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Citations:

Bluebook 21st ed.

GN. Barrie, Not Only Can the King Do Wrong, He also Does Not Have Judicial Immunity,
the Incarceration of the King of the Abathembu Nation His Majesty Dalinyebo Continues
to Reverberate, 2018 J. S. AFR. L. 670 (2018).

ALWD 7th ed.

GN. Barrie, Not Only Can the King Do Wrong, He also Does Not Have Judicial Immunity,
the Incarceration of the King of the Abathembu Nation His Majesty Dalinyebo Continues
to Reverberate, 2018 J. S. Afr. L. 670 (2018).

APA 7th ed.

Barrie, G. (2018). Not only can the king do wrong, he also does not have judicial
immunity, the incarceration of the king of the abathembu nation his majesty dalinyebo
continues to reverberate. Journal of South African Law, 2018(3), 670-680.

Chicago 17th ed.

GN. Barrie, "Not Only Can the King Do Wrong, He also Does Not Have Judicial Immunity,
the Incarceration of the King of the Abathembu Nation His Majesty Dalinyebo Continues
to Reverberate," Journal of South African Law 2018, no. 3 (2018): 670-680

McGill Guide 9th ed.

GN. Barrie, "Not Only Can the King Do Wrong, He also Does Not Have Judicial Immunity,
the Incarceration of the King of the Abathembu Nation His Majesty Dalinyebo Continues
to Reverberate" [2018] 2018:3 J S Afr L 670.

AGLC 4th ed.

GN. Barrie, 'Not Only Can the King Do Wrong, He also Does Not Have Judicial Immunity,
the Incarceration of the King of the Abathembu Nation His Majesty Dalinyebo Continues
to Reverberate' [2018] 2018(3) Journal of South African Law 670

MLA 9th ed.

Barrie, GN. "Not Only Can the King Do Wrong, He also Does Not Have Judicial Immunity,
the Incarceration of the King of the Abathembu Nation His Majesty Dalinyebo Continues
to Reverberate." Journal of South African Law, vol. 2018, no. 3, 2018, pp. 670-680.
HeinOnline.

OSCOLA 4th ed.

GN. Barrie, 'Not Only Can the King Do Wrong, He also Does Not Have Judicial Immunity,
the Incarceration of the King of the Abathembu Nation His Majesty Dalinyebo Continues
to Reverberate' (2018) 2018 J S Afr L 670

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670 BARRIE

(ii) by including a provision similar to the proposed section 139(1)(a) of the 2007
Companies Bill prohibiting a landlord from cancelling an executory lease
agreement (and thus making the relevant premises available during business
rescue proceedings); and
(iii) by including a provision that rent falling due in business rescue is "costs of the
business rescue proceedings" as contemplated in section 135(3) of the act.
Such proposed amendments will be in line with the goals of business rescue, and
will specifically assist in enabling a company to continue "in existence on a solvent
basis" (as set out in s 128(1)(b)(iii) of the act). Such proposed amendments will
require certain common-law principles of the law of contract to be reconsidered,
which will be necessary in order to give effect to a reorganisation system that meets
its goals (also see Van der Linde (2017) 238 in this regard).
"Deciding how contracts are to be treated in insolvency raises an initial question of the relative
weight to be attached to upholding general contract law in insolvency on the one hand and the factors
justifying interference with those established contractual principles on the other" (UNCITRAL
120).

SANRIE LAWRENSON
University ofJohannesburg

NOT ONLY CAN THE KING DO WRONG, HE ALSO DOES NOT

HAVE JUDICIAL IMMUNITY. THE INCARCERATION OF THE
KING OF THE ABATHEMBU NATION HIS MAJESTY DALINYEBO
CONTINUES TO REVERBERATE

Congress ofTraditionalLeaders ofSouth Africa v Speaker ofthe NationalAssembly

2017 2 All SA 463 (WCC)

1 Introduction
The issues inthis case arose from the previous arrest, trial, conviction and sentencing
of the king of the AbaThembu nation (see Barrie "The king can do wrong: the
imprisonment of the AbaThembu king Byelekhaya Zwelibanzi Dalinyebo - some
comments on South African customary law and Australian parallels" 2016 TSAR
746). As stated by Mantame J, who gave the majority judgment: "It was argued in no
uncertain terms that the spark of these proceedings is the conviction and sentence
of the King, which caused fear or distress amongst other traditional leaders" (496J).
The applicantwas the Congress of Traditional Leaders of South Africa (Contralesa)
who approached the Western Cape division of the high court seeking to undo and
reverse the previous findings of the Mthatha high court, the supreme court of appeal
and the constitutional court on the conviction and sentencing of the king.
Contralesa sought (i) an interdict against any relevant executive authority from
taking steps to cause the removal of the king; (ii) a declaration that the parliament
of the Republic of South Africa had violated the constitutional rights of traditional
leaders guaranteed in terms of section 9(1) of the constitution and the equal

