Presidential Pardon for AbaThembu king? Waiting on the wheels of justice

A decision on whether AbaThembu King Buyelekhaya Dalindyebo will leave prison a free man and without a criminal record now rests with President Cyril Ramaphosa.

On Thursday, the Minister of Justice and Correctional Services Michael Masutha, in a statement, confirmed that a recommendation for Dalindyebo's pardon was made to the President.

Dalindyebo was sentenced to 12 years in jail by the Eastern Cape High Court in 2009 after being found guilty on seven counts of kidnapping, three for assault, three for arson and one each for defeating the ends of justice and culpable homicide.

Khusela Diko, spokesperson of the Presidency confirmed that the recommendations were received by the president’s office but was yet to provide a detailed reply to questions sent to her by Daily Maverick.

According to the Justice Ministry’s spokesperson Max Mpunzana, a lengthy constitutional process was followed by Masutha before submitting the recommendations to the Presidency.

News24 has uncovered that advocate Mthunzi Mhaga, a former justice department spokesperson and advocate, assisted Dalindyebo to complete application forms for the pardon in the weeks leading up to his official appointment and billed the state attorney for these services. News24 obtained detailed invoices and documents relating to Mhaga's appointment.

They show that Mhaga started work in December 2018, a month before Masutha's chief of staff Kagiso Moleme sent a letter to the East London state attorney, dated 21 January 2019, requesting that Mhaga be briefed. This was due to his “familiarity with the matter and knowledge of the traditional legal systems,” Moleme wrote.

Mhaga, who is now in private practice, worked at the justice department for 17 years. He was paid at least R191,596 to deliver a legal opinion to Masutha concerning the application.

“Mhaga is a private lawyer, he doesn't work for the Office of the State Attorney, nor does he assist King Dalindyebo,” Mpunzana said on Thursday.

He maintained that the process of Mhaga's appointment was above board. On Wednesday, Mhaga referred queries to the justice ministry.

The invoices and detailed billing show that Mhaga assisted Dalindyebo to apply for the pardon and further show that he held extensive consultations with not only the king but lobbyists for his release and his victims.

“It’s the king’s right to apply for a pardon. The Cabinet member responsible for the administration of justice – Minister of Justice – will then administer the pardon. Part of that involves issuing victim consultations, trying to facilitate dialogue between the king and victims. And then factoring the victim’s views into the pardon. Afterwards, the minister will then make the recommendations to the President,” Mpunzana said.

Although it is the king himself that has applied for this pardon, the Congress of Traditional Leaders in South African (Contralesa) has been calling for the pardon of the AbaThembu king since January 2016.

Speaking to Daily Maverick, Contralesa’s secretary general, Zolani Mkiva said: “We were part and parcel of ensuring that the processing of that application actually goes through. We welcome the fact that it is at its advanced stage now and we hope that the President will make an announcement any hour, any day from now. We are waiting for him to announce the release of the king,” Mkiva said.

The application was submitted to the Department of Justice and Constitutional Development for processing and to Masutha to make a recommendation to the President whether to grant a pardon or not.

“We can confirm that the initial application for a pardon for King Dalindyebo was made by Contralesa in January 2016. The King Dalindyebo has himself also subsequently made an application for a pardon,” a statement released by the Ministry of Justice states.

“The Minister sought the advice of external legal counsel on the application including facilitation of interaction with the victims who expressed their views on the pardon,” the statement read.

Mpunzana said that recommendations made by the minister form part of the process, ultimately the decision lies with the president as enshrined in sections 84 (2) j) of the Constitution.

Ramaphosa is under immense pressure to release Dalindyebo from prison or face “widespread mobilisation”.

Dalindyebo's spokesperson, Prince Mthunzi Ngonyama, told News24 that a meeting was held between him and the monarchy in the Eastern Cape earlier this week.

It was decided that they would give Ramaphosa an ultimatum: release Dalindyebo or face a campaign to encourage protests and a boycott of the national elections on 8 May, across the country.

“If [the President] cannot move on this matter within seven days, they will have to mobilise their supporters, their people in the Eastern Cape and other kings who have shown interest in other provinces,” said Ngonyama.

“Their people should also boycott elections or not participate in the elections. If they do participate, they need to choose other parties, not the ruling party,” he added.

Dalindyebo still maintains his innocence.

“In the case surrounding the king, people reported issues of being harassed by others and issues of rape, which angered the community and they wanted the king to intervene,” said Ngonyama.

“Those people could have taken the matter to the police, but they say the king is the one who can resolve the matter. Whether he acted beyond his jurisdiction, his intention was to try to stabilise and bring a sense of security in the area.”

Earlier this month, the Congress of Traditional Leaders of South Africa sought a meeting with the ANC over a number of issues, including asking for the release of Dalindyebo. DM