander at Bityi police station, had heard rumours about the deceased‟s death and

the assaults perpetrated on people who resided on the farm over which the appellant
had jurisdiction and decided to investigate the matter. He paid Wofa a visit and
subsequently, on 8 February 1996, obtained an exhumation order. The deceased‟s
body was exhumed and an autopsy was performed. On 10 February 1996 Hakula
caused a warrant for the appellant‟s arrest to be issued in relation to the murder of the
deceased.

[12] On 1 May 1997, a date scheduled for the trial of the appellant in respect of the
arson charge related to Mbuzeni‟s house, the appellant failed to appear in court. Instead
of following the normal course of having a warrant issued for his arrest, the prosecution
elected to withdraw charges. A number of witnesses, including members of the South
African Police Services (SAPS), testified that the appellant was an influential figure and
that senior police officials had intervened to ensure that he would not be prosecuted. At
this stage it is necessary to record that, at the relevant time, not only was the appellant
King of the AbaThembu, but he was also a member of the Provincial Legislature.
Mbuzeni‟s evidence on why he did not pursue the arson charge is as follows:
„My Lord I abandoned that case as far as I know that was the end of the case, because I not
was getting any assistance from the police.‟
It is common cause that, subsequent to the events described above, the appellant‟s
subjects were becoming increasingly unhappy about his reign and the manner in which
he treated them and ultimately led protests against him.

[13] The charges referred to above were only reinstated as a result of pressures
being brought to bear by way of a complaint lodged with the Human Rights Commission
by Mbuzeni from prison, where he was incarcerated because of his conviction in relation
to the murder referred to earlier in this judgment and a complaint, apparently by way of
a letter sent to the National Police Commissioner by one of the appellant‟s chiefs, Chief
Jonginyaniso Mtitara. The existence of the letter was not seriously challenged in cross-
examination. In January 2003, by directive of the National Commissioner, detective
inspector Alfred Madolo, stationed at Tembisa in the North Rand started to re-
investigate the charges and the events referred to above. The charges that had been

brought earlier must have been reinstated prior to the appellant‟s appearance in the
court below on 8 November 2004 with further related charges added. We have no
hesitation in accepting the evidence of the witnesses on behalf of the State in relation to
the reasons for the delay in the appellant‟s prosecution. The complainants were
justifiably terrified of the appellant. Even when they were desperate enough to report
matters to the police they were met with the negative force of his influence and were
pressurised into withdrawing whatever action they had taken to initiate a prosecution.
We pause to record that Wayiya did not lay any charges nor did the father of the
deceased. They were too terrified to do so.

[14] In the present case it is so that years passed between the commission of the
alleged offences and the commencement of the appellant‟s trial. Much, if not all of that
delay was caused by the appellant being obstructive and employing dubious means to
thwart the administration of justice, including the intimidation of complainants. Pressure
had to be brought to bear by the community for the prosecution to be reinstated.

[15] Having done all he could to avoid facing prosecution, the appellant attempted to
turn his vice into a virtue. Very early on in his trial his counsel noted that he was now
faced with the difficulty of fading memory and the possible loss of documentation. He
also asserted that at least two crucial witnesses had died in the interim. He did not
indicate who those witnesses were. Much later, whilst the appellant was testifying and
under re-examination, he increased the number of witnesses who could have testified in
support of his case to six potential witnesses, who, he informed the court, had all
passed away. The first person he named he described as being his „eye on the farm‟. It
is necessary, at this stage, to record that the farm, Tyalara, is where „The Great Place‟
is located and is registered in the appellant‟s name. Tyalara is also the place where all
the events on which the charges were based took place. The appellant named the other
persons who had died but did not say on what aspects of the State‟s case or his
defence he required their testimony.

[16] The only reference by the appellant to documentation that might have been lost,
potentially causing him prejudice in his defence, was to occurrence book entries. Once
again we were not told in what respect they were relevant and how they might have
assisted the appellant in his defence.

[17] It is to be noted that a number of witnesses who testified on behalf of the State,
to whom reference will be made later in this judgment, were witnesses tendered in
terms of s 204 of the CPA, 3 many of whom had been loyal to the appellant. It also
appears that a number of witnesses to the events that formed the subject of the charges
faced by the appellant continued to reside on the farm and were available to both the
prosecution and the appellant at the time of his trial. The appellant testified that he had
made attempts to talk to potential witnesses. Some had said that they did not recall the
events of that time, and others that they did not want to become involved. Importantly,
the appellant admittedly himself played a central role in the events in relation to which
he had been charged. The events were dramatic and were such that they would leave a
permanent impression. In any event the record extends to over 3000 pages and scrutiny
of it reveals that a vigorous defence was mounted and that the State witnesses were
subjected to lengthy cross-examination. Loss of memory did not appear to impact on
the appellant‟s defence. We could detect no prejudice.

[18] Significantly, the appellant‟s dilatory and obstructive behaviour continued after
the commencement of his trial. He had successive and multiple legal representatives
and, at one stage, elected to represent himself. It is clear from the record that he
contributed in large part to the trial lasting almost five years. Exhibit „DD‟ contained in
the record lists trial postponements at the instance of the accused. They comprise a
total of at least 34 postponements.

3 Section 204 provides that when the prosecution calls a witness who will be required to answer questions
which may incriminate him or her with regard to an offence specified by the prosecutor, the court shall
inform the witness that he is obliged to give evidence, that questions may be put to him/her with regard to
the specified offence, that he/she will be obliged to answer any question notwithstanding that the answer
may incriminate him or her and that, if he/she answer frankly and honestly all questions put to him/her,
he/she shall be discharged from prosecution with regard to the offences specified or with regard to any
offence in respect of which a verdict of guilty would be competent.

[19] To our minds, it is clear that the appellant had no interest in his trial being
finalised. On the contrary, from the onset he attempted to avoid being prosecuted and
thereafter focused on obstructing the finalisation of his trial. Insofar as his liberty is
concerned, except for the briefest period of incarceration soon after the occurrence of
the events in question, he has had the benefit of being freed on bail.

[20] In respect of alleged trial prejudice, it is to be noted that the witnesses on behalf
of the State were cross-examined at length. Other than the ipse dixit of his legal
representative referred to above, we could, despite our best efforts, not detect any
hindrance or prejudice to the appellant in the conduct of his defence. Furthermore, even
though threatening to call witnesses who, on his own and the State‟s version of events,
were crucial to his defence, for example his sister, he did not do so. In our view, trial
delay leading to an unfair trial, as the appellant‟s defence is entirely without merit.

[21] To sum up, the delay in the appellant‟s prosecution was caused largely by his
own bad behaviour, including the fear he induced in his subjects and the influence he
wielded in his area of jurisdiction. Insofar as prejudice is concerned, we could detect
none.

The complaint that appellant was not competently represented during the trial
[22] We now turn to deal with the appellant‟s complaint that he was not competently
and effectively represented. In S v Tandwa & others [2007] ZASCA 34; 2008 (1) SACR
613 (SCA) this court dealt with the constitutional right to be legally represented during a
criminal trial and reiterated that the right to legal representation meant that it should be
real and not illusory and that this translated into the right to a proper, effective and
competent defence.4 It said the following (para 7):
„Incompetent lawyering can wreck a trial, thus violating the accused‟s fair trial right. The right to
legal representation therefore means a right to competent representation – representation of a
quality and nature that ensures that the trial is indeed fair. When an accused therefore

4 See para 7 et seq.

complains about the quality of legal representation, the focus is no longer, as before the
Constitution, only on the nature of the mandate the accused conferred on his legal
representative, or only on whether an irregularity occurred that vitiated the proceedings – the
inquiry is into the quality of the representation afforded.‟ (Footnotes omitted.)