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NOT ONLY CAN THE KING DO WRONG, HE ALSO DOES NOT HAVE JUDICIAL IMMUNITY 671

protection and benefit of the law, in that they do not enjoy judicial immunity from
criminal and civil liability from their decisions in the traditional courts; (iii) a
declaration that parliament had failed in its constitutional duty in terms of section
212(2) of the constitution in that it had not passed legislation dealing with the status
and powers of traditional authorities and their jurisdiction over traditional courts;
(iv) a declaration that parliament had violated the constitutional rights of traditional
communities guaranteed in terms of section 34 of the constitutionto have any dispute
that can be resolved by the application of the law decided in a fair public hearing
before a traditional court, in accordance with customary law; (v) a declaration that
the previous decision of the national director of public prosecutions to prosecute
the king for exercising his civil and criminal jurisdiction violated section 211(1) of
the constitution in that it violated the principle of judicial immunity extended to
traditional leaders when they exercise their judicial power; (vi) a declaration that the
previous decision of the national director to prosecute the king violated section 10
of the constitution, which guarantees the right to dignity; (vii) a review and setting
aside of the previous decision of the national director to prosecute the king on the
grounds that the actions of the king were not offences in terms of the Criminal
Procedure Act 51 of 1977 read together with the Transkei Penal Code Act 9 of 1983
and (viii) an order directing parliament to pass appropriate legislation in terms of
section 212(2) of the constitution dealing with the status of traditional courts and
the criminal jurisdiction of traditional leaders within a period of 36 months of such
order being made.
This discussion will focus on those views of the court on the issues relating to
the judicial immunity of traditional leaders from criminal and civil liability arising
from their decisions in traditional courts or when exercising their judicial power.

2 Background
On 21 October 2009 the king was convicted on charges of culpable homicide, three
counts of arson, three counts of assault to do grievous bodily harm, defeating the ends
ofjustice and kidnapping. He was sentenced to fifteen years direct imprisonment. On
appeal the supreme court of appeal set aside some of the convictions and sentences
and the king's term of imprisonment was reduced to twelve years. A further appeal
to the constitutional court was dismissed.
Contralesa, which looks after the interests of traditional leaders, took issue
with the fact that traditional leaders may face criminal charges pursuant to the
execution of their judicial duties - as they suggested happened to this king. They
submitted that their rights to resolve disputes in traditional courts in accordance
with customary law had been subverted by the criminalisation of the king's actions.
They submitted further that the fact that traditional leaders can be criminally or
civilly charged for decisions taken at traditional courts was inconsistent with the
principle that recognises the status, role and functions of traditional leaders. They
also submitted that the principle of judicial immunity that applies to other members
of the judiciary, such as magistrates and judges, must apply with equal force and
effect to traditional leaders presiding in traditional courts. This lack of judicial
immunity, they averred, was unfair discrimination and a violation of section 9(1)
of the constitution.
To remedy this situation, Contralesa submitted, parliament must pass appropriate
legislation in terms of section 212(2) of the constitution dealing with the status
of traditional courts and the criminal and civil jurisdiction of traditional leaders.
(Section 212(1) of the constitution states that national legislation may provide for a

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672 BARRIE

role for traditional leadership as an institution at local level. Section 212(2) states
that such national legislation may deal with matters relating to traditional leadership,
the role of traditional leaders, customary law and the customs of communities
observing a system of customary law.) This submission that parliament has failed
to comply with its obligation in terms of section 212(2) of the constitution by not
granting traditional leaders judicial immunity for their decisions taken during
the performance of their judicial functions in traditional courts was central to
Contralesa's case.

