288

III.9. Christa Rautenbach, Traditional Courts as Alternative

Dispute Resolution (ADR) –
Mechanisms in South Africa

1. Background

Globally, governmental and non-governmental organisations are

striving at different levels to provide alternative and affordable dis-
pute resolution mechanisms to promote effective and affordable ac-
cess to justice for everyone. South Africa is no exception. Organiza-
tions such as the Muslim Judicial Council,358 the Arbitration Founda-
tion of Southern Africa359 and Tokiso Dispute Settlement360 are a few

358
The council was established in 1945 as a non-profit organisation that
makes declarations about matters pertaining to Muslim law, including
marriage and divorce. Its pronouncements are generally accepted by the
Muslim community; although they are binding only inter partes. Recently
the Western High Court of South Africa in Faro v Bingham (case no
4466/2013 delivered on 25 October 2013 unreported para 34) verified
that the Muslim Judicial Council "has no statutory or religious authority
finally to determine questions as to whether a marriage has been validly
concluded or dissolved in accordance with the tenets of Islam". It also
held that the master of the high court is not bound by the
pronouncements of the Muslim Judicial Council and that she must
adjudicate matters such as the existence or not of a Muslim marriage by
looking at the factual evidence placed before her. She cannot base her
decision merely on letters issued by the council. The official website of the
council is accessible at http://www.mjc.org.za/.
359
The foundation was founded in 1996 and is a joint venture between
organised business and the legal and accounting professions. It has a
number of branches in major centres throughout South Africa and offers
289

examples of ADR-organizations dispensing justice in some or other

way in South Africa.
South Africa's pluralistic legal system361 also provides a perfect setting
for alternative dispute resolution (ADR) mechanisms based on tradi-

arbitrations, mediations and a fully administered dispute resolution

service. The official website of the foundation is accessible at
http://www.arbitration.co.za/pages/default.aspx.
360
Since its establishment in 2001, this provider has grown to be the largest
private dispute resolution provider in South Africa. For more information,
see the official website of Tokiso accessible at http://tokiso.com/.
361
Over a period of more than 340 years the official law of South Africa
evolved into a distinct, mixed, pluralistic legal system comprising of
transplanted colonial laws (the core being Roman-Dutch law,
subsequently influenced by English Common Law), known as the
common law of South Africa, as well as indigenous laws, referred to as
African customary law. The English influence is most apparent in
procedural aspects of the legal system and methods of adjudication (such
as procedural law, company law and the law of evidence), and the Roman-
Dutch influence is most visible in its substantive private law (such as the
law of contract, law of delict, law of persons, property law and family law).
For many years the common law was the dominant legal system in South
Africa. Customary law often had to take a back seat if its rules were
deemed to be against common-law values. Since 1994, however,
customary law has been regarded as a separate but equal legal system
available to African people choosing it. The main catalyst for this
development is the two South African Constitutions, which placed the
customary law on an equal footing with the common law. First section
181 and Constitutional Principle XIII of Schedule 4 of the Constitution of
the Republic of South Africa 200 of 1993 (the Interim Constitution) gave
recognition to the institution of traditional leadership and customary law.
Constitutional Principle XIII provided as follows: “Indigenous law
[customary law], like common law, shall be recognised and applied by the
courts, subject to the fundamental rights contained in the Constitution
and to legislation dealing specifically therewith”. The Interim Constitution
was replaced by the Constitution of the Republic of South Africa, 1996
(the Constitution) on 4 February 1997. Section 211 of this Constitution
continued with the trend of giving formal recognition to customary law
and today there is no doubt that it forms part of the South African legal
mix.
290

tional norms and values. One such example is traditional courts, the
main focus of this chapter. Although they have been called "courts" it
is debatable that they are indeed courts in a conventional sense,362 be-
cause they do not allow for legal representation, the court procedures
are not conducted in a legalistic way, the parties involved in the pro-
ceedings do not follow standard procedural rules, they are generally
not courts of record,363 and some of them do not allow women to
participate in the proceedings. The "court" officials do not undergo
legal training and are more often than not members of the commu-
nity whose objectivity might be questioned. On the other hand, these
courts play an important role in dispute resolution within many tradi-
tional communities, especially in rural areas, where they are popular
because they are in general speedy, more accessible and less expen-
sive than Western style courts.
Seeing that ADR "offers those most directly involved in conflict an
immediate and direct decision-making role in resolution processes
which are free from legalese",364 it may be argued that traditional
courts resemble ADR mechanisms more closely than the conven-