[23] We now embark on that enquiry. The appellant employed no fewer than 11 legal
representatives. We have already made reference to the number of postponements
granted by the court below at his instance. From his interaction with the court when he
elected to represent himself and from his testimony it is clear that the appellant is no
shrinking violet. He was not averse to dispensing with the services of a legal
representative when he was unhappy with the manner in which his case was being
conducted and on occasion for no apparent reason. When he did conduct his own
defence he did not present as an unsophisticated litigant. Once again the appellant, in
resorting to this defence, is attempting to turn a vice into a virtue. Under cross-
examination the appellant repeatedly found himself in difficulty when counsel for the
State asked why important issues which he was now testifying about had not been put
by his legal representatives to witnesses who testified on behalf of the State. He
responded by stating that he had instructed his legal representatives to do so but that
they had failed him. These repeated responses led to one of his legal representatives
requesting the court to release him from further representing the appellant. Given the
appellant‟s strength of character and his very active and vigorous involvement in his
own defence, it is highly doubtful that counsel would have acted without or contrary to
his instructions, whilst he maintained a stoic silence. When, later in this judgment we
deal with the credibility of witnesses, including the appellant‟s testimony, we will show
that he was not averse to being economical with the truth. As stated in the preceding
paragraph, a vigorous and extensive defence was mounted on behalf of the appellant.
Cross-examination was extensive and such legal arguments as were required to be
made as to the admissibility of evidence or in relation to any other issue appears to
have been dealt with thoroughly and ably. This includes submissions that were made in
relation to an application for a discharge at the end of the State‟s case in terms of s 174

of the CPA. As in Tandwa we find the appellant‟s complaint concerning the quality of his
legal representation to be devoid of substance.

The complaint concerning the prosecutor
[24] In written heads of argument on behalf of the appellant, a number of instances
were provided which it was submitted demonstrated that the prosecutor unfairly put
questions in cross-examination which were factually incorrect and that Alkema J
wrongly allowed. As pointed out on behalf of the State, at the relevant times the
appellant was legally represented and the legal representatives were entitled to object
and did. A running record was available and each party was entitled to refer to it and
did. In any event, this complaint is unjustified. The State‟s version of events was put to a
number of witnesses as, for example, that the community was terrified of the appellant.
That differs from the appellant‟s perspective which is that he was kind and
compassionate. This does not mean that the prosecutor was precluded from putting that
view based on his assessment of the evidence presented by the State. This is one of
the aspects on which the prosecutor is criticised. Another instance provided on behalf of
the appellant is that the prosecutor put to witnesses that at material times the appellant
was the paramount Chief when, in fact, his brother had been acting in his stead. The
appellant was a member of the Eastern Cape Provincial Legislature and was away for
extended periods but did return during weekends when he assumed the ultimate
authority on Tyalara. We do not intend to deal any further with each instance referred to
on behalf of the appellant save to state that this complaint is unfounded.

The complaint that the trial judge unjustifiably descended into the arena
rendering the trial unfair
[25] We now address the appellant‟s complaint that Alkema J repeatedly and
unjustifiably descended into the arena thereby rendering his trial unfair. In S v Rall 1982
(1) SA 828 (A) at 831A-F this court said the following:
„First, some general observations.
According to the well-known dictum of Curlewis JA in R v Hepworth 1928 AD 265 at 277, which
the learned Judge a quo obviously had in mind in his remarks quoted above:

“A criminal trial is not a game . . . and a Judge‟s position . . . is not merely that of an
umpire to see that the rules of the game are observed by both sides. A Judge is an
administrator of justice, he is not merely a figure-head, he has not only to direct and control the
proceedings according to recognised rules of procedure but to see that justice is done.”
Inter alia a Judge is therefore entitled and often obliged in the interests of justice to put such
additional questions to witnesses, including the accused, as seem to him desirable in order to
elicit or elucidate the truth more fully in respect of relevant aspects of the case. (Wigmore on
Evidence 3rd ed vol 3 para 784 at 151-2.) And for that purpose, according to the learned author
(ibid at 159), he may put the questions in a leading form –
“simply because the reason for the prohibition of leading questions has no application to
the relation between judge and witness.”
There the learned author differentiates that relation from the one between counsel and a
witness he calls. Counsel is prohibited from putting leading questions to his own witness
because of the risk that the witness may perhaps think that such questions are an invitation,
suggestion, or even instruction to him to answer them, not unbiasedly or truthfully, but in a way
that favours the party calling him. (Cf Wigmore para 769; R v Ngcobo 1925 AD 561 at 564; R v
A 1952 (3) SA 212 (A) at 222C-D.) Ordinarily that would not apply to leading questions put by
the Judge. Nevertheless, the putting of leading questions by a Judge should, I think, be subject
to the limitations about to be mentioned.‟
Later, in Rall, this court said the following (at 832C-E):
„A judge should also refrain from indulging in questioning witnesses or the accused in such a
way or to such an extent that it may preclude him from detachedly or objectively appreciating
and adjudicating upon the issues being fought out before him by the litigants. As Lord Greene
MR observed in Yuill v Yuill (1945) 1 All ER 183 (CA) at 189B, if he does indulge in such
questioning –
“he, so to speak, descends into the arena and is liable to have his vision clouded by the
dust of the conflict. Unconsciously he deprives himself of the advantage of calm and
dispassionate observation.”
(See, too, the Jones case supra [Jones v National Coal Board (1957) 2 All ER 155 (CA)] at
159C-E.) Or, as expressed by Wessels JA in Hamman v Moolman 1968 (4) SA 340 (A) at 344E,
the Judge may thereby deny himself –
“the full advantage usually enjoyed by the trial Judge who, as the person holding the
scale between the contending parties, is able to determine objectively and dispassionately, from
his position of relative detachment, the way the balance tilts.”‟

[26] The question presently being addressed is whether Alkema J breached any of
the canons of good judicial behaviour. In this regard several references were made on
behalf of the appellant in written heads of argument to the record of proceedings in
order to demonstrate how the trial judge improperly entered into the arena beyond what
is generally acceptable and how this supposedly impinged on the court‟s impartiality.
The first is a reference to Alkema J intervening when counsel was cross-examining
Stokwana‟s wife, Ms Nocingile Sonteya, about whether a statement to the police was
consistent with her evidence. We have taken great care to consider that part of the
record. In our view the judge was seeking to prevent unfair examination by pointing out
that a distinction which counsel at that stage sought to draw did not exist. The second
reference is to an instance when Wayiya was being cross-examined and was asked
whether his deceased wife would, in respect of a particular event, have reacted in the
same way as he would. Alkema J enquired of counsel whether Wayiya could rightfully
be expected to answer that question. It is preposterous that that enquiry should form the
basis of a complaint against Alkema J. The third instance complained of is where
Alkema J asked of the appellant, whilst he was testifying, whether he was acquainted
with legislation that regulated his position as head of his tribe and the administration of
the area over which he had jurisdiction. The fourth was when Alkema J sought to obtain
clarity from the appellant when he was testifying, about his evidence that the eviction by
way of the setting on fire of the dwelling of Stokwana was at the instance of the
community. We are at a loss to understand why these two instances form part of the
complaint against Alkema J. We do not intend to deal with every instance referred to.
Alkema J did indeed engage with witnesses, including the appellant, on a number of
occasions. This was perfectly understandable, particularly since he was presiding over
a trial that endured for many years and was attempting to keep abreast of the evidence
adduced by scores of witnesses and to ensure that he maintained a grasp of the issues
in dispute. If anything, Alkema J was extremely patient and indulgent throughout the
trial. He took great care to ensure the appellant was legally represented. He erred on
the side of caution by granting the appellant a great number of postponements in the

face of an obvious sense of frustration on the part of the State. The record proves that
the learned judge‟s interventions were not tainted by any impropriety.