3 Traditionalcourts
For purposes of this discussion it is not necessary to go into any detail regarding the
traditional courts system in South Africa. In a nutshell, item 16(1) of schedule 6 of
the constitution generally provides for the courts of traditional leaders to continue
to function and to exercise jurisdiction in terms of the applicable legislation. Section
12 of the Black Administration Act 38 of 1927 provides that chiefs and headmen
may be authorised to hear and determine civil claims arising out of statutory,
indigenous and other customary law. Section 20 of the same act confers authority
upon any chief or headman to try at a hearing and to punish any tribal person who
has committed certain specified offences in the area under the control of the chief or
headman. In terms of section 12(4), appeals against a judgment granted in terms of
these provisions lies to the magistrate's court (see Koyana and Bekker "The courts"
in Bekker, Labuschagne and Vorster (eds) Introduction to Legal Pluralism in South
Africa (2002) 141-152; Koyana "Traditional courts in South Africa in the twenty
first century" in Fenrich, Gallizi and Higgins The Future ofAfrican CustomaryLaw
(2011) 227-246).
Traditional courts in South Africa have unique structures, rules, procedures and
jurisdictions that distinguish them from the rest of the South African court system.
The Black Administration Act allocates both civil and criminal jurisdiction to
customary law courts, though with certain limitations. Structurally and procedurally
customary law courts are marked by their informality, simplicity, flexibility and
absence of technicalities. There are no strict rules for the presentation of evidence.
Procedural rules are simplified (Koyana and Bekker 147; Van Niekerk "Indigenous
law, public policy and narrative in the courts" 2000 THRHR 403). The Traditional
Courts Bill (GG 30902 (27-03-2008)), which seeks to update and bring the organs
of traditional justice into line with the human rights and equality provisions of the
constitution, has met with a mountain of criticism and continues to be delayed. As
seen by Bennett ("Customary criminal law in the South African legal system" in
Fenrich, Gallizi and Higgins 363-386) the criticism of the bill is well justified. He
summarises the criticism as follows: Traditional leaders are given wide powers to
enforce customary law within areas of jurisdiction that correspond to the previous
Bantustans. Anyone who, when duly summoned, fails to appear before a traditional
court commits an offence. Rural South Africans where customary law is concerned
are confined to their former tribal homelands (Representation between the Republic
of South Africa and Self-governing Territories Act 46 of 1959) - even those who
have lost all connection with these areas. No provision is made for opting out of the
system. An editorial in Business Day (2-6-2008) pointed out that the bill "instead
of focusing on what unites people, reinforces the constructs of ethnic difference".
The editorial went on to point out that the bill will trap almost half of the country's
population - those living in rural areas - under the authority of unelected traditional

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NOT ONLY CAN THE KING DO WRONG, HE ALSO DOES NOT HAVE JUDICIAL IMMUNITY 673

leaders whose judgments will carry the same weight as those issued by magistrates'
courts.

4 Judgment ofMantame J
As seen by Mantame J, the issues before the court crystallised into (i) judicial
immunity, (ii) failure of parliament regarding its "obligations" in terms of sections
211 and 212 of the constitution and (iii) the reviewing and setting aside of the previous
decision to prosecute the king (503J). These three issues overlap in the sense that
they are all related to the central submission regarding the judicial immunity of
traditional leaders when exercising their judicial functions.

4.1 Judicial immunity

Judicial immunity is not legislated in South Africa (Penricev Dickinson 1945 AD
6 14-15; May v Udwin 1981 1 SA 1 (A) 19E-F). It is public policy which can be
traced back to English law, where the common law courts have recognised judicial
immunity for close to 400 years (HoldsworthA History ofEnglish Law (1926) 376;
Plucknett A Concise History of the Common Law (1956) 497). In South Africa the
only exception to judicial immunity is where a judge's conduct is malicious or in
bad faith (see Claassen v Minister of Justice and ConstitutionalDevelopment 2010
6 SA 399 (WCC)).
Judicial immunity as seen by Mantame J
"is a form of protection afforded to judicial officers by public policy in the performance of their
duties. It protects the judiciary against legal action brought against them for judicial actions,
regardless of their incompetency, negligent conduct or in violation of their status. The purpose
of judicial immunity is to encourage judges to act in a fair and just manner, without regard to
the possible extrinsic harms their acts may cause outside of the scope of their judicial work. This
protection is not at all absolute. Judicial immunity does not protect judges from decisions made
while off the bench. However, while the judiciary may be immune from legal action involving their
conduct or actions, they may still be subjected to criminal prosecutions" (504B).