362
Conventional courts are those established in terms of legislation. In terms
of section 166 of the Constitution of the Republic of South Africa, 1996
(the Constitution) three kinds of courts are distinguished: the
Constitutional Court, ordinary courts (the Supreme Court of Appeal, the
High Courts, and the Magistrates' Courts) and special courts. See also the
discussion at 2.1 below.
363
South African legislation makes provision for keeping records under
certain circumstances, see 2.2.1 & 2.2.2 below.
364
AT Trollip Alternative Dispute Resolution (Butterworths Durban 1991) at 1.
291

tional courts. They do not operate in the same way as mainstream

courts based on the Western style of justice and rule of law,365 but are
institutions targeted with the dispensing of traditional justice.366 Nei-
ther do they fit neatly into our understanding of ADR mechanisms.
ADR methods are usually employed to resolve disputes only when
the parties to a dispute agree thereto,367 whilst traditional courts apply
automatically to all the members of a particular community within a
certain area under the jurisdiction of a traditional leader endowed
with civil and criminal jurisdiction.
There are a number of arguments in favour of a viewpoint that tradi-
tional courts resemble dispute resolution mechanism rather than
Western-like courts, especially those operating in an informal set-
ting.368 First of all, South Africa's colonial powers allowed African
traditional communities to settle disputes within structures that were

365
Another viewpoint is that the rule of law will be strengthened rather than
weakened by the inclusion of customary justice systems. See Erica Harper
"Engaging with Customary Justice Systems" in Janine Ubink (ed)
Customary Justice: Perspectives on Legal Empowerment (International
Development Law Organisation Italy 2011) 29-43 at 32.
366
See the discussion of the issue by Digby S Koyana "Traditional Courts in
South Africa in the Twenty-First Century" in Jeanmarie Fenrich, Paolo
Galizzi and Tracy E Higgens (eds) The Future of African Customary Law
(Cambridge University Press 2011) at 227-230.
367
Peter Ramsden The Law of Arbitration: South African and International
Arbitration (Juta Cape Town 2009) at 1.
368
Traditional courts are found on two levels; formal and informal. The
formal courts are those established in terms of legislation (see the
discussion below at 2) and the informal courts are those operating
unofficially as so-called "family courts", courts of the "ward heads", or
"community courts" (see the discussion below at 3).
292

familiar with their systems of personal law, based on their idea of jus-
tice.369 As a result of the existence of diverse and complex African
customary rules, it is difficult to identify a universal set of rules of
what constitutes African justice and values. Nevertheless, in contrast
to the Western idea of justice, customary justice systems are generally
flexible and accommodating. The idea is not to resolve a dispute
through adjudication but to facilitate a settlement that is acceptable to
all the parties.370 The aim of the process is to restore the equilibrium
of the community and not to have a winner/loser situation typical of
the Western legal system.371 Secondly, considering that customary law
is a personal legal system applicable to traditional communities living
in South Africa,372 it may be argued that observing such a system may
be interpreted in such a way that it also includes an agreement to be
369
Thomas W Bennett Application of Customary Law in Southern Africa: The
Conflict of Personal Laws (Juta Cape Town 1985) at 39.
370
Janine Ubink and Benjamin van Rooij "Towards Customary Legal
Empowerment: An Introduction" in Janine Ubink (ed) Customary Justice:
Perspectives on Legal Empowerment (International Development Law
Organisation Italy 2011) 7-28 at 11.
371
Christa Rautenbach "Therapeutic Jurisprudence in the Customary Courts
of South Africa: Traditional Authority Courts as Therapeutic Agents"
2009(21)2 South African Journal on Human Rights 323-335.
372
The Recognition of Customary Marriages Act 200 of 1998 describes
"customary law" as "the customs and usages traditionally observed among
the indigenous African peoples of South Africa and which form part of
the culture of those peoples". From this definition it should be evident
that customary law is neither uniform nor fixed. For a discussion of the
problems created by the definition, see Jan C Bekker and Christa
Rautenbach "Nature and Sphere of Application of African Customary
Law in South Africa" in Christa Rautenbach, Jan C Bekker and Nazeem
MI Goolam (eds) Introduction to Legal Pluralism 3rd ed (LexisNexis Durban
2010) at 17-20.
293

