Recently, the Supreme Court of Appeal (SCA) dismissed AbaThembu King Buyelekhaya Dalindyebo's appeal against his earlier conviction by the Mthatha High Court.

The whole saga began in 2009 when the Mthatha High Court convicted and sentenced the king to 15 years in prison.

The high court found Dalindyebo guilty of arson, assault, kidnapping and culpable homicide. Subsequently, the king launched an appeal in the SCA against the high court's verdict and sentencing.

The SCA upheld the high court's verdict but reduced his jail sentence to 12 years. The SCA also acquitted Dalindyebo of a charge of culpable homicide.

Given the seriousness of the charges against Dalindyebo, he is more likely to approach the Constitutional Court and challenge the SCA verdict.

The criminal charges against Dalindyebo emanate from infractions he allegedly committed between June 1995 and January 1996.

It is alleged that within that period, the king instructed his aristocrats to mete out "traditional justice" on three villagers.

My aim is not to critique the factual veracity and gravity of charges levelled against Dalindyebo but to shed light on the jurisprudential impact of the SCA's verdict on African customary law.

By finding and confirming the guilty verdict against Dalindyebo, the Mthatha High Court and the SCA respectively failed to consider the socio-judicial obligations of a king in a communal society.

These two courts also failed to draw a line of distinction between communal justice and statutory criminality.

These courts should have considered the communal and jurisprudential context within which these offences were committed.

In any communal society, the king and his aristocrats are considered guardians and dispensers of traditional justice.

In 2011, two influential researchers, Patricia Martin and Buyi Mbambo, authored a ground-breaking research report titled An Exploratory Study on the Interplay between African Customary Law and Children's Rights in South Africa.

That research report reads in part: "Traditional leaders are the custodians, the interpreters and the enforcers of customary law. They are judicially mandated to develop, enforce and monitor customary laws..."

During the pre-colonial epoch, communal societies conceptualised their own institutions of traditional jurisprudence and communal governance.

It is critical to note that wanton violence and arbitrary rule are not the defining traits of traditional justice. Traditional justice is premised upon fairness, impartiality, equality, restitution and compensation.

Traditional justice has always been geared at rehabilitating the unethical, immoral and deviant behaviour and attitude of the offending person.

The use of violence and physical torture have never been considered an integral part of traditional justice, which is a judicial component of African customary law and must find practical expression in our judicial system.

I fully agree with former Contralesa president Chief Phathekile Holomisa's insightful assertion that: "He [Dalindyebo] cannot therefore be criminally charged for executing his judiciary duties as king in a traditional court in line with customary law."

We should not underestimate the gravity of criminal charges preferred against Dalindyebo.

But it is incumbent upon us, as Africans, to espouse and salvage the quintessence and substantive value of customary law.

I'm terribly disturbed by the persisting anti-African judicial posturing adopted and displayed by judges of the high court and SCA.

Our country's judiciary are evidently hostile towards practices that are anchored in African culture, customs and tradition.

These courts are heavily reliant and dependent on the Roman-Dutch laws . The South African criminal jurisprudence is not responsive to the historical realities and societal evolution of black Africans.

The country's judges are interpreting the law through European lenses.

Judicial interpretation should not be detached from the historical and evolutionary dynamics that define societal behaviour.

Masoga is political analyst and researcher at the Institute for Dialogue and Policy Analysis