Mantame J (504H) held that it was common cause that the incarceration of King
Dalinyebo was the trigger for Contralesa approaching the court claiming judicial
immunity for traditional leaders such as the king. It therefore had to be ascertained
whether the king was in reality acting as king when his offences were committed
on 21 October 2009. Mantame J (504J) held that the king, when the offences were
committed, was not king. In fact his brother Patrick, at the time the offences were
committed, was acting as king. This was because the king had been deployed to
the Eastern Cape provincial government as a member of the legislative assembly.
When the offences were committed the king could thus not have acted in a judicial
capacity, factually or legally. There was thus no linkage demonstrated between the
king's actions on 21 October 2009 and any possibility of judicial immunity.
Mantame J (505C-F) pointed out that judicial immunity was never invoked by
the king at the Mthatha high court (S v Buyelekhaya case number 267/04 (ECM)
(unreported) par 158). At that hearing the king even referred to "people's justice"
and referred to what had happened as "jungle justice". This prompted Mantame J to
state that the status and role of traditional leaders is constitutionally entrenched and
that traditional leaders and/or kings are not above the law, especially in the South
African constitutional democracy (505G). This brings to mind the words of Coke

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674 BARRIE

CJ, who quoted Bracton saying "quod rex non debet esse sub homine, sed sub Deo
et lege" (Prohibitionsdel Roy (1607) 12 Co Rep 63).
On the issue of judicial immunity for the king, Mantame J thus found that the
claim by Contralesa that judicial immunity should have extended to the king for his
actions on 21 October 2009 had no factual foundation. Mantame J (505J) scathingly
referred to Contralesa's application as nothing other than a back-door appeal by
the king which has all to do with the incarceration of the king and an attempt to
reverse the findings of the Mthatha high court, the supreme court of appeal and the
constitutional court. He also saw Contralesa's assertion that the threat of prosecuting
traditional leaders for their judicial decisions is unconstitutional but can be cured
by parliament passing appropriate legislation to give them immunity, as peculiar
(506A). Firstly, this is so because the judicial immunity enjoyed by magistrates and
judges is not legislated and it follows that the court cannot instruct parliament to
pass such legislation without any basis being laid. Secondly, it is so because it is
not the business of the court to prescribe to parliament how to legislate. Such a
prescription would infringe on the doctrine of the separation of powers (see My Vote
Counts NPC v Speaker of the NationalAssembly 2016 1 SA 132 (CC) par 28-30;
RautenbachRautenbach-Malherbe ConstitutionalLaw (2012) 58-65). InMantame
J's opinion, if the traditional courts performed their judicial functions according
to the applicable customary law legislation and in line with the constitution, there
would be no need for the traditional leaders to be anxious and fear prosecution
(506D).
Mantame J saw Contralesa's submission that traditional leaders, by not having
judicial immunity from criminal and civil liability, are discriminated against
in violation of section 9(1) of the constitution (everyone is equal before the law
and has the right to equal protection and benefit of the law) as "terse, veiled and
unsubstantiated ... [and] failed dismally to establish a foundation on which such
discrimination is founded" (504F).
In Mbana v Shepstone and Wylie (2015 6 BCLR 693 (CC) par 26-27, 35-36
and Harksen v Lane NO (1998 1 SA 300 (CC) par 54) it was clearly stated that a
complainant who invokes the equality clause to attack a legislative provision or
executive conduct on the ground that it differentiates between people or categories of
people in a manner that amounts to unequal treatment or unfair discrimination must
establish (i) whether the legislation differentiates between people or categories of
people and (ii) whether the differentiation is unfair. The onus is on the complainant to
prove that the conduct complained of is not rational, amounts to discrimination and
that the discrimination is unfair. This foundation clearly was not laid by Contralesa
(see Rautenbach 331-332; Currie and De Waal The Bill ofRights Handbook (2013)
238-240; DevenishA Commentary on the South African Bill ofRights (1999) 35-52).

4.2 Is parliament obligated under section 211 and 212 of the constitution to pass
legislation that protects the constitutional rights of traditional leaders who
operate under the customary law system?
It was submitted by Contralesa that because parliament had not passed appropriate
legislation in accordance with sections 211 and 212 of the constitution, traditional
leaders are not able to discharge their judicial functions without fear, favour or
prejudice. This submission was central to Contralesa's argument that if parliament
had passed such legislation, which it is obliged to do, the judicial immunity of
traditional leaders would be put beyond all doubt. Hence it was submitted that
parliament must be ordered to pass such legislation.

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NOT ONLY CAN THE KING DO WRONG, HE ALSO DOES NOT HAVE JUDICIAL IMMUNITY 675

Sections 211 and 212 of the constitution read as follows:

"211(1) The institution, status and role of traditional leadership, according to customary law, are
recognized, subject to the Constitution.
(2) A traditional authority that observes a system of customary law may function subject to any
applicable legislation and customs, which includes amendments to, or repeal of, that legislation or
those customs.
(3) The courts must apply customary law when that law is applicable, subject to the Constitution and
any legislation that specifically deals with customary law.
212(1) National legislation may provide for a role for traditional leadership as an institution at local
level on matters affecting local communities.
(2) To deal with matters relating to traditional leadership, the role of traditional leaders, customary
law and the customs of communities observing a system of customary law

-
(a) national or provincial legislation may provide for the establishment of houses of traditional
leaders; and
(b) national legislation may establish a council of traditional leaders."