subject to the jurisdiction of the traditional courts - thus, the "agree-

ment" needed for an ADR-method to settle a dispute between com-
munity members. The third argument is a constitutional one. Besides
the express provision373 in the Constitution for the retention of the
approximately 1500374 traditional courts, section 30 confirms that
everyone has the "right to participate in the cultural life of their
choice". In addition, section 31 stipulates that persons belonging to a
cultural community may not be denied the right to enjoy their culture
with other members of that community.375 The latter two provisions
strengthen the argument of some scholars that traditional communi-
ties have the right to resolve disputes between their members
through their own justice structures, especially in the urban areas
where a number of unofficial "court-like" structures have developed
to provide poorer communities' access to justice.376 This chapter,

373
Constitution: Schedule 6, section 16(1).
374
Thomas W Bennett Customary Law in South Africa (Juta Lansdowne 2004)
141.
375
These rights are, however, subject to an important caveat – they may not
be exercised in a manner inconsistent with the Bill of Rights. See
Constitution: sections 30 and 31(2).
376
This phenomenon has been dubbed "makgotla" (community courts),
"unofficial tribunals", "people's courts" and/or "kangaroo courts". These
structures developed as a result of urbanisation, which led to an increase
in the growth of disputes between urban dwellers, especially in the
townships, where access to the mainstream Western orientated courts is
beyond the reach of the average litigant. These institutions are currently
not recognised although they continue to function in the background. For
a discussion of their development and the way they function in the urban
areas, see Bennett Customary Law in South Africa at 151-160; D Bogopa "A
294

however, focuses on the legal position of official traditional courts,

and other pseudo structures, especially those that developed in rural
areas, are not discussed in detail.377
Against this background, this chapter deals with the current legal
framework for and the role of official traditional courts as alternative
dispute resolution mechanisms in a South African context. Official
traditional courts are those recognized in terms of the Black Admini-
stration Act378 and its regulations and the Constitution.379 They are
known as "chiefs' or headmen's courts", "customary courts", "tradi-
tional courts" or "traditional authorities' courts". The law relating to
official traditional courts has been under investigation since 1999 and
legislative reform is currently in the pipeline.380
Unofficial traditional courts include the courts of the family councils,
ward heads and sub-ward heads, although there are many differences
in how the structures are formed on various levels, depending on the

Critique on Traditional Courts, Community Courts and Conflict

Management" 2007(20)(1) Acta Criminologica 144-155 at 148-151.
377
For more information, see Bennett Customary Law in South Africa 151-160;
Digby S Koyana, Jan C Bekker and Richman B Mqeke "Traditional
Authority Courts" in Christa Rautenbach, Jan C Bekker and Nazeem MI
Goolam (eds) Introduction to Legal Pluralism 3rd ed (LexisNexis Durban
2010) 172-186 at 185-186; Bogopa 2007 Acta Criminologica at 144-155; The
SALC was also involved in the investigation of these structures in the
context of ADR. See SALC Discussion Paper 87 on Community Dispute
Resolution Structures: Project 94 (Pretoria 1999). They voiced their support
for the recognition of these structures but to date they are not legally
recognised.
378
38 of 1927 (hereafter the Black Administration Act.
379
See the discussion at 2 below.
380
See the discussion at 4 below.
295

practices of a particular community. For example, in some communi-

ties the judicial process commences with the family council and then
proceeds in chronological order to the sub-ward head, the ward head
and, finally, the headman or chief. In other communities the court
system may consist only of the family council, the ward head and the
headman or chief.381 These "courts" operate within the sphere of
non-state law, but remain nevertheless important arbitration mecha-
nisms within the societies.382

