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Judicial immunity is a common-law concept, derived from judicial decisions. It is a form of protection afforded to judicial officers by public policy in the performance of their duties. One of its objectives is to encourage judges to act in a fair and just manner, without regard to the possible extrinsic harms their acts may cause outside the scope of their judicial work. However, this protection is not at all absolute.
The principle of immunity is universal and has been the reason for the effectiveness of Traditional Courts until the conviction and sentencing of the King of the AbaThembu nation, His Majesty Dalindyebo, in the case of Congress of Traditional Leaders of South Africa v Speaker of the National Assembly and Others [2017] 2 All SA 463 (WCC).
Without deciding whether immunity would have covered the actions of His Majesty, it is important to recognise that, there are forms of punishment accepted under customary law, but are not consistent with the Constitution. To leave customary law untouched by legislative intervention would place it in constant conflict with constitutional norms and principles.
The status of customary law in South Africa (SA) is constitutionally entrenched in the Constitution. Section 211 of the Constitution provides that the institution, status and role of traditional leadership are recognised, subject to the Constitution. It further states that a traditional authority that observes a system of customary law may function subject to applicable legislation and customs, including amendments to or repeal of that legislation and those customs, and that courts must apply customary law where it is applicable, subject to the Constitution and relevant legislation.
In short, the court has asserted that customary law enjoys a status that demands equal respect, albeit that it is subject to the Constitution. Customary law must be treated as an integral part of the South African legal system representing an independent source of norms within the legal system (see Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) at para 42).
The Constitution imposes a mandatory duty on Parliament in terms of ss 211 and 212 read together with ss 34, 38 and 165 of the Constitution, to pass specific legislation dealing with the administration of justice in traditional communities and judicial immunity to traditional leaders. The mandatory duty is reinforced by the general duty of Parliament in s 7(2) of the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights of people under traditional leadership and governed in accordance with African customary law.
Therefore, Parliament had to pass appropriate legislation, as required in s 165(4) of the Constitution, to ensure that Traditional Courts are independent, impartial, have dignity and are accessible and effective. To give the declaratory order in terms of which it is made clear that Parliament’s mandatory duty to the traditional leaders and communities of SA, include passing legislation specifically giving effect to the constitutional rights of the traditional leaders and their court.
These constitutional issues arose in the Congress of Traditional Leaders of South Africa case in the applicant’s application, contending that the conviction and sentence of His Majesty, has heightened the constitutional necessity for Parliament to ensure that there is appropriate legislation regulating the proper functioning of Traditional Courts as required in the Constitution. In particular, the applicants were concerned that the significance of the case of His Majesty Dalindyebo is that traditional leaders are vulnerable to civil and criminal liability for acts committed by them in their capacity as judicial officers in Traditional Courts.
They, therefore, contended that the court should grant an order affirming that traditional leaders enjoy judicial immunity from civil and criminal prosecution for acts committed by them in Traditional Courts. The prosecution and conviction of the King for carrying out his traditional leadership role simply means that traditional leaders do not enjoy the same judicial immunity that magistrates and judges enjoy. This is unfair discrimination and a violation of s 9(1) of the Constitution.
Consequently, the applicant sought an order directing Parliament to pass appropriate legislation in terms of s 212 of the Constitution, giving effect to Traditional Courts, more particularly, judicial immunity.
Mantame J, noted that, ‘[a]lthough the applicant sought orders directed essentially at applying the principle of judicial immunity to the case of His Majesty Dalindyebo … . Whether or not King Dalindyebo should not have been tried, convicted and sentenced as a consequence of judicial immunity is not for this court to decide. It is competent for us to decide the issue of principle relating to whether in terms of our traditional court system, judicial immunity for traditional leaders applies’.
Whether or not judicial immunity applies depends on whether Traditional Courts are established and operate in accordance with the Constitution.
The authority of the traditional leaders to operate independently and impartially in traditional courts is a matter that requires urgent resolution and should not continue to be in the realm of the responsible minister, namely, the Minister of Cooperative Governance and Traditional Affairs. It does not reflect the correct constitutional position that traditional leaders and traditional courts are not operating in a manner consistent with s 165 of the Constitution.
The court stated that in its current form, traditional courts are not independent and traditional leaders cannot be said to operate in courts that are free from interference. While all other courts in SA operate within a statutory framework, it is untenable for Parliament to regard its duty to extend similar legislative recognition to traditional leaders as merely permissive. Traditional Courts must enjoy the constitutional attributes of independence.
These unique attributes may be undermined by the failure of Parliament to give specific recognition to the institution of Traditional Courts. The legislation should have been passed a long time ago after the promulgation of the Constitution. Furthermore, to approach the issues of traditional communities in the manner advocated by Parliament would essentially mean that it was not constitutionally mandatory for Parliament to pass the Traditional Leadership and Governance Framework Act 41 of 2003.
The High Court concluded the Constitution imposes a mandatory duty on Parliament in terms of ss 211 and 212 read together with ss 34, 38 and 165 of the Constitution, to pass specific legislation dealing with the administration of justice in traditional communities and judicial immunity to traditional leaders.
Parliament, must pass the appropriate legislation, as required in s 165(4) of the Constitution, to ensure that Traditional Courts are independent, impartial, have dignity, are accessible, and effective. Parliament has failed to pass legislation providing for the administration of justice in traditional communities in that no legislation envisaged in s 165(4) of the Constitution exists.
It has thus failed to give legislative recognition to the status of traditional courts, the effect of which, the position of traditional leaders and communities remains constitutionally vulnerable.
The judge reasoned that traditional leaders have the power to adjudicate disputes in their courts in accordance with African customary law. It would, therefore, be appropriate to give the declaratory order in terms of which it is made clear that Parliament’s mandatory duty to the traditional leaders and communities of SA include passing legislation specifically giving effect to the constitutional rights of the traditional leaders and their court.
However, the Constitutional Court emphasised that there was no obligation imposed on the parliament to pass the legislation as it already introduced the Traditional Leadership and Governance Framework Act.
The questions that still remain unaddressed are:
Yes, one may argue on the present case that, His Majesty was not adjudicating as a presiding officer at the time he was convicted and, therefore, he would not have been eligible for immunity.
Surely the lawmakers still have the onerous task to address and review all silent legislations that are in isolation with the rule of law by providing guides to advance the values of the Constitution.
Conclusion
In order for traditional leaders to perform their functions without fear, favour or prejudice as all other judicial officers, the issue of immunity should be reviewed and be properly addressed to also allow Traditional Courts to enjoy the constitutional attributes of independence. Our law makers, including Parliament as the representative of the people have the duty to promote and oversee adherence to the values of the Constitution.
Sipho Tumelo Mdhluli LLB (University of Limpopo) is a legal practitioner at Lekhu Pilson Attorneys in Middelburg.
This article was first published in De Rebus in 2021 (Jan/Feb) DR 24.