A reading of section 212(1) indicates that the section is permissive and not
obligatory. Nowhere does section 211 or section 212 refer to anything relating to
traditional courts or their status or their judicial role. Nowhere is there an obligation
imposed on parliament to pass the type of legislation envisaged by Contralesa. This
was precisely the finding of Mantame J (508H). Mantame J went further (509B)
and pointed out that in compliance with section 212 parliament had enacted the
Traditional Leadership and Governance Framework Act 41 of 2003, which provides
for the institution, status and role of traditional leadership in accordance with
customary law. Parliament had thus fulfilled its obligation in terms of section 212.
The court could thus not compel parliament to legislate in the manner preferred
by Contralesa, as that would clearly interfere with the principle of separation of
powers. Should there be a legislative deficiency, in that no mechanism was in place
dealing with judicial conduct of traditional leaders when exercising their judicial
authority, Mantame J held (509D), Contralesa could go no further than lay a
complaint and challenge the Traditional Leadership and Governance Framework
Act constitutionally (see the My Vote Counts case par 20 and Mazibuko v City of
Johannesburg2010 4 SA 1 (CC) par 72).
Mantame J (510C) consequently held that the submission of Contralesa to order
parliament to legislate in a certain way had no merit and was rejected.

4.3 Reviewing and setting aside the decision of the national director to prosecute
the king
Contralesa submitted that the previous decision of the national director to
prosecute the king for exercising his criminal jurisdiction, violated section 211(1)
of the constitution in that it violated the principle of judicial immunity extended to
traditional leaders when exercising theirjudicial powers. Further, it asserted that the
decision to prosecute the king violated his right to dignity guaranteed by section 10
of the constitution. Thirdly, it argued that the decision to prosecute the king should
be set aside because his actions were not offences under the Criminal Procedure Act
read with the Transkei Penal Code.
Mantame J (510E-J) dealt with these three submissions tersely - which is an
indication of the merits of the submissions. Firstly, he held that the king - as set out
above - was not acting in his judicial capacity as a king, and that judicial immunity
cannot apply to a person who is not performing his judicial functions. Secondly, he

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676 BARRIE

held, the king never raised his right to dignity in the Mthatha high court. Thirdly,
the king was not charged under the Criminal Procedure Act because that act was
not applicable to the Transkei. In fact the king was charged under the Transkei Penal
Code 9 of 1983, which continued to be applicable in the former Transkei (despite the
current constitutional order). Fourthly, he held, the matter involving the prosecution
of the king was res judicata. The king had exhausted all legal avenues when his
appeal to the constitutional court was refused and Contralesa should not attempt to
resuscitate the issue by coming through the back door.
Mantame J in concluding his judgment held that Contralesa's application to
the court had no foundation in fact or in law and that the application amounted to
nothing other than a "swaggering show of courage on shaky ground" (511B).

5 The judgment ofDavis J

Davis J concurred with Mantame J. He held (511H) that it was common cause that
no order of court could grant judicial immunity to the king, that such an order was
not legally competent and that there was no way in which the court could fashion an
order which would disturb the conviction and sentence of the king. He associated
himself with the views of Mantame J in this regard.
He was, however, constrained to say (512A) that although traditional courts do
not operate in the same fashion as other courts, the fact that judicial immunity is
not extended to traditional leaders exercising their judicial function is a failure to
embrace customary law fully into the legal system of a democratic South Africa. As
seenby Davis J (512B-J) the courts have asserted that customary law enjoys a status
in South Africa that enjoys and demands equal respect (Shilubana v Nwamitwa
2009 2 SA 66 (CC) par 42; Alexkor Ltd v The Richtersveld Community 2004 5 SA
460 (CC) par 51). The only caveat was that customary law must accord with the
constitution. This acceptance of the status of customary law in South Africa, despite
a continued distinction between the judicial functions of traditional leaders and
magistrates and judges, Davis J held, leads to judicial frustration due to the lack of
legal transformation (see Himonga "The future of living customary law in African
legal systems and beyond with special reference to South Africa" in Fenrich, Gallizi
and Higgins 31-57).
On the submission by Contralesa that parliament is obliged by virtue of sections
211 and 212 to pass legislationto put traditional leaders, when exercising theirjudicial
functions on the same footing as magistrates and judges when it comes to judicial
immunity, Davis J (513 H), similarly to Mantame J, held that there is no mandatory
obligation on parliament to pass the legislation sought by Contralesa. He also argued
that parliament had complied with sections 211 and 212 of the constitution when it
enacted the Traditional Leadership and Governance Framework Act as previously
held by Jafta J in BapediMarota Mamone v Commission on TraditionalLeadership
Disputes and Claims (2015 3 BCLR 268 (CC) par 15).