The second part of this chapter deals briefly with legislative devel-
opments that is in the pipeline for traditional courts, namely the Tra-
ditional Courts Bill,383 before a conclusion is reached on the (possi-
ble) future of traditional courts in South Africa in the light of their
advantages in the context of ADR.

381
Bennett Customary Law in South Africa at 142.
382
Non-state law or, as it is often referred to, "the other law" can be
attributed to the deep divide between the different racial groups in South
Africa during the apartheid era. See Daniel Nina & Wilfried Schärf
"Introduction: The Other Law?" in Daniel Nina & Wilfried Schärf (eds)
The Other Law: Non-State Ordering in South Africa (2001) 1-13 at 1-4. State
law includes legislation, customary and case law, and non-state law
includes, for example, the rules of a sport club or organisation, or the
rules of a family head laid down for the members of the family. See FJ
Van Zyl and JD Van der Vyver Inleiding tot die Regswetenskap 2nd ed (Durban
Butterworths 1982) at 273.
383
B1-2012 published in Government Gazette 34850 of 13 December 2011. The
parliamentary processes regarding the Bill are documented on the official
website of the Parliamentary Monitoring Group, accessible at
http://www.pmg.org.za/files/doc/2012/comreports/121129scsecurityre
port3.htm (date of use 4 March 2014).
296

2. Legal framework for official traditional courts in South

Africa

Before colonialism, traditional communities were governed according

to the customary law of the various communities under the leader-
ship of their traditional leaders. Both the colonial and post-colonial
governments saw the advantages of such a system and the various
structures of dispute settlements were retained, although they has de-
veloped quite considerably over the years.384
Currently, the administration of justice in rural South Africa is pre-
dominantly carried out by traditional courts manned by chiefs, which

384
The Dutch government (1652-1805) was confronted with the existence of
indigenous people on Cape soil whose customs and usages were totally
different from those to which it was accustomed. At first, no account was
taken of these customs and usages because they were seen as
"uncivilised". It was only after the second British occupation, in 1806, that
customary or indigenous law received some form of recognition. The
British followed a policy of non-interference with the customs and usages
of indigenous people, provided that these customs and usages were not
repugnant to public policy and the principles of natural justice. During
this time the various territories (the British Colonies ofthe former Cape
and Natal), the Boer Republics (the former Transvaal and Orange Free
State) and various indigenous kingdoms (inter alia, the Zulu and Basuto
kingdoms) regulated the application of customary law by means of their
own legislation. In 1927 the various territorial laws were finally
consolidated in the controversial Black Administration Act, which used to
provide (and to some extent still provides) for the management of the
affairs of certain black persons. Although subject to severe criticism, large
portions of this Act, including the section dealing with customary courts,
are still in operation. For a summary of the legal developments that took
place before 1927, see Jan C Bekker "Court Structure and Procedure" in
WA Joubert, JA Faris and Joan Church (eds) The Law of South Africa Vol
32 (LexisNexis Durban 2009) at 261-263.
297

administer justice largely on the basis of customary law. The opera-

tion of these courts is governed by a complex of statutes and regula-
tions issued nationally385 and regionally in some of the former home-
lands and self-governing territories,386 as well as uncodified customary
rules.387 As already explained, the courts operate on a formal (official)
and informal (unofficial) level, depending on the degree of state in-
volvement in their functioning.388 The continued operation of the
traditional courts is sanctioned by the Constitution,389 and the contin-