Synopsis of the evidence in relation to the arson and kidnapping charges
[27] In the present case, the trouble that ultimately led to the appellant‟s conviction on
some of the charges referred to above, started with Stokwana‟s encounters with his
monarch. The first event was that 170 of Stokwana‟s goats and approximately 80 of his
sheep were impounded at the instance of the appellant on the basis that they had
strayed beyond their normal grazing area and had wondered onto restricted areas
which had been cordoned off to enable them to recover from the previous years‟
grazing. Stokwana denied this but in any event decided to start paying off the fine that
had been imposed by the appellant to enable the release of his impounded stock. He
paid R400 towards their release but still owed a substantial amount of money. His stock
was released to him on the understanding that the balance owing in respect of a fine
imposed by the King would be paid. In the intervening period, Stokwana‟s horse was
impounded. According to him there was no justification for the horse being impounded,
but he nevertheless made the journey to the „Great Place‟ to pay the R20 release fee.
At the time that he paid the fine, there was, according to Stokwana, an unpleasant
exchange between himself and the appellant‟s sister which, he testified ended with her
hurling insults at him.

[28] Stokwana testified that he had unsuccessfully attempted to borrow money to pay
the balance of the fine. The State‟s case was that the delay in paying the fine as well as
the allegation that Stokwana had taken his horse from the „Great Place‟ by force
invoked the appellant‟s ire and caused him to lead a march on Stokwana‟s homestead.
According to the evidence of a number of State witnesses, including Stokwana‟s wife
and others who had previously been loyal to the appellant, the appellant accompanied
by a gaggle of his supporters arrived at the homestead and after ordering Mrs Sonteya
to remove the family‟s belongings from the house, set fire to the main hut as well as to
two others and to the kraal in which there were nine young lambs, including one that
had only two legs. Witnesses testified that, the appellant also set fire to a small field of

maize, which Stokwana and his family maintained as part of a larger garden.
Stokwana‟s wife testified that there was an amount of R200 hidden in a rafter of the
main hut which was destroyed due to the fire. The amount of R200 was money that had
been collected as part of the funds of a local crèche for which Stokwana acted as a
treasurer. The nine lambs had all perished due to the fire. The entire maize crop was
also lost.

[29] The appellant‟s version of events is that „the community‟ was incensed at
Stokwana‟s repeated grazing infringements and because he had failed to pay the
remainder of the fine imposed and had been defiant by failing to present himself at the
„Great Place‟ when instructed to do so by the appellant. The community therefore
decided to set fire to his homestead as a form of eviction. The appellant stated
unequivocally that he had identified with the community‟s decision to set fire to
Stokwana‟s homestead in order to compel his eviction. It was also undisputed that the
homes of all of the complainants in respect of each of the arson charges had in fact
been constructed by them using materials such as thatch and mud which were all
resourced from the farm.

[30] According to a number of State witnesses, including Stokwana‟s wife the
appellant had ordered the latter to accompany him to the „Great Place‟ after he had set
fire to the homestead. She had six very young children in attendance at the time, a
number of whom clung to her physically. Mrs Sonteya testified that, accompanied by her
children, she followed the appellant to the „Great Place‟ and that some time after they
had arrived there, the appellant told her that he had brought her along to compel her
husband to present himself there. Mrs Stokwana testified that she had no choice but to
follow the King because she feared him. The appellant, on the other hand, testified that
he had not kidnapped Mrs Stokwana and the children but had merely offered food and
shelter at the „Great Place‟ as an act of compassion.

[31] Stokwana had been in the fields on the farm when he was informed that the
appellant had set fire to his homestead. He borrowed a horse and rode towards his

home. He testified that he saw the flames and decided it best to report the matter to the
police. He laid a charge of arson at the Bityi police station. According to Stokwana, the
police advised him to spend two nights at the police station because they didn‟t have
transport and considered it safer for him to do so.

[32] Mrs Sonteya testified that they were released the day after they had been taken
to the „Great Place‟. Stokwana returned to his home with the police and he and his wife
individually made their way to her maiden home which also fell under the appellant‟s
jurisdiction as King of the tribe. They relocated only after obtaining permission from
Chief Zwelidumile. Stokwana testified that a short while after he had laid the charge
referred to above, Chief Zwelidumile instructed him to withdraw the charge. The Chief
appeared aghast that Stokwana had even contemplated laying a charge against the
appellant, their King.

[33] Wayiya testified that a sub-headman had approached him to persuade his
brother to withdraw the arson charges against the appellant. Wayiya and Stokwana both
testified that they discussed withdrawing the charge and had decided that it was in both
their interests to do so. They were keen to avoid further evils being perpetrated against
either or both of them. They attempted unsuccessfully to get the authorities to withdraw
the charge. Thereafter they presented themselves at the „Great Place‟ to ask the
appellant to accompany them so that they might collectively persuade the authorities to
withdraw the charge.

[34] On the same day that the charge was withdrawn Mbuzeni‟s house was set alight.
The appellant admits that he led a group of his supporters to Mbuzeni‟s homestead.
According to a number of witnesses who testified on behalf of the State, the group, on
its way to Mbuzeni‟s house, passed by a number of young boys playing football. The
appellant summoned them to Mbuzeni‟s house. Their slow response angered the
appellant who punished them by causing them to repeatedly perform „frog jumps‟.
Thereafter he instructed the boys to set fire to Mbuzeni‟s house. They followed the
instruction because they feared him. Mbuzeni‟s house was set on fire only after it had

been emptied of its contents, which was left in the veld on the appellant‟s instructions.
Mbuzeni‟s aged mother watched in horror as the house burnt to the ground.

[35] As he had testified in relation to the setting on fire of Stokwana‟s homestead, the
appellant stated that the community had decided to evict Mbuzeni by setting fire to his
house. The community decided upon this course of action because Mbuzeni had killed
someone he had suspected of being a witch and by doing so had brought disrepute to
the appellant‟s kingdom. The appellant testified that he was concerned about Mbuzeni
walking around Tyalara brandishing a firearm.

[36] It is common cause that at the time that Mbuzeni‟s house was set on fire he was
being prosecuted in respect of the murder of the person he had killed. It is also
unchallenged that at the time his house was set on fire, he was in employment in
Gauteng and was informed about that fact telephonically. Mbuzeni denied that he had
wandered through Tyalara wielding a firearm.

[37] Upon being informed that his house had been set on fire, Mbuzeni returned
home and accompanied by his brother presented himself at the „Great Place‟. There,
according to Mbuzeni, the appellant imposed a fine of six cattle for the former having
brought disgrace to Tyalara. The appellant ignored Mbuzeni‟s protestations about being
subjected to two forms of punishment, namely, whatever would ensue from the criminal
prosecution and the payment of six cattle to the appellant. Mbuzeni‟s clan was also
fined R50 per household. Mbuzeni did not pay the fine imposed upon him. His house
was set alight on the same day and at approximately the same time as Wayiya‟s house
which was in close proximity.

[38] As set out earlier, the appellant denied any involvement in the setting on fire of
Wayiya‟s house. Witnesses on behalf of the State testified that there had been a
meeting at the „Great Place‟ to discuss Mbuzeni‟s position, at the end of which an
announcement was made by the appellant that he would also evict Wayiya because he
was „hoarding‟ Stokwana‟s livestock on Tyalara.

[39] Wayiya testified that months after his house had been set on fire he encountered
the appellant who then admitted that he had set fire to the house, but said that he had
done so „by mistake‟ and made an offer to rebuild the house. The following exchange
between Wayiya and counsel on behalf of the appellant is worth noting:
'MR HOWSE: Right. Did he admit to you that he burnt your homestead?
WITNESS: I took it he was admitting when he said to me he was prepared to rebuild my
homestead.
MR HOWSE: So did you take it from that statement of his that it was an admission?
. . .
WITNESS: He called me.
MR HOWSE: Yes but I am just trying to get what he said to you. If I understand you now
correctly you say. All that he said to you is that he would help to rebuild your home, and from
that you inferred or assumed that he was admitting burning it?
WITNESS: The reason why I presumed that he was admitting having burnt my homestead
down, it is because when I put a question to him, as to what had I done to him, which deserved
the burning of my homestead?
MR HOWSE: What did he answer?
WITNESS: He told me that I did nothing.
MR HOWSE:He then said he would assist you to rebuild?
WITNESS: Yes.'
The appellant‟s version of that conversation was that all he did was express his
sympathy for the loss of Wayiya‟s homestead. He denied that he had admitted that he
had set fire to Wayiya‟s house.