6 The judgment of Hiophe JP

Hlophe JP, in minority judgment, concluded that sections 211 and 212 of the
constitution read together with section 34 (access to a court), section 38 (the right
to approach a competent court alleging that a right in the bill of rights has been
infringed) and section 165 (the vesting of judicial authority in independent courts)
do indeed impose a mandatory duty on parliament to pass specific legislation,

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NOT ONLY CAN THE KING DO WRONG, HE ALSO DOES NOT HAVE JUDICIAL IMMUNITY 677

and that such specific legislation must deal with the administration of justice in
traditional communities and must provide for judicial immunity for traditional
leaders when acting as judicial officers. According to Hlophe JP the court should
grant a declaratory order confirming parliament's mandatory duty to pass such
specific legislation (493A-D). Hlophe JP conceded that the Traditional Leadership
and Governance Framework Act was passed by parliament in furtherance of sections
211 and 212 of the constitution, but that this act did not address everything necessary
for the institution, status and role of traditional leadership. Hlophe JP therefore was
of the view that parliament had failed in its duty to enact specific legislation in
this regard. He (467B) was of the opinion that the conviction and sentence of king
Dalinyebo had heightened the constitutional necessity for parliament to ensure that
there is such appropriate legislation.
As seen by Hlophe JP, the present constitutional order makes it abundantly
clear that the traditional system of jurisprudence and customary law is recognised
in South African law and our courts must recognise and adhere to the relevant
principles where applicable (4781). He also argued that the constitutional status
of traditional courts is referred to in sections 165 and 166 of the constitution
(477F). But, finds Hlophe JP, currently traditional courts are not independent and
traditional leaders cannot be said to operate in courts that are independent and free
from interference - such as other courts. He finds that because traditional courts
do not enjoy the constitutional attributes of independence, their judicial officers
(traditional leaders) cannot function without fear, favour or prejudice (482J). It is
thus mandatory, not discretionary, for parliament to pass legislation recognising
the judicial independence of traditional courts. Such judicial independence will
then automatically lead to judicial immunity. This means that traditional leaders
when acting in a judicial capacity will, like judges and magistrates, have immunity
against actions for damages and criminal liability arising out of the discharge of
their judicial functions (485A).
Hlophe JP held that the court should issue a declaratory order to the effect
that parliament has a mandatory duty to pass a law specifically dealing with the
administration of justice by traditional leaders when adjudicating disputes in their
courts in accordance with customary law (493G). As seenby Hlophe JP, the fact that
traditional leaders are not afforded judicial immunity for their judicial acts violates
their constitutional rights and undermines judicial independence in traditional
communities (492F).
In the course of his minority judgment (485-491) Hlophe JP gives an incisive
overview of the position of judicial immunity in South Africa as illustrated in
decisions over the last 80 years, and also sets out the position in English and United
States courts.

7 The TraditionalCourts Bill

The entire system of customary law in South Africa is set to be reformed by the
Traditional Courts Bill. The processing of the bill has been delayed "tremendously",
to quote Mantame J (500E). The purpose of the bill is to update and bring the organs
of traditional justice into line with the human rights and equality provisions of the
constitution (Koyana 230). The draft bill governs nearly every aspect of customary
law courts; training of traditional leaders; civil and criminal jurisdiction, procedure,
sanctions and their enforcement; appeals; recording of proceedings; misconduct of
presiding officers and punishable offences. The draft bill, if passed, would be the
most extensive statutory attempt to govern and regulate the system of traditional

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678 BARRIE

justice in South Africa. The draft bill, however, as pointed out by Mantame J
(500D) does not address the issue of judicial immunity for traditional leaders when
exercising judicial functions.
One can only but surmise why this should be so and if the specific judicial
immunity debate is not one of the reasons for the passing of the draft bill to be
delayed for such an inordinately long period. Be that as it may, if Contralesa's had
been a thinly veiled attempt to get the court to mandate parliament to pass legislation
giving traditional leaders judicial immunity and include such judicial immunity in
the draft bill, this attempt would not have succeeded. As held in Oriani-Ambrosini
v Sisulu, Speaker ofthe NationalAssembly (2012 6 SA 588 (CC) par 54, 84) and the
My Vote Counts case (par 156) the court cannot dictate to parliament how it should
regulate its own business. That would be an attempt to venture impermissibly onto
parliament's terrain, which is proscribed by the doctrine of separation of powers.