385
The Black Administration Act and the regulations issued in terms of it.
See the discussion at 2 below.
386
In accordance with South Africa’s policy of separate development, the
state created ten homelands (Bophuthatswana, Ciskei, Gazankulu,
KaNgwane, KwaNdebele, KwaZulu, Lebowa, Qwaqwa, Transkei and
Venda) with the purpose of assigning every African to a homeland
according to their ethnic identity. This was done in terms of the
Promotion of Bantu Self-Government Act No 46 of 1959 (repealed by
the interim Constitution in 1994). In the course of time four of these
homelands became independent with limited governance and legislative
powers, viz. Bophuthatswana (1977), Ciskei (1981), Transkei (1976) and
Venda (1979). Examples of statutes dealing with traditional courts in the
homelands include: Regional Authorities Courts Act, 1982 (Transkei);
KwaNdebele Traditional Hearings of Civil and Criminal Cases by the
Lingwenyama, Amakhosi, Amakhosana and Linduna Act 8 of 1984;
KwaZulu Amakhosi and Iziphakanyiswa Act 9 of 1990; Venda Traditional
Leaders Administration Proclamation 29 of 1991; Bophuthatswana
Traditional Courts Act 29 of 1979; Transkei Authorities Act 4 of 1965;
Chiefs Courts Act 6 of 1983; Ciskei Administrative Authorities Act 37 of
1984; QwaQwa Administration Authorities Act 6 of 1983; and the
KwaZulu Act on the Code of Zulu Law 16 of 1985 (KwaZulu-Natal).
387
The procedures in the traditional courts (civil and criminal) are in
accordance with recognised customs and laws of the traditional
community within which the relevant traditional court operates. Koyana,
Bekker and Mqeke "Traditional Authority Courts" at 177.
388
See the discussion at 2 below.
389
Constitution: Section 166(e) read with item 16(1) of Schedule 6.
298

ued operation of the homeland statutes is also constitutionally en-

dorsed.390
The section that follows deals with the constitutional recognition of
official traditional courts and gives an overview of the legislative
framework for the establishment and operation of the official tradi-
tional courts within the cadre of national legislation.391

2.1 Constitutional recognition of official traditional courts

Chapter 8 of the Constitution deals with courts and the administra-
tion of justice in South Africa. The expression "traditional courts" is
absent from the list of courts specified in section 166392 of the Con-
stitution, but in Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of South Africa, 1996,393 the Constitutional
Court held that the words "any other court established or recognised
in terms of an Act of Parliament ..." in section 166(e) read with sec-
tion 16(1) of Schedule 6, are broad enough to include traditional

390
Constitution: Item 2(1) of Schedule 6 stipulates: "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".
The homeland statutes were assigned by the president to the relevant
provinces in terms of item 14 of Schedule 6 of the Constitution.
391
The position of the regional traditional courts operating in terms of re-
gional statutes will not be dealt with in detail in this contribution.
392
Section 166(a)-(e) lists the following courts: the Constitutional Court; the
Supreme Court of Appeal; the High Courts; the Magistrates' Courts; and
any other court established or recognised in terms of an Act of
Parliament.
393
1996 (4) SA 744 (CC) at para 199.
299

courts which were established in terms of the Black Administration

Act. Section 16(1) of Schedule 6 stipulates as follows:
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.394

The continued existence of traditional courts as part and parcel of the

legal system of South Africa is thus constitutionally endorsed, but it is
clear that their continued existence is subject to legislative interfer-
ence consistent with constitutional provisions, most notably those
contained in the Bill of Rights.
Although the existence of traditional courts can be found in statutes,
their nature, structure and operation differ quite considerably from
community to community. In spite of these structural differences, it
is evident that only traditional leaders who are duly appointed under
the Black Administration Act may exercise judicial powers.