The evidence in relation to appellant’s convictions of assault with intention to do
grievous bodily harm
[40] It is now necessary to turn our attention to the evidence presented in relation to
the charges of attempted murder, which resulted in the three convictions of assault with
intent to do grievous bodily harm. It is common cause that the complainants in respect
of the three charges were forcibly brought to the „Great Place‟ by a rowdy group of the
appellant‟s supporters. It is also undisputed that they were brought there because the

Tyalara community was incensed because it had been alleged that the three
complainants and the deceased were guilty of housebreaking and rape. During that
alleged crime spree they were said to have kissed a woman in front of her husband who
was disabled and wheelchair bound. The last mentioned allegation appears to have
been the one that caused the greater sense of outrage.

[41] One of the young men, Mr Malandela Sontanase (Sontanase), who had been
accused of perpetrating the acts referred to in the preceding paragraph testified that he
was assaulted by members of the community before he arrived at the „Great Place‟ but
not seriously and had sustained only minor injuries. Although Mr Derrick Mlandeni
Ngcambu (Derrick), a headman and part of the appellant‟s chain of command as well as
being a relative of his, did testify that the young men who had been brought to him en
route to the „Great Place‟, had been badly beaten. His evidence, however, is at odds
with the evidence of at least one of the complainants and a number of other state
witnesses.

[42] Derrick‟s evidence as well as the testimony of another loyalist and of two of the
complainants, namely Sontanase and Mr Welile Duma (Duma), was to the effect that
the appellant was the person responsible for the savage beating that the three young
men were forced to endure. They described what had occurred as follows: The three
young men were ordered by the appellant to undress and to perform „frog jumps‟. He
then made the three of them lie naked on their stomachs. He then proceeded to
viciously assault them with a sjambok. He beat them so severely that Derrick could not
bear to watch and had to depart the scene for momentary relief. Those who continued
to witness the beating, including the two victims, testified that he only stopped because
he was physically exhausted.

[43] It is undisputed that the three young men were admitted to hospital the next day.
Professor Hendrick Scholtz, who testified in support of the State‟s case, stated that had
it not been for medical intervention the trauma caused by the beating would most likely
have resulted in the death of all three.

The evidence in relation to the culpable homicide conviction
[44] In respect of the charge of murder it is necessary to consider carefully the
foundations of the State‟s case. There was testimony by only one witness called by the
State that after the three young men had been beaten, the appellant had announced to
those in attendance that they had to bring the deceased to him the following day and
that they should beat him as the others had been beaten. That was not corroborated by
any other witness in attendance. It should also be borne in mind that the evidence of
Sontanase and Duma was that they were not seriously beaten en route to the „Great
Place‟.

[45] Derrick testified concerning the state in which the deceased was brought to his
house by members of the community who had intended that he be taken to the
appellant. According to Derrick the deceased had been very severely beaten and
exhibited very obvious signs of being subjected to vicious physical abuse. The
deceased‟s father had witnessed him being taken towards Derrick‟s house and appears
to have been shaken by the state in which he had encountered his son.

Evidence in relation to appellant’s conviction on the two charges of defeating the
course of justice
[46] In relation to the first charge of obstructing or defeating the ends of justice, we
have already referred to the evidence of Stokwana and Wayiya. Almost all of the
witnesses on behalf of the State who had encounters or exchanges with the King,
testified that he was a man who ruled by fear and intimidation and would brook no
resistance.

[47] In relation to the pressure brought to bear on the deceased‟s father so as to
ensure that he would not report the actual cause of the death of his son the evidence by
a number of witnesses was that the appellant was emphatic that mortuary staff should
be told that the deceased had died of natural causes and that the deceased‟s father had
been instructed not to report the matter to the police. This was the basis of the second

charge of obstructing or defeating the ends of justice. It is necessary to record that one
of the state witnesses, Ninzo Lizo Cimela, testified that, when the deceased‟s death was
first reported to the appellant, the latter considered that the best course of action would
be to throw the body in a nearby river. The elders in the community, however, thought
this to be against the very basic fabric of customary law. In this instance, the appellant
heeded their warning not to offend against tribal practice.

Approach of the court below
[48] Alkema J carefully considered the material parts of the evidence adduced on
behalf of the State and took into account the appellant‟s version of events. The learned
judge considered the evidence presented by the State in relation to the fear the
appellant induced in his subjects as overwhelming. He recorded that a succession of
witnesses expressed a deep fear of the appellant.

[49] Alkema J had regard to the evidence presented by witnesses on behalf of the
State that there was a popular uprising against the appellant during 1996 by some
members of the Tyalara community. Alongside that evidence was the testimony of the
appellant that a few people he considered to have criminal tendencies had initiated an
uprising and had placed his life in danger. He testified that he had sought the protection
of a prominent family member, the former State President, Mr Nelson Mandela.
According to other witnesses Mr Mandela placated the crowd by ensuring them that
there would be no further evictions.

[50] Alkema J considered the testimony of witnesses for the State that disobedience
of the appellant would result in physical harm and injury. He was persuaded that the
evidence by Mr Wofa that he was too scared to report the death of his son to the police
after being warned not to do so by the appellant to be true and as a result of which he
initially refused to speak to any policeman when police investigations commenced, was
credible. The court below concluded that the totality of the evidence presented a picture
of the appellant as a King who ruled as a merciless despot.

[51] Alkema J accepted the evidence of witnesses for the State that the setting on fire
of homesteads as a means of securing evictions, occurred solely on the instructions of
the appellant. The learned judge was impressed by the evidence of Stokwana and his
wife as well as with the evidence of Wayiya. Against their evidence and the totality of
the evidence adduced on behalf of the State, the court below found the appellant to be
a poor witness. Alkema J described him as follows:
„He was self-righteous, at times discourteous and even contemptuous to the court; he insisted in
giving long and irrelevant explanations without answering questions; part of his evidence is so
improbable that it may be rejected as false; his version of events seemed to change with every
new legal representative he engaged; he testified to material events which were never put to
any State witnesses; he often contradicted himself or refused to answer questions, or gave
lengthy answers which were irrelevant to the question asked or gave incomprehensible
answers. In many respects his evidence-in-chief contradicts in material respects with what was
put to the State witnesses. In short, he made a poor impression on the court and we find his
evidence suspicious in some respects and downright untruthful in other respects.‟

[52] Against that background he rejected the appellant‟s explanation that the decision
to evict Stokwana and Mbuzeni by setting fire to their homes, was one reached by the
community. In addition, the court below had regard to a number of state witnesses who
denied that those acts carried the community‟s approval. Alkema J also took into
account that the appellant did not present the evidence of a single member of the
community to substantiate his version of events, when, in the face of overwhelming
evidence on behalf of the State, one would have expected him to do so.

[53] The court below dealt with the appellant‟s assertion that the three young men
were in fact assaulted by the community and not by him. Alkema J took into account the
appellant‟s concession that punishment for the crimes the three young men were
alleged to have perpetrated, were beyond his jurisdiction and a matter for the SAPS.
The learned judge asked rhetorically why the appellant, as King, stood idly by and did
not report the matter to the police? The court below concluded the appellant‟s
explanation that the three young men had been assaulted by others was fanciful,
nonsensical and incomprehensible.

[54] The court below accepted the evidence of Stokwana‟s wife that she and her
children were ordered to go to the „Great Place‟ after the homestead was set on fire, in
order to secure her husband‟s attendance and thereby to compel him to pay the
outstanding fine in relation to his alleged grazing transgressions. He rejected the
appellant‟s contention that he merely gave the mother and children shelter out of
compassion.

