When the King can do a lot of Wrong: Some Reflections on S v Dalindyebo 2016 (1) SACR 329 (SCA)

Abstract

In this note, the author discusses the trial of King Buyelekhaya Dalindyebo of the AbaThembu tribe, his conviction and sentence—and the aftermath thereof. He examines the legal and constitutional parameters of the immunity of traditional leaders from criminal and civil liability in the exercise of their official functions. The author also attempts to answer some of the questions that are raised by the judgment, albeit tangentially, about the relevance and applicability of the maxim rex non potest peccare in South Africa. The note also examines the maxim’s British historical roots and its points of contact with the pre-colonial, South African version. The author’s conclusion is that despite South Africa having been a British colony at some point, the maxim has never been part of the country’s legal history and constitutional framework. Even if it were to be assumed that the maxim was an integral part of pre-colonial South African constitutional jurisprudence, such as it was, he contends that it would now be palpably inimical to the values that are embodied in the Constitution and the Bill of Rights.