Judge Hendricks in the hot seat
The North West High Court is described by Aninka Claassens and Boitumelo Matlala in a recent publication as “thwarting the repeated and desperate attempts of community leaders to try to preserve their mineral assets and land base, and to hold traditional leaders and government to account’. One of the judges, Ronald Hendricks, who has been in the thick of these cases, will again be interviewed for a leadership position on the bench for the North West High Court.
In one of Judge Ronald Hendricks’s cases we see the results of a falling out between two previously staunch allies, Kgosi Nyalala Pilane, the officially appointed chief of the Bakgatla ba Kgafela ‘tribe’ in South Africa, and ‘paramount chief ’ or Kgosikgolo Kgafela Kgafela, the deposed chief of Bakgatla ba Kgafela in Botswana. Until recently, Nyalala Pilane provided extensive financial support to Kgafela on the basis that the latter was paramount over all Bakgatla ba Kgafela, including those in South Africa. A complicated conflict ensued, resulting in Kgafela releasing an internal audit report that details the scale of unauthorised, reckless and extravagant spending under Nyalala’s watch. The report revealed a lack of accounting systems resulting in a multi-million rand contracts with nonexistent service providers, and payments for services not rendered. Some employees were routinely paid double salaries. Substantial amounts of money were spent on extravagant overseas trips for the kgosi and his close associates. Nyalala Pilane was previously convicted for theft and fraud in 2008 and but that conviction was set aside on appeal in September 2010 by Judges Hendricks and Kgoele.
The same Kgosi Nyalala Pilane has successfully obtained several court interdicts to stop community members from being allowed to meet, including six interdicts against meetings of the ‘royal family’. In this case the community placed a newspaper advertisement calling on members of the Bakgatla – Ba – Kgafela Royal Family to attend an urgent meeting. Pilane sought to interdict the meeting.
The community then brought a counter – application to compel the applicants to submit financial documents, and to refer the matter to the Premier to appoint a commission of inquiry into allegations of financial maladministration by the Kgosi. The effect of Hendricks’ decision to uphold Pilane’s application to interdict the meeting was that only the most senior traditional leader can call a meeting of the community, even when it is a meeting to hold that very leader to account.
“Judge Hendricks found that Nyalala Pilane, being ‘the nominated representative of the kgosikgolo in South Africa, has the necessary standing and clear right as a member of the royal family, as defined in terms of Bakgatla custom and law, to bring this application.’ This is a disconcerting and novel interpretation of customary law – that membership of a royal family, and chiefly status depends on the discretion of a ‘paramount’ based in another country. … Judge Hendricks’s interpretation has far-reaching consequences for the concept and exercise of chiefly accountability.”
Platinum, poverty and princes in post-apartheid South Africa: new laws, old repertoires”, New South African Review 4 (2014), 117
The lack of financial accountability that was condoned and unleashed by this judgment has seen billions disappear from the coffers of the Bakgatla ba Kgafela. The far reaching consequences are currently being investigated by the Maluleke Commission sitting in North West. The premise of the judgement itself has been ruled incorrect by the Constitutional Court on the basis of the right to freedom of expression and information. The Court held that the interdicts infringed basic rights to freedom of expression, assembly and association, as well as the constitutional principle of accountability. The interview of Judge Hendricks will hopefully shed some light on his disconcerting and novel approach to customary law, and freedom of speech.