One of the reasons the AbaThembu are appealing to the Constitutional Court is that King Buyelekhaya Dalindyebo‚ as an officer of the judiciary in a customary setup‚ was empowered to impose sentences.

AbaThembu traditional leaders at a meeting on Wednesday established that the king was arrested‚ prosecuted and convicted because of a mistake in a judgment he made against subjects appearing in his own court.

The traditional leaders were now challenging that conviction because customary law was recognised by the Constitution of the Republic of South Africa‚ saying that the modern legal system had convicted the king for exercising his traditional legal duties.

“I have never heard of any magistrate or judge being charged and convicted for a decision that he or she made or…decision to overturn it‚” said Phathekile Holomisa.

“If the decision of his majesty was found to be wrong‚ he should be treated the same [way] other judiciary officers [are] when their decisions are overturned.

“He cannot therefore be criminally charged for executing his judiciary duties as king in a traditional court in line with customary law.”

He added: “In our understanding the Constitution does give recognition to customary law and the institution of traditional leadership.

“But we have learnt that the king is being prosecuted‚ charged‚ convicted and sentenced for doing his job.”

Holomisa‚ who is from Mqanduli‚ was speaking for all the traditional leaders under Dalindyebo‚ and is the head of the AmaHegebe tribe.

Holomisa‚ an advocate‚ was president of the Congress of Traditional Leaders before he became the deputy minister of labour.

He said lawyers had failed to ask that the case be removed from the magistrate or high court and be referred back to the traditional court.

Writing for the Daily Maverick‚ Pierre de Vos‚ who teaches constitutional law at the University of Cape Town’s law faculty‚ said the role of traditional leaders in post-apartheid South Africa was one of the thorniest issues to be decided during constitutional negotiations.

He said there was disagreement in the African National Congress over the extent of the role and the status of traditional leaders in a democracy.

“It is perhaps for this reason that the provisions in the Constitution dealing with the recognition of traditional leaders are weak and somewhat vague‚” he wrote.

“Section 211 of the Constitution states that: The institution‚ status and role of traditional leadership‚ according to customary law‚ are recognised‚ subject to the Constitution. The section further states that it is permissible (but not required) to allow a traditional authority that observes a system of customary law to function.

“The courts are also enjoined to apply such customary law when it is applicable subject to the Constitution and any legislation that specifically deals with customary law.”

Holomisa said they accepted the decision taken by the AmaDlomo royal family that Dalindyebo’s heir ‚ Prince Azenathi Zanelizwe Dalindyebo‚ “will take over in the unlikely event that the king indeed does go to jail”. “I think it’s a proper decision.

“It’s not going to be the kind of decision that is going to lead to some people refusing to vacate the seat when the time for that comes‚” said Holomisa.

 A mass meeting will be held in Bumbane on Sunday.