[55] In relation to the setting alight of Wayiya‟s homestead, the court below recorded
that the State‟s evidence was circumstantial. Alkema J took into account that Wayiya‟s
homestead was set on fire on the same day as Mbuzeni‟s hut. The court below had
regard to the hearsay evidence of Wayiya‟s late wife, admitted in terms of s 3(1)(c) of
the Law of Evidence Amendment Act 45 of 1988, that she had reported to Wayiya that
the appellant had arrived at the homestead with some men, ordered all the household
effects and furniture to be removed and then set the huts alight. The court below stated
that on its own no weight could be attached to that evidence. Alongside that evidence
the court below took into account the evidence by Wayiya that the appellant had
admitted that he had set fire to his house „by mistake‟ and that the appellant had offered
to rebuild the house.

[56] The appellant testified that there had been bad blood between Stokwana and his
brother, Wayiya, and speculated that Stokwana was probably to blame for Wayiya‟s
house being set on fire. According to Wayiya, he and Stokwana, at that time, were at
the Bityi police station to withdraw the charge of arson against the appellant that had
been preferred by the latter. Wayiya and Stokwana were adamant that there had been
no bad blood between them.

[57] The court below considered the evidence of Derrick concerning a meeting that
took place on 20 July 1995 to discuss Mbuzeni‟s eviction. According to Derrick, the
appellant, at that meeting, announced that Wayiya‟s family was also to be evicted
because Wayiya was harbouring Stokwana‟s livestock and the appellant had ordered

everyone to proceed to Wayiya‟s homestead. Derrick testified that he arrived at the
homestead only after it had already been set alight. The court below took into account
that Derrick had been a witness who was warned in terms of s 204 of the CPA. The
court found that Derrick was not a good witness and that he was often vague and
contradictory, but could find no reason for rejecting his evidence in relation to the setting
on fire of Wayiya‟s house. Against all the circumstances set out above, the court below
concluded that Derrick‟s evidence that the appellant had ordered the eviction of Wayiya
and ordered members of the community to accompany him to the homestead, had a
ring of truth to it. The court also took into account that there was a pattern to the manner
in which the appellant behaved in relation to the setting on fire of the homes of
Stokwana, Mbuzeni and Wayiya. The court rejected the appellant‟s evidence that he
had accompanied men to Wayiya‟s homestead only after they had received a report that
it had been set on fire and that he went there only to assist to douse the blaze.

[58] The court below, in rejecting the appellant‟s defence that in setting on fire his
own property he could not be guilty of arson, said the following:
„[262] It is trite that when developing common law, including criminal law, the court
must promote the spirit, purport and objects of the Bill of Rights. (s.39 (2) of the Constitution).
Section 26 of the present Constitution (unlike the interim Constitution) provides that everyone
has the right to have access to adequate housing. Sub-section 3 provides:
“No one may be evicted from their home, or have their home demolished, without an order of
court made after considering all the relevant circumstances.”
[263] I therefore have no doubt that, as our law stands today, arson is committed even if a
person sets his or her own immovable property on fire with the intention of injuring another. By
injury is not meant only patrimonial loss, but it also includes the depravation of another‟s
constitutional rights to housing and not to have his or her home demolished or destroyed without
an order of court.
[264] The defence that the accused set his own property alight must therefore fail.‟
It is necessary to record that before stating what is set out above, the court below had
regard to the development of our law in respect of the crime of arson and had regard,
inter alia, to the decision of this court to R v Mavros 1921 AD 19 (A) and concluded that

a person could be guilty of arson if one sets fire to one‟s own property with the intention
to injure another.

Conclusions
[59] We agree fully with the characterisation by the court below of the manner in
which the King ruled. His behaviour was all the more deplorable because the victims of
his reign of terror were the vulnerable rural poor, who were dependent upon him. Our
Constitution does not countenance such behaviour. We are a constitutional democracy
in which everyone is accountable and where the most vulnerable are entitled to
protection.

[60] We agree fully with the court below in its characterisation of the appellant as a
witness. We are in full agreement in relation to the factual findings by Alkema J
concerning the charges of arson. That conclusion could safely be reached even without
consideration of the evidence Wayiya‟s deceased wife tendered by way of the
provisions of the Evidence Amendment Act. Insofar as there appears to have been a
dilution under cross-examination, of Wayiya's evidence that there had been an
admission by the appellant that he had set fire to the house, it is necessary to take into
account that counsel on behalf of the appellant appeared to have accepted that there
had been an offer to rebuild Wayiya's house. In our view, Wayiya's reasoning referred to
in paragraph 39 above was justified. We can find no flaw in the reasoning leading to the
conclusion that the appellant was involved in all three incidents.

[61] We now turn to consider the appellant‟s defence, namely that he could not be
found guilty of arson because he had set fire to his own immovable property which,
according to South African law, was not a crime. Simply put, we consider whether the
crime of arson can be committed when a person sets fire to his own immovable
property. The submission on behalf of the appellant was that the farm Tyalara on which
the events in question took place was registered in his name and the structures which
he had set alight had acceded to the land and therefore belonged to him and he could

thus not be convicted of arson since the offence cannot be committed when one sets
fire to one‟s own property.

[62] A primary problem for the appellant is that whilst the farm is registered in his
name, the restrictions contained in the title deed are significant. They are, inter alia, as
follows:
„(II) That the piece of land hereby granted shall not be alienated or transferred unless the
consent of the Governor to such alienation and the approval of the new holder, shall have been
first had and obtained….
(XIII) That the piece of land hereby granted shall not be capable of being devised by Will, but
upon the deceased of the Grantees shall devolve upon and be claimable according to the rule of
primogeniture by one male person to be called the heir and to be determined by the Table of
succession contained in Section 24 of the Glen Gray Act, 1894.‟
These restrictions reflect that the land is held by the appellant as hereditary monarch for
the benefit of his tribe and subjects. He may not alienate the land without State
approval. In these circumstances he can hardly be heard to claim that the property is his
to set to fire to at will. But even if one were to accept that he was the owner of the
immovable property as conventionally contemplated, the problem that arises is that the
development in our law, referred to in the paragraphs that follow, is contrary to the
submission on his behalf, namely, that he could, with impunity set fire to the immovable
property because he is the owner.

[63] As alluded to earlier, it was accepted by counsel on behalf of the appellant that
for all intents and purposes a charge of arson in terms of s 40 of the TPA referred to
above can be regarded as a charge in terms of the common law. According to J R L
Milton in South African Criminal Law and Procedure:
„Arson consists in unlawfully setting an immovable structure on fire with intent to injure another.‟5
C R Snyman states:
„A person commits arson if he unlawfully and intentionally sets fire to:
(a) immovable property belonging to another; or

5 J R L Milton South African Criminal Law and Procedure Volume 2: Common-Law Crimes 3 ed (1996) at
777.

(b) his own immovable insured property, in order to claim the value of the property from the
insurer.‟6
Snyman appears to contemplate that the only basis on which a person who sets fire to
his own immovable property can be found guilty of arson, is when he does so in order to
defraud an insurer. In other words, there is a very limited sphere within which setting fire
to one‟s own immovable property can lead to criminal liability. The learned author is
critical of that exception to the rule. He acknowledges that this court in Mavros has held
that one could be guilty of arson when one sets fire to one‟s own immovable property in
order to claim the value of the property from an insurer. However, he states the
following:
„It would have been better to punish this type of conduct as fraud instead of arson, but the
courts will in all probability not depart from the appeal court‟s view that such facts amount to
arson and this is the reason the crime was defined above in terms including this type of
situation.‟

