TRADITIONAL (CUSTOMARY)

COURTS

IN

SOUTH AFRICA

Christa Rautenbach

Faculty of Law

POINTS FOR DISCUSSION

• Part 1: General introduction to the

pluralistic (mixed) legal system of

South Africa and the legal framework

of customary courts.

• Part 2: Contemporary developments:

the 2008 Traditional Courts Bill

(B15/2008).

PART 1: SA LEGAL SYSTEMS IS

PLURALISTIC (MIXED)

Customary law(s)(indigenous character)

Mostly uncodified and

diverse

• Official version

Customs & usages

Legislation

Court decisions

Textbooks

• Living customary law

Common law(western character)

Mostly uncodified but uniform

• Roman-Dutch law (old

authorities)

• English law influences

• Adapted by legislation

• Developed by court

decisions

STATE LAW PLURALISM

SUPREME CONSTITUTION

WHAT IS CUSTOMARY LAW?

• Contemporary definition in the Recognition of

Customary Marriages Act 200 of 1998: “the customs

and usages traditionally observed among the

indigenous African peoples of South Africa and

which form part of the culture of those peoples”.

• Problems of definition (Indigenous? Culture?

Traditionally observed?).

• Customary law is not unified – a variety of

customary law systems exist.

• Debate between official and living versions of

customary law.

RECOGNITION OF CUSTOMARY LAW

• Controversial Black Administration Act 38 of 1927

recognised and applied customary law nationally.

• Partly repealed except for sections dealing with

customary courts.

• Law of Evidence Amendment Act 45 of 1988 gives

discretion to courts to apply customary law if not

opposed to public policy (repugnancy clause).

• SA Constitution (supreme law) - Section 211(3):

“The courts must apply customary law when that law

is applicable, subject to the Constitution and any

legislation that specifically deals with customary

law.”

WHEN IS CUSTOMARY LAW APPLICABLE?

S 211(3) Mandatory: courts do not have discretion – must apply.

3 Qualifications:

• It must be applicable – when is it applicable? This is the conflicts of law question.

• It must be subject to the Constitution. When is it subject to? When it is compatible, i.e. the human rights question.

• It must be subject to any other legislation that specifically deals with customary law. Similar to the common law, customary law can also be adapted by means of legislation.

STATUS OF CUSTOMARY LAW

• Alexkor Ltd v Richtersveld Community 2003 (12) BCLR1301 (CC): While in the past indigenous law was seenthrough the common law lens, it must now be seen asan integral part of our law. Like all law it depends for itsultimate force and validity on the Constitution. Itsvalidity must now be determined by reference not tocommon law, but to the Constitution.

• Bhe v Magistrate Khayelitsha 2005 1 SA 580 (CC): Certain provisions of the Constitution put it beyond doubt that our basic law specifically requires that customary law should be accommodated, not merely tolerated, as part of South African law.

• Gumede v The President of the RSA 2009 3 SA 152 (CC): Customary law lives side by side with the common law and legislation.

PLURALITY IN THE COURT SYSTEM

LEGAL FRAMEWORK FOR OFFICIAL CUSTOMARY

COURTS

1. Constitutional provisions

• Section 211 of the 1996 Constitution

(1) The institution, status and role of traditional leadership, according to

customary law, are recognised, subject to the Constitution.

(2) A traditional authority that observes a system of customary law may

function subject to any applicable legislation and customs, which includes

amendments to, or repeal of, that legislation or those customs.

• Item 2(1) of Sch 6: All law that was in force when the new Constitution

took effect, continues in force, subject to- (a) any amendment or repeal;

and (b) consistency with the new Constitution.

• Item 16(1) of Sch 6: Every court, including courts of traditional leaders,

existing when the new Constitution took effect, continues to function and

to exercise jurisdiction in terms of the legislation applicable to it, and

anyone holding office as a judicial officer continues to hold office in terms

of the legislation applicable to that office, subject to- (a) any amendment or

repeal of that legislation; and (b) consistency with the new Constitution.

LEGAL FRAMEWORK FOR OFFICIAL CUSTOMARY

COURTS

2. Black Administration Act 38 of 1927

2.1 Section 12: Civil customary courts

• Minister gives authority to a traditional leader (chief) or headman to

hear and determine civil claims arising out of customary law between

Blacks (except divorce cases).

• The traditional leader may delegate his authority to someone else.

• Execution of judgment is in accordance with prescribed procedural

rules. Eg.

