Royal Crown Council condemns Chief Ndiweni judgement

The Royal Crown Council unreservedly condemns the conviction and subsequent sentencing of Chief Ndiweni to an effective 18 months in prison after 6 months of the 24 months were suspended on condition he doesn't commit a similar offence within 5 years while the other 23 residents of Ntabazinduna who were jointly charged with the Chief were sentenced to 24 months in prison all of which was suspended as follows: 6 months were suspended for 5 years on condition they don't commit a similar offence during that time, and, 18 months were suspended on condition they do community service of 525 hours to begin on Monday 19 August 2019.

However one looks at the judgment. it boggles the mind how an independent and objective person presiding over an Independent judicial body would ever arrive at this decision based on the factual and legal basis of the alleged violations. Both the conviction and the sentence are wrong, outrageous, totally irrational and elicit a deep sense of shock in any reasonable person, especially on a charge of alleged malicious damage to property worth RTGS$300.

Where a chief is alleged to have misdirected himself on a point law or fact in a customary or community court setting. the established procedure is for his decision to be taken on appeal or review in an appropriate court, in this case the magistrate's court. He should never be arrested. Chiefs don't preside over cases in their individual capacities but they do so in their official capacities and it should never be accepted that a chief is jailed for a judgment he reasonably believed to be correct in his interpretation of the culture, traditions, customs and practices of his people. To imprison a chief for the correct, or even wrong, interpretation, of his people's culture, customs, traditions and practices is to imprison the culture, customs, traditions and practices of his people. In a chiefs court decisions are community decisions; they are peoples' decisions and are taken as best as possible within the principles of co customary rule of law Can you imagine us, jailing magistrates, c,1 and judges who make judgments we don't like?

The Chief Ndiweni case is an attack on the integrity and dignity of the traditional leadership and customary law court system and will render the system important. It is a profoundly dangerous precedent. If we set ourselves on a slippery road of jailing magistrates, judges and chiefs exercising a Judicial function for having made decisions we don't like and allow people to open criminal cases against presiding officers instead of appealing adverse decisions as is the civilised norm, we will destroy the fabric of the rule of law, enact anarchy and undermine the very foundation of the country as a constitutional republic.

We have a very well established court appellate structure, consequently there is no reason why aggrieved parties should not use it. Persons who are aggrieved with court decisions, including customary court decisions, must avail themselves of the protections our appellate system affords and not resort to opening criminal cases against presiding officers without evidence criminal wrongdoing.

Jailing chiefs in office should not be taken lightly; It should only happen as a last resort for a clear criminal and corrupt abuse of office. Needless to say, in the Chief Ndiweni case this has not been alleged nor are there any allegations that the Chief acted out of criminal malice. Therefore, any misdirections on fact and/or law should have been addressed through standard processes, and not incarceration. The friction that exists between the Roman Dutch Law and our traditional way of life should be resolved not by intimidation but through proper channels.

Furthermore, it should never happen that whenever chiefs make decisions in their official capacities and the matter is appealed or taken on review by the aggrieved party the Chief Is summoned to defend his judgment in person in the magistrate's court It is the record of the customary court that should, like the rest of the court hierarchy, be the basis of the hearing at the next level.

No magistrate or Judge is ever summoned to a higher court to come and personally defend his or her official decision. Why should chiefs be treated differently? This anomaly must be fixed without any further delay.

In view of the foregoing. there is no reason why the Chief should be in prison, let alone serving such an unreasonable sentence. We therefore call on the Chiefs legal team to Immediately Initiate a process of appealing the decision with a view to securing his freedom without delay while other pressure avenues are being explored.