[64] J R L Milton, deals with the development of our law in relation to the crime of
arson.7 The learned author points out that, at an early stage, our courts had to decide
whether arson in South African law was the arson of English law, in which event the
setting on fire of one‟s own property was not a crime. Brandstichting of the Roman-
Dutch law was such that one could be punished for setting fire to one‟s own property.
With reference to the restriction in South African law, of limiting arson to the setting on
fire of immovable property the author submits that the restriction was influenced by the
concept that the purpose of the crime was to protect rights of habitation. He submits that
the preferable view is that the crime exists to protect, amongst other things, economic
interest in property and that there is no persuasive or compelling reasons to restrict the
ambit of the crime to the burning of habitation. In dealing with the question whether one
can commit arson in respect of one‟s own property, the author states that there is some
Roman-Dutch authority for the proposition that an owner who burns his own property

6 C R Snyman Criminal Law 5 ed (2008) at 548.
7 J R L Milton (op cit) at 778 et seq.

with intent to injure another commits arson.8 Over a century ago in R v Hoffmann; R v
Saachs & Hoffman (1906) 2 Buch AC 342 at 346-347, the court said the following:
„Where a person attempts to set fire to the house of another person he is guilty of an attempt to
commit arson, whether there is any intent to fraudulently obtain insurance money or not. Where
a person burns his own house, the question whether he is guilty of “brandstichting”, or arson,
must, under our law, depend upon the further question whether the deed was done with the
object of injuring others (Van der Linden, 2, 4, 7). If the object be to defraud an insurance
company the intent would certainly be to injure another so as to bring the offence within the
definition.‟ A decade and a half later, this court, in Mavros, said the following (at 23-24):
„The facts alleged in the indictment therefore amount to brandstichting; but that it is said is not
the crime charged; the term arson does not cover brandstichting and the facts laid do not
constitute arson. The judgment in Rex v Enslin (2 App. Court, p. 69), no doubt supports that
contention. The accused had been convicted of arson for wrongfully and maliciously setting fire
to certain stacks of barley, the property of another person with intent to injure the owner. The
Cape Court of Appeal quashed the verdict, holding that whether or not Enslin might have been
convicted of “brandstichting” he could not be convicted of arson. It was argued for the Crown
that the word “arson” had been used as the nearest English equivalent for the incendium or
brandstichting. But that argument found no favour with the Court, which applied to the language
of the indictment its limited English meaning. The judgment was delivered by De Villiers, C.J.,
who some years later would appear to have modified his views. In Rex v. Hoffman (2 A.C.,
p 346), he employed the term brandstichting and arson as synonymous expressions. His
remarks in the later case were obiter merely; but they are not consistent with the reasons in Rex
v. Enslin. I do not think we should follow Enslin‟s case and give to the word “arson” in the
present indictment its strict English interpretation. Because I am satisfied that arson is in South
African practice used to denote the corresponding, but somewhat wider, crime of our law. When
an indictment charging a Roman-Dutch law offence is drafted in English, it is convenient, if not
necessary, to describe the offence by the English word which most accurately denotes it. And
the use of such a word need not carry with it the consequences which would accompany it in an
English indictment. Now “arson” is the nearest equivalent to brandstichting; it is the word which
would certainly be used in translating into English a Dutch indictment charging the latter offence.
In every translation which I have been able to consult I find that the offence of brandstichting is
described as arson, and I do not know how else it would have been possible to describe it. It is

8 In this regard, see the reference to the authorities at 779.

not strange, therefore, to find the statement made in a very careful textbook that arson is
employed in South African indictments to denote the wider crime of brandstichting (Gardiner
and Lansdown, p. 1162). In my opinion it was so employed here. And that being so, the point
reserved must be answered in favour of the Crown, and the conviction must stand.‟
In the passage immediately preceding the above excerpt, Innes CJ said the following (at
22):
„In my opinion, therefore, we should sanction that procedure by holding that the crime of
brandstichting is committed by a man who sets fire to his own house wrongfully, maliciously and
with intent to injure or defraud another person.‟
The word „or‟ in the last mentioned passage is disjunctive. It would thus seem that
Snyman interpreted the decision in Mavros too narrowly. Simply put, the effect of the
decision is that one can be guilty of arson when one wrongfully and/or maliciously sets
fire to one‟s own immovable property either with the intention to injure another person or
to defraud another person.

[65] In S v Van Zyl 1987 (1) SA 497 (O) the appellant, a builder, had been convicted
of arson after having burnt down a house which belonged to him but which had been
inhabited by the complainant. The conviction was contested on the basis that the
common-law crime of arson did not extend to a person burning down his own
immovable property. The court, after having examined the old authorities and modern
academics who took a view that supported the appellant, held that arson can be
committed where a person sets fire to his own immovable property with the intention to
prejudice the property interests of another person.

[66] In an article entitled „The nature of the crime of arson in South African Law‟,
Professor S Hoctor, 9 in essence agrees with the approach adopted by Milton referred to
in para 27 above. In her concluding remarks she states the following:
„As Milton points out, the argument that the owner and occupier of a house is free to burn it
down if he chooses to do so is problematic.
. . .

9 Shannon Hoctor „The nature of the crime of arson in South African Law‟ (2013) 19(2) Fundamina 321.

Although the act of destroying one‟s own property may not be unlawful in itself, it may be
submitted that, as with the crime of extortion, the intention with which the accused acts will
serve to convert an ostensibly lawful act into an unlawful one. This fits with the assessment of
Carpzovious and Moorman in the Mavros case regarding the centrality of the actor‟s intent, and
that “the essence of crime is the intent with which the act is committed”. It may further be noted
that since dolus eventualis would suffice for the purposes of liability, provided that the accused
foresaw the possibility that in setting fire to his or her own property, damage could result to the
property of another, and proceeded reckless of such possibility, liability for arson could ensue.‟
(footnotes omitted)
We endorse the views espoused by Milton and Professor Hoctor referred to above. The
conclusions reached by them are in accordance with the decision of this court in
Mavros. Having regard to the factual findings referred to above the compelling
conclusion is that the appellant set fire to each of the complainants‟ homes with the
intent to injure. The conviction on the three charges of arson was thus well founded.

[67] In respect of the appellant‟s conviction on the charge of kidnapping, we agree
that the appellant‟s version that he was acting out of compassion is implausible and can
be rejected out of hand. It is a twisted mind that first deprives a mother and her infant
children of the comfort of a home by torching it, inducing fear and trepidation, and then
suggests that he acted out of compassion in offering them shelter and food, after
ordering them to accompany him to the „Great Place‟.

[68] In dealing with the attempted murder charges which involve the assaults on the
three young men, the court below recorded that the appellant had disputed the extent of
his involvement in the assaults. Alkema J noted that the appellant testified that when he
first saw the three young men in a hut at the „Great Place‟ they already been brutally
and severely beaten by their captors. He took into account that the appellant had
testified that they were so savagely beaten that „[n]o sane person would have assaulted
those three young men given their condition at that stage. According to the appellant he
had applied three light strokes over their buttocks in an attempt to appease the
community and prevent them from being killed.