– Only customary law issues and according to customary law rules.

– Only between Blacks.

– No legal representation.

– Written records.

– Judgment executed in terms of customary law – if not, may go to the

magistrates’ court to apply for enforcement (same as common law).

– Appeal to a magistrates’ court is possible.

LEGAL FRAMEWORK FOR OFFICIAL CUSTOMARY

COURTS

2. Black Administration Act 38 of 1927

2.2 Section 20: Criminal customary courts

• Minister gives jurisdiction to a traditional leader (chief) or headman to

try and punish any Blacks who has committed an offence in the area

of the traditional leader or headman.

• Offences are not limited to customary law offences.

• Does not exclude jurisdiction of a common law court – double

jeopardy does not exist.

• Execution of punishment is limited, eg. May not give death sentence;

mutilate; cause grievous bodily harm; imprison; give a fine in excess

of R100 or two head of large stock or ten head of small stock; or

impose corporal punishment.

• Failure to pay a fine may be referred to a magistrates’ court to

sentence offender to imprisonment of max 3 months.

• Appeal to magistrates’ court is possible.

LEGAL FRAMEWORK FOR OFFICIAL CUSTOMARY

COURTS

3. Former homelands’ Acts, e.g.:

• Bophuthatswana Traditional Courts Act 29 of 1979

• Transkei Chiefs Courts Act 6 of 1993

• KwaNdebele Traditional Authorities Act 8 of 1984

• KwaZulu Amakhosi and Isiphakanyiswa Act 9 of

1990

• Etcetera.

Homelands have been incorporated into the rest of

SA but these Acts are still in operation in the various

former homelands’ areas.

UNOFFICIAL CUSTOMARY COURTS

WARD HEADS

• Civil and criminal jurisdiction only conferred upon traditional leaders

(chiefs) and headmen – ward heads has no statutory recognition.

• In rural areas they are often the ‘courts’ of first instance and not the

official courts of the traditional leaders or the headmen.

• Communal areas usually divided into wards under control of a ward

head appointed by the traditional leader or headman – his position

can also be hereditary.

• Example Tswana community:

– Ward head is entrusted with administration of justice in his area.

– He is assisted by the lekgotla (informal group of advisors – senior members

of the community).

– He hears civil cases only between members of the ward and unsatisfied

parties may appeal to the traditional leader.

– Serious cases must be referred to the traditional leader.

– He has no criminal jurisdiction but may investigate a case before referring it

to the formal customary court (with the traditional leader or headman).

– If parties from different wards, dispute must go to the ward of defendant.

UNOFFICIAL CUSTOMARY COURTS

MAKGOTLA (COMMUNITY COURTS)

• Especially in existence in urban areas (the townships).

• Developed as a result of dissatisfaction with the western oriented

courts:

– The judges did not understand the nature of the customary disputes.

– The judges were predominantly white males.

– Access to the courts and legal representation were and still are expensive.

– The court processes were and still are complicated and laborious.

• These courts still exist but not well-documented and the procedures

followed within these courts are sometimes arbitrarily and

haphazardly.

• But in some communities they have strong support.

• For these reasons the South African Law Reform Commission

recommended that they be recognised and regulated by means of

legislation.

ARGUMENTS AGAINST CUSTOMARY

COURTS

• Constitutional arguments

– Exclusion of legal representation

– No presumption of innocence and thus right to silence

– Gender inequality (exclusion of females)

– Absence of legal education

• Other arguments

– Allegations of abuse of judicial authority by some

traditional leaders

– Allegations of bias against female litigants or witnesses

– Inconsistencies and lack of enforceability of decisions

WHY DO WE STILL CLING TO TRADITIONAL

COURTS IN SOUTH AFRICA?

• There are approximately 1500 functional customary courts in SA.

• Only the Western Cape province does not have customary courts.

• It is estimated that 18 million people (SA population 48 million) live

in rural areas under the authority of traditional authorities.

• These courts are in most cases the only access to justice for

members of the traditional communities.

• Constitutional recognition and protection of cultural diversity

demands the inclusion of traditional authority structures in the

legal system.

• Advantages of customary courts

– Accessibility

– Inexpensive

– Familiarity with customary law

– Simplicity and informality

– Language

PART 2: CONTEMPORARY DEVELOPMENTS

• 1999 South African Law Commission commenced with

investigation to “consolidate the different provisions governing

[customary] courts and to modernise them so that their

operation is in conformity with the principle of democracy and

other values underlying the Constitution.”