8 Separation ofpowers
Contralesa's unsuccessful application brings to the fore the question whether those
who preside over traditional courts respect the constitutional principle of separation
of powers. Traditional leaders are, first and foremost, executive officials. They do,
however, exercise a judicial function when presiding over customary courts. Are
traditional leaders thus not wearing two hats - one judicial and one executive? Does
this not violate the independence required of officials acting in a judicial capacity?
In Bangindawo v Head ofthe Nyanda RegionalAuthority; Hlantlalalav Headofthe
Western Tembuland Regional Authority (1998 3 SA 262 (Tk)) it was held that the
concept of the independence of the judiciary as part of the doctrine of separation
of powers was unknown to African customary law. Madlanga J held (273B-F) that
there was no reason whatsoever for the imposition of Western conceptions of the
notions of judicial impartiality and independence in the African customary setting.
Can the inference be made that the believers in and supporters of African customary
law trust and rely on the impartiality of the chief or king or heads of tribal authorities
when exercising judicial functions? It is therefore submitted that in the decision
under discussion the court was remiss in not using a golden opportunity, given the
unique facts of the case, to elucidate on the separation of powers doctrine in South
African customary law.
It has been suggested that the separation of powers doctrine is a Western-
constitutional/legal concept which should not be imposed on a traditional
constitutional system which has no similar concept (see Koyana 233; Bennett
A Sourcebook of African Customary Law for Southern Africa (1991) 56). If this
suggestion has any merit the moot question arises: Should the Western-constitutional
/ legal concept ofjudicial immunity (so eruditely set out by Hlophe JP 485D-491E)
be imposed on traditional courts which have no similar notion? Van Niekerk (403)
poses the question whether the imposition of Western values on the indigenous legal
order might not lead to the stagnation and eventual disappearance of a system of law
by which millions of South Africans live.
It may not be inopportune to comment briefly on the doctrine of separation of
powers. Rautenbach succinctly puts it thus: "The doctrine of the separation of
powers entails that the freedom of the citizens of a state can be ensured only if
a concentration of power, which can lead to abuse, is prevented by a division of
government authority into legislative, executive and judicial authority..." (59).
In practice varying degrees of separation may occur. In the British Westminster
system an overlap exists and the separation of powers is relative. An example of

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NOT ONLY CAN THE KING DO WRONG, HE ALSO DOES NOT HAVE JUDICIAL IMMUNITY 679