[69] It is necessary to set out in some detail what was stated by the court below in
relation to the appellant‟s version of events:
„[269] This court has no hesitation in rejecting the version of the accused as palpably
false. As in the case of the burning of the homesteads as a means of evicting the entire families
from Tyalara, he again seeks to hide behind the faceless community. I do not intend to repeat
the criticism of the accused's explanations in this regard, but merely refer to some aspects
relevant to those particular events.
[270] Firstly, the allegation that it was the community who had assaulted the three victims, fly
in the face of the weight of the evidence before the court. Derrick's evidence that the three had
only been lightly assaulted by their captors is corroborated by the victims themselves who
testified. Whereas there is no doubt that they were also assaulted by their captors, the
overwhelming weight of the evidence is that it was the accused who inflicted the most serious
injuries.
[271] Secondly, Derrick's evidence that he ordered the assaults to cease after the three were
brought to his homestead the previous evening is confirmed by the victims who testified that
they were not further assaulted after being taken to Derrick's homestead the previous day.
[272] Thirdly, the three victims were taken on foot to the Great Place the following day. After
they were assaulted at the Great Place they were unable to walk, and Malandela was forced to
stay overnight. The other two were transported. If they received the major injuries before taken
to the Great Place, they would have been unable to walk there.
[273] Fourthly, it is improbable in the extreme that they were assaulted by the community at
the Great Place after they got there and before the accused arrived. According to the victims
themselves, it was the accused, and not the community who ordered them to undress and
prostrate themselves on the floor. They were so savagely beaten by the accused that Derrick, a
chief and loyalist to the King, could bear it no longer and left the hut. The accused confirms that
Derrick left the hut, and testified that he went outside to speak to Derrick whilst Ninzo continued
with assaults inside. The evidence shows clearly, in our view, that the assaults did not receive
the approval of the community present, and there is no support whatsoever for the accused's
contention that it was the community, and not him, who inflicted the most serious injuries.
[274] Fifthly, the evidence is overwhelming that no subject of the King would dare to disobey
his orders. Anyone doing so ran the risk of his or his family's homestead being burnt down and
evicted. The accused ruled with fear and trepidation. Ninzo testified that he will cut the throat of
a person with a knife if so ordered by the King, and this sentiment was confirmed by many State
witnesses, including the accused's own confidant ("informer") Derrick. To suggest against the

weight of this evidence, as the accused attempts to do, that he was unable to put a stop to the
assaults by the community on the three victims, or that they would have disobeyed his orders if
he had instructed them to stop the assaults, is simply so improbable to be incredible.
[275] Sixthly, and despite being given numerous opportunities by the court, the accused was
unable to explain why it was necessary for him to continue with the assault, even with "light
punishment" given the serious condition of their state of health when he saw them ("no sane
person would continue to assault them in view of their medical condition)." His explanation, if in
fact it can be said to be an explanation, that he did so to appease or pacify the community, or to
prevent them from further assaulting or even killing them, is so incredible that it defies belief. On
his instructions, no one touched the personal belongings and effects of those whose huts were
burnt down and whose belongings were placed outside the huts before the acts of arson, not
even Mbuzeni's own mother. Why would they defy his orders to cease the assaults? What
stopped the accused from ordering the assaults to cease? To suggest that it was his fear for the
community, is beyond belief.
[276] Finally, on the accused's own version, he realized that the community may kill the three
victims if they were to be released from his custody. Yet, he is unable to give any meaningful
explanation why, instead of administering "light punishment," he did not refer the three to the
police for investigation or to a medical clinic for treatment after their capture. The three were in
any event released by him after the assaults. He agreed that he had no jurisdiction over the
suspected crimes allegedly committed by them. His only explanation, if it can be termed an
explanation, is that it was "people's justice" or "jungle justice." But even if it was, he could not
explain why the crimes, including the assaults on all four and the death of Saziso, was never
reported to the police.
[277] There are a number of other unsatisfactory features in the evidence of the accused
which warrant it to be rejected as untruthful, but in view of my remarks above coupled with those
earlier in this judgment, I do not believe it is necessary to further burden this judgment with such
irregularities. It suffices to repeat that this court  has no hesitation in rejecting the version of the
accused as far-fetched and false insofar as it differs from the State version in relation to the
assaults on the three victims.'

[70] We are in agreement with the essence of what was stated by Alkema J as set out
in the preceding paragraph.

[71] In respect of the murder charge Alkema J took into account that the deceased
was implicated as the ringleader in respect of the offences alleged to have been
committed with the other three young men. It is true that it was undisputed that the
appellant had issued an instruction that the deceased be brought to the „Great Place‟.
The court below accepted that there was no evidence that the appellant himself had
assaulted the deceased. Alkema J accepted that the appellant was not even present
when the deceased was assaulted. It was common cause that the deceased had died
as a result of severe assaults on him perpetrated by members of the community. The
court below considered the appellant‟s involvement in intimidating the deceased‟s father
so as to cause him not to report the matter to the police as being inextricably bound to
the question of his guilt in relation to the death of the deceased.

[72] The court below took into account the testimony of Mr Mthata Xoko who was the
only witness that testified that when the appellant issued the instruction that the
deceased be brought to the „Great Place‟ he also issued an instruction that the
deceased should be assaulted „in the same manner that had happened to . . . his co-
suspects‟ before being brought to the „Great Place‟. The court below took the view that
Mr Xoko was a credible witness and accepted his evidence. Alkema J concluded that
the evidence shows that the appellant expected the community to assault the deceased
after they had captured him and reasoned that having issued the instruction he ought to
have foreseen the death of the deceased. Alkema J concluded that the appellant‟s
negligence caused the deceased‟s death and that he was thus guilty of culpable
homicide.

[73] Mr Xoko was the only witness who testified that this instruction was given. The
other State witnesses denied this and testified that the instruction was that the
deceased should be brought to the „Great Place‟. In any event, as recorded above, the
other three young men had not been severely assaulted before they were brought to the
„Great Place‟. For these reasons the culpable homicide conviction cannot stand and as
Counsel for the State accepted before us it falls to be set aside.

[74] In relation to the counts relating to the intent to defeat the course of justice, first,
the court below held that the evidence clearly showed that the appellant had directly
and indirectly exerted pressure on Stokwana to withdraw the arson charge. The court
below added that it was clear that the appellant had also used others to exert pressure
on Stokwana to withdraw the charge.

[75] In respect of the appellant‟s actions in relation to the father of the deceased, the
court below said the following:
„It [the charge] relates to the accused‟s instruction to Koto Wofa not to report the death of his
son Saziso to the Police; to falsely inform the mortuary that Saziso had died of natural causes;
and not to consult an attorney or obtain legal advice. I have no doubt that this offence has been
established on the evidence. The instructions were coupled to threats of eviction if not obeyed.‟

[76] We can find no flaw in the reasoning and conclusions by the court below as set
out in the preceding two paragraphs. The convictions on those two counts were fully
justified.

[77] As a final note on the merits, a recurring theme in the defence raised by the
appellant was the astonishing submission that it should be understood that the appellant
was acting in the best interest of his people and by resorting to his brand of justice he
was merely seeking to protect them from outside influences and upholding customary
law. In this regard the appellant would do well to have regard to what was stated on
behalf of the State by Professor Digby Sqhelo Koyana, namely, that customary law
demanded that a King ensures the maintenance of law and order, protects the life and
security of his people, act compassionately with due regard to the dignity of his
subjects. More importantly, our constitutional order will not countenance the kind of
conduct the appellant was guilty of.

[78] It is now necessary to turn our attention to the appellant‟s contention that the
cumulative effect of the sentences imposed was too severe. It is also necessary to
consider the impact on the effective sentence of the setting aside of the culpable
homicide conviction.

[79] It will be recalled that in respect of the counts of arson the appellant was
sentenced to five years‟ imprisonment on each count, but the sentences were ordered
to run concurrently. In addition, the sentence of one year‟s imprisonment imposed in
relation to the kidnapping charge and the sentence of one year‟s imprisonment imposed
in respect of the conviction of defeating the course of justice relating to the pressure
exerted on Stokwana were also ordered to run concurrently with the five years‟
sentence imposed in respect of the arson convictions. Having regard to the callous
manner in which the acts of arson were perpetrated, as well as taking into account that
the appellant involved members of the community in perpetrating those deeds, the
sentences might well be considered to have been too lenient. This is especially so if one
considers that the kidnapping of Stokwana‟s wife and children followed upon the setting
on fire of their home and demonstrates a particularly callous mind set.

[80] In respect of the appellant‟s convictions of assault with intent to do grievous
bodily harm, it is necessary to remind ourselves that the beatings, in full public view,
continued until the appellant was exhausted and had it not been for medical
intervention, the three young men would probably have died. The appellant was
sentenced to five years‟ imprisonment in respect of each conviction and the sentences
were ordered to run concurrently. The appellant is extremely fortunate not to have been
sentenced to a far longer period of imprisonment on those counts.