• This resulted in:

– A Report in 2003 presented to the Minister of Justice and

Constitutional Development.

– A Draft Bill proposed by the Commission.

• The Department of Justice published their own version of a Bill

in 2008 and commenced with public hearings.

• During the hearings various concerns were raised which halted

the process.

• A task team was appointed with members of civil society and

traditional leaders to continue with consultations.

TRADITIONAL COURTS BILL

• One of the first legislation to follow the pattern of international

instruments by including objects and guiding principles.

• Objects of the Bill:

– To affirm the values of the traditional justice system based on

restorative justice & reconciliation and to align them with the

Constitution

– To affirm the role of traditional leadership in

• Promoting social cohesion, co-existence, harmony & peace in

community

• Enhancing access to justice by providing a speedier and less

expensive dispute resolution mechanism.

• Promoting & preserving traditions, customs & cultural practices that

promote nation-building.

– To create a uniform legislative framework.

– To enhance the effectiveness, efficiency and integrity of the

traditional justice system.

TRADITIONAL COURTS BILL

• Guiding principles of the Bill:

– Need for alignment with the Constitution, including:

• Promotion of constitutional values

• Prevention of unfair discrimination

– Promote access to justice for all

– Promotion of restorative justice measures

– Enhancement of quality of life of traditional communities through

mediation

– Skills & capacity development of traditional authorities

– Promotion and preservation of African values based on

reconciliation and restorative justice (in contrast to the retributive

justice system)

TRADITIONAL COURTS BILL

• Clause 4: The Minister in consultation with the premier of a province

may designate:

– A senior traditional leader (as recognised by the premier) as

presiding officer of a customary court in his area of jurisdiction

– A king or queen (as recognised by the president) as presiding

officer of a customary court

• Clause 4: Civil jurisdiction regarding civil disputes arising out of

customary law, with exclusions, e.g. Constitutional matters,

dissolution of marriages, custody of children, interpretation of

wills, exceeding a certain amount of certain property.

• Clause 5: Criminal jurisdiction regarding offences listed in the

schedule, e.g. Theft, damage to property, assault & crimen

iniuria.

TRADITIONAL COURTS BILL

• Sets out the sanctions and orders that may be given by the court.

• Sets out the procedure to be followed in order to ensure

enforcement of the court order.

• Appeal to a magistrates’ still court possible.

• It is possible to lodge a complaint with the Minister if there are

allegations of incapacity, gross incompetence or misconduct of a

presiding officer.

• It is possible for a presiding officer to transfer a case to a western

court if the officer is of the opinion that the court does not have

jurisdiction.

• Existing presiding officers will remain under condition that they

undergo the prescribed training and take a prescribed oath.

• More than one system of customary law applicable (eg. Parties

from different communities). Agreement, courts’ jurisdiction or

closest connection.

CRITIQUE OF THE BILL

• The Bill expressly excludes customary courts from s 166 of the

Constitution – why?

• The Bill does not include other informal court structures as those of

the ward heads & community councils as recommended by the Law

Commission – thus primary purpose to support restorative justice is

not fulfilled.

• The Bill allows the court to give an order to deprive a person from any

benefits that accrued in terms of customary law – what about property

rights?

• The Bill reinforces insider-outsider status and does not promote

unification.

• Women’s representation remains problematic – why not include them

as recommended by the Law Commission?

• The Bill does not allow for ‘opting out’ as recommended by Law

Commission.

• The Bill will restrain the development of living customary law.

CRITIQUE OF THE BILL

• The procedure in the courts is according to customary law, few

comments can be made, eg.

– Does not describe that women must also be included as presiding

officers but lays down that women must be afforded full & equal

participation in the proceedings.

– Adherence to the rules of natural justice, e.g. audi alteram partem rule

(hear both sides), nemo iudex in propria causa rule (impartiality). Why

use common law expressions in a customary context?

– Observation and respect of the rights contained in the Constitution in

general – again emphasising that customary law is subject to the

Constitution.

• Legal representation still not allowed but a party may be represented

by a family member, friend or community member according to rules

of customary law. What if such person is a lawyer – will he/she be

prevented from representing the party?

• The Bill encourages tribalism!

• Traditional leaders have more powers ito the Bill.

As a result of the criticisms –

government has withdrawn the bill in

November 2012 for reconsideration.

WE ARE BACK TO SQUARE ONE!

QUESTIONS?