this is that cabinet ministers are also members of parliament and execute the will
of the majority in the commons. In addition to this the house of lords is the highest
judicial body in the state. In the American constitutional system the separation of
powers has been taken the furthest (Devenish 13). Federal legislative authority is
vested in congress. Federal executive authority is vested in the president. Judicial
authority is vested in the courts. The courts may invalidate laws made by congress
that conflict with the constitution. Some measure of overlap, however, does exist.
Congress may for example impeach the president for misbehaviour. The president
may veto legislation by congress.
In South Africa the separation of powers forms the basis of the relationship
between the legislative, executive and judicial authority (s 43(a), 85(1) and 165(1)
of the constitution). However, a large degree of overlapping still exists. Bills
adopted by parliament must be assented to by the president. Judges are appointed
by the executive. In Ex parte Chairperson of the ConstitutionalAssembly: in re
Certification of the Constitutionof the RSA, 1996 (1996 10 BCLR 1253 (CC); 1996
4 SA 744 (CC) par 106-113) the court held that no system of separation of powers
is absolute, because there are continuous checks and balances in a democracy that
impose restraints by one branch of government on another. The court has regularly
handed down judgments on the separation of powers. (Executive Council, Western
Cape Legislature v President of the RSA 1995 4 SA 877 (CC); South African
Association of PersonalInjury Lawyers v Heath 2001 1 SA 883 (CC); S v Dodo
2001 3 SA 382 (CC); International Trade Administration Commission v SCAW
South Africa (Pty) Ltd 2010 5 BCLR 457 (CC); 2012 4 SA 618 (CC) and Glenister
v President of the RSA 2009 1 SA 287 (CC).) Despite the overlapping of powers
inherent in the separation-of-powers doctrine in practice, the motivation to prevent
the over-concentration of government authority in a single government body
remains of paramount importance.
Although the doctrine of separation of powers is related to constitutional legal
systems which have their roots in the Westminster constitutional system, it is of
interest to note that the doctrine is also a controlling feature of modern German
constitutionalism and is deeply anchored in Germany's constitutional tradition.
Separation of powers was expected to moderate the exercise of power at all
levels of government so as to prevent the emergence of political absolutism. The
separation-of-powers doctrine was calculated to lock liberty into the constitutional
state principle (Rechtsstaat).The principle of separation of powers finds its clearest
expression in section 20(2) of the constitution (Grundgesetz), which declares that
all state authority (Staatsgewalt)shall be exercised by specific legislative, executive
and judicial organs. It is accepted, however, that the doctrine cannot be realised in a
pure form and is rather a system of reciprocal controls marked by numerous checks
and balances. As seenby Kommers and Miller (The ConstitutionalJurisprudenceof
the FederalRepublicofGermany (2012) 152), German constitution-makers believed
that they could secure liberty and avoid oppressive government by setting up a
system of shared powers similar to the constitutional arrangements in the United
States. (For a general discussion of separation of powers in Germany see Hahn
"Uber die Gewaltenteilung in der Wertwelt des Grundgesetzes" 1965 Jahrbuch des
offentlichen Rechts 15 and Herzog "The separation and concentration of power in
the basic law" in Kirchhof and Kommers (eds) Germany and its Basic Law (1993)
391.) Hesse (Grundzige des Verfassungsrechts der Bundesrepublik Deutchsland
(1995) 214) states that the separation of powers reveals the details of the political
structure, confers specified responsibilities and has a rationalising effect. Hesse
argues further that the separation of powers specifies and coordinates the more

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active elements of political leadership and decision-making as well as the more static
elements of technical and administrative rule-making, and in addition safeguards
the constitutional state principle in the political arena.

9 Conclusion
Despite the rejection of all of Contralesa's submissions made to the Western Cape
high court, this decision makes for compelling reading. Firstly, a renewed analysis
of judicial immunity was undertaken. Secondly, the relevance of judicial immunity
to traditional leaders when exercising judicial functions was analysed. Thirdly, the
role of customary law and its place in our constitutional dispensation was addressed.
Fourthly, the application of the doctrine of separation of powers was applied to a
unique set of facts.
The decision should promote a renewed discussion and understanding of South
African customary law as it now exists in a pluralistic legal system with competing
bodies of constitutional law, statutory law and common law. The decision should also
promote a discussion of customary law and its continued relevance in South Africa,
together with a discussion of the role and power of traditional leaders. The critical
issue which remains to be addressed is how to ensure that customary law develops
in line with the constitution and the human rights embodied therein. Will customary
law in South Africa continue to evolve consistently within the context and norms
of the constitution? (See the Alexkor case par 103; the Shilubana case par 81; Bhe v
MagistrateKhayelitsha 2005 1 SA 580 (CC) par 10.) This would appear to be the
major area to which South African customary law scholarship should be directed
(see Himonga 57; Himonga and Bosch "The application of African customary law
under the constitution of South Africa: problems solved or just beginning" 2000
SALJ 306 340).
GN BARRIE
University ofJohannesburg

CONFORMITY OF DEMANDS SUBMITTED UNDER INDEPENDENT

GUARANTEES

LombardInsurance Co Ltdv Schoeman 2018 1 SA 240 (GJ)

1 Introduction
The conformity of demands submitted under independent (demand) guarantees
has been a dominant theme over the past decade in South African jurisprudence.
(See in this regard, for example, Compass Insurance Co Ltd v Hospitality Hotel
Developments (Pty) Ltd 2012 2 SA 537 (SCA); State Bank of India v Denel SOC
Ltd 2015 2 All SA 152 (SCA); Nedbank Ltd v Procprops 60 (Pty) Ltd 2013 ZASCA
153 (20 Nov 2013); Group Five Construction (Pty) Ltd v MECfor Public Transport,
Roads and Works, Gauteng 2015 5 SA 26 (GJ); Kristabel Developments (Pty) Ltd
v Credit GuaranteeInsurance CorporationofAfrica Limited 2015 ZAGPJHC 264
(20 Oct 2015); University of the Western Cape v ABSA Insurance Company 2015
ZAGPJHC 303 (28 Oct 2015). This also applies to academic writing. (See eg Kelly-

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