[81] In relation to the pressure exerted on the deceased‟s father not to report the true
circumstances of his son‟s death to the police or any other authority, the appellant was
sentenced to two years‟ imprisonment and it was ordered to run concurrently with the
sentence of 10 years‟ imprisonment imposed in respect of the culpable homicide
conviction. Considering the insensitive manner in which the deceased‟s father was dealt
with when the body was delivered to him and the further indignity that he had to endure
when he was fined because it was said that his son had brought dishonour to the King,
the sentence imposed can hardly be described as severe.

[82] What remains to be considered is the effect of the setting aside of the culpable
homicide conviction and the related sentence. The sentence of two years‟ imprisonment
imposed in respect of the pressure exerted on the deceased‟s father can no longer run
concurrently with the sentence imposed in respect of the culpable homicide conviction.
Five years of the ten year sentence in respect of the culpable homicide conviction were
ordered to run concurrently with the sentences imposed in respect of the three
convictions of assault with intent to do grievous bodily harm. It was on that basis that
the effective sentence imposed by the court below was 15 years‟ imprisonment. As is
more graphically demonstrated by the substituted order set out hereafter, the falling
away of the culpable homicide conviction and the related sentences result in a new
effective sentence of 12 years‟ imprisonment. The appellant‟s contention that the
effective sentence is too severe is thus rejected. The lesson that cannot be emphasised
enough is that persons in positions of authority such as the appellant are obliged to act
within the limits imposed by the law and that no one is above the law. The Constitution
guarantees equal treatment under the law. The appellant behaved shamefully and
abused his position as King. The period of imprisonment he is to serve is no more than
just deserts for what, given his position of authority, are after all particularly heinous
crimes.

[83] For the reasons set out above, the appeal succeeds only to the limited extent set
out in the order that follows:
(a). Save in relation to the conviction of culpable homicide and the consequent
sentence, the appeal is dismissed.
(b). The conviction of culpable homicide and the sentence of ten years‟
imprisonment imposed in respect of that conviction are set aside.
(c). The order by the court below in relation to sentence is substituted as follows:
„1. In respect of the arson charges, namely Counts 1, 14 and 15, the accused is
sentenced to FIVE (5) YEARS IMPRISONMENT in respect of each count.
2. In respect of the kidnapping charges, namely counts 5, 6, 7, 8, 9, 10 and 11,
which is taken as one count, the accused is sentenced to ONE (1) YEAR
IMPRISONMENT.

3. In respect of the charge relating to defeating the ends of justice by unduly
influencing Mr Stokwana Sonteya to withdraw the arson charges, the accused is
sentenced to ONE (1) YEAR IMPRISONMENT.
4. All the sentences referred to in paragraphs 1, 2 and 3 above shall run
concurrently with each other, resulting in an effective sentence of FIVE (5) YEARS
IMPRISONMENT in respect of all the aforesaid charges.
5. In respect of the assault charges, namely Counts 24, 26 and 28 the accused is
sentenced to FIVE (5) YEARS IMPRISONMENT in respect of each count.
6. The sentences of five (5) years in respect of the aforesaid assault charges shall
run concurrently with each other.
7. In respect of the charge relating to defeating the ends of justice by concealing the
death of Saziso Wofa, the accused is sentenced to TWO (2) YEARS
IMPRISONMENT.
8. The accused is thus sentenced to an effective term of TWELVE (12) YEARS
IMPRISONMENT.‟

_____________________
M S Navsa
Judge of Appeal

_______________________
E D Baartman
Acting Judge of Appeal

APPEARANCES:

FOR APPELLANT:

B C Dyke (with him C van Rooyen)

Instructed by:

Mbuyisa Neale Attorneys, Johannesburg

McIntyre Van der Post, Bloemfontein

FOR RESPONDENTS:

N J Carpenter (with him N Majova)

Instructed by:

Director of Public Prosecutions, Mthatha

Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

1 October 2015

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Dalindyebo v The State (090/2015) [2015] ZASCA 144

MEDIA STATEMENT

Today, the Supreme Court of Appeal (SCA) dismissed the appeal of Buyelekhaya Dalindyebo,
Paramount Chief of the AbaThembu (the appellant), except insofar as it related to a conviction of
culpable homicide and the related sentence.

The appellant was convicted by the court below of multiple counts of arson, kidnapping, defeating the
ends of justice, assault with intent to do grievous bodily harm, and culpable homicide.  The charges
all related to crimes that were committed between 1995 and 1996, during the appellant’s reign as the
Paramount Chief of the AbaThembu, and the crimes were all directed against his ‘subjects’.  The
crimes also all occurred on the farm Tyalara, which was registered in the appellant’s name and over
which he ruled in his capacity as Paramount Chief.

The convictions included crimes arising from the burning of the homesteads of three families as a
means of evicting them from the farm, the kidnapping of a mother and her children as a means of
coercing the head of their household to appear before the appellant, the assault of three young men
to the extent that medical intervention was necessary to avert their deaths, and improper pressure to
prevent the laying of criminal charges against the appellant, and to withdraw charges against him.

On appeal to the SCA, the appellant argued that the trial had been unfair due to there being an undue
delay in the prosecution, him being inadequately legally represented, and the presiding judge and the
prosecutor conducting the trial in an improper fashion.  The appellant further argued that the court a
quo had erred on both the evidence, and also in convicting him of arson because, the argument went,
he could not be convicted of arson where the buildings that he burned down belonged to him

(because the land was his, and the buildings had acceded to his land).  Finally, the appellant argued
that the effective sentence of fifteen years was too severe.

The SCA rejected as baseless the unfair trial arguments, and found that there was no merit to the
allegations of impropriety on the part of the trial judge or the prosecutor, that the multiple legal
representatives employed by the accused were adequately experienced, and that the primary cause
in the delays in the institution of the prosecution and the trial was the appellant himself.

The SCA also rejected the appellant’s argument that the charge of arson was incompetent, and noted
that although the land was registered in his name, it was clear from the title deed and the context that
it was held by the appellant as hereditary monarch for the benefit of his tribe and ‘subjects’.  In those
circumstances, it could hardly be said that the property was his to set fire to at will.  In any event,
however, the SCA held that arson can be committed where a person sets fire to his own immovable
property with the intention to injure another person.

On the evidence, the SCA confirmed the court a quo’s characterisation of the manner in which the
appellant ruled as Paramount Chief, which was as a ‘merciless despot’.  The SCA held that the
appellant’s behaviour ‘. . . was all the more deplorable because the victims of his reign of terror were
the vulnerable rural poor, who were dependent upon him.’

The SCA rejected the appellant’s version that he had burned down the homesteads of his ‘subjects’
at the behest of ‘the community’, which had decided to evict the families concerned, and that his
beating of the three young men with a sjambok was in fact an intervention consisting of only light
punishment, with the aim of placating an enraged mob and preventing further harm to the victims.
The SCA further confirmed the convictions relating to defeating the ends of justice.

However, the SCA upheld the appeal with regards to the conviction of culpable homicide, as the
evidence linking the appellant to the killing of the fourth young man, being an alleged instruction
issued by the appellant, had not been proved beyond a reasonable doubt.

Accordingly, the SCA dismissed the appeal except insofar as it related to the conviction for culpable
homicide, and so reduced the effective sentence of the appellant from fifteen years’ to twelve years’
imprisonment.  It concluded as follows: ‘The lesson that cannot be emphasised enough is that
persons in positions of authority such as the appellant are obliged to act within the limits imposed by
the law and that no one is above the law. The Constitution guarantees equal treatment under the law.
The appellant behaved shamefully and abused his position as King. The period of imprisonment he is
to serve is no more than just deserts for what, given his position of authority, are after all particularly
heinous crimes.

--- ends ---