Thursday, May 12, 2011
Controversial Bakgatla paramount chief, Kgafela Kgafela and his co-accused have appealed against the High Court ruling in March that he has no powers to flog people indiscriminately.
"Dikgosi cannot act outside the constitution and laws prescribed by Parliament when all other functionaries of the state act within the prescribed statutory limitations. To do otherwise would clearly be unconstitutional," the court had ruled. "This answers the question of go kgwathisa. The short answer to this question is that it has to be applied by a court acting in accordance with and within the parameters of the enabling Act of Parliament," the High Court said. The decision was made by a three-man bench of Chief Justice Maruping Dibotlelo, Modiri Letsididi and Isaac Lesetedi.
In their grounds of appeal, Kgafela's lawyers from Langwane Mmekwa Attorneys state that the judges erred in finding that he did not have authority to exercise the powers of a kgosi.
They state that the judges relied on evidence that was not before the court.
The attorneys fault the judges' ruling that the statutory enactments affecting bogosi restricted the scope of the powers of the kgosi under traditional customary law. It is their contention that the enactments have the effect of enlarging such powers.
They point out that the judges erred in holding that a kgosi cannot exercise his criminal and administrative jurisdiction under traditional customary law outside existing statutory enactments such as Bogosi Act and Customary Act. They said none of the enactments have such restrictions. The appellants are seeking relief from the Court of Appeal to set aside the High Court ruling.
They want the superior court to declare that under customary law, Kgafela had the power to impose corporal punishment and persons designated by him had the power to carry out the sentence imposed. They want the Court of Appeal to rule that they have not been deprived of this power by the statutory enactments upon which the state relied on. The state should also be ordered to pay the costs of the appeal.
Kgafela's attorney, Banyatsi Mmekwa confirmed that they have appealed against the High Court ruling. Kgafela and his co-accused have been charged with the unlawful flogging of members of the public in Mochudi.