394
Emphasis added.
300

2.2 The Black Administration Act and its regulations (the

official courts)
The Black Administration Act was introduced in 1927 with the pur-
pose of establishing a national system for the recognition and applica-
tion of customary law and the creation of a separate justice system
for traditional communities, amongst other things. The Act is a rem-
nant of South Africa's colonial past and has been subject to severe
criticism, especially for its blatant disregard of constitutional values395
and human rights.396 Nevertheless, although the Act has been re-
pealed almost in its entirety,397 the provisions dealing with the civil ju-
risdiction (section 12) and criminal jurisdiction (section 20) of tradi-
tional leaders remain intact, and also the regulations issued in terms
of these two provisions.398
Although the term "court" is used to describe the institution tasked
with civil and criminal disputes in traditional communities, it should

395
Constitution: section 7(1) lists those values as human dignity, equality and
freedom.
396
For a detailed account of all the criticisms voiced against the Act, see
South African Law Reform Commission Report on the Repeal of the Black
Administration Act 38 of 1927: Project 25: Statute Law (Pretoria 2004).
397
See Repeal of the Black Administration Act and Amendment of Certain
Laws Act 28 of 2005. The Act came into operation on 12 April 2006.
398
Government Notice R2082 published in Extraordinary Government Gazette
1929 of 29 December 1967 (hereafter Chiefs' and Headmen's Civil Courts
Rules) was issued in terms of section 12 and contains rules relating to the
practice and procedure to be followed in the civil courts of traditional
leaders, whilst Government Notice R45 published in Extraordinary
Government Gazette 6609 of 13 January 1961 regulates the appeal
procedures to be followed in criminal traditional courts (hereafter the
Regulations (For Criminal Appeals)).
301

be noted that the Black Administration Act does not create a court in
the strict sense of the word, but makes provision for conferring civil
and criminal jurisdiction on a traditional leader (a chief, headman or
chief's deputy). For the sake of convenience, however, the term
"court" will be used to describe these traditional institutions assigned
with judicial powers.

2.2.1 Official civil courts of traditional leaders

Section 12 of the Black Administration Act is entitled "Settlement of
civil disputes by Black chiefs, headmen and chiefs' deputies" and
provides the current legal framework for civil courts of traditional
leaders. Section 12(1)(a) stipulates that the Minister of Justice and
Constitutional Development may authorise a traditional leader399 "to
hear and determine civil claims arising out of Black law and custom
brought before him by Blacks against Blacks resident within his area
of jurisdiction". According to this provision there are four conditions
which must be met before a civil claim can be successfully pursued,
namely:

a) State recognition: the traditional leader must have ministerial au-

thorisation to act as the presiding officer in the civil dispute. This

399
A chief, headman or deputy.
302

condition is self-evident – authorisation must be obtained from

the Minister to hear civil disputes between parties.

b) Conflict of laws: the civil claim must have arisen out of customary
law. This condition has produced its fair share of problems. The
proof and ascertainment of customary law are not always straight
forward. Because of its evolving, flexible, unwritten and diverse
nature, it is often difficult to prove the existence of a customary
law rule within a particular community.400 Furthermore, there
might be conflicts between different systems of customary law
which necessitate the application of conflict rules to determine
which customary law is applicable.401 A conflict may also exist be-
tween the common law and customary law, which needs to re-
solved within the specialist subject known as the "conflict of laws"
or "interpersonal conflict of laws".402

c) Racial qualification: both of the parties must be African.403 If, for

example, a white person seduces a black girl in a rural area, the

400
See Bennett Customary Law in South Africa at 44-49 for a discussion of this
problem.
401
Bennett Customary Law in South Africa at 69-70.
402
Bennett Customary Law in South Africa at 49-69 discusses these rules in
detail. See also NJJ Olivier "The Judicial Application of African
Customary Law" in AJGM Sanders (ed) The Internal Conflict of Laws in South
Africa (Butterworths Durban 1990) at 39-57.
403
In spite of the political incorrectness of the term "black" to refer to racial
categories in South Africa, this term remains in the Act.
303

relevant traditional authorities would have no jurisdiction to medi-

ate or try such a case. The continued limitation of access to a court
on the grounds of racial factors is questionable in the light of the
equality clause in the Constitution404 and the Promotion of Equality
and Prevention of Unfair Discrimination Act.405

d) Residential qualification: Although the act requires that both par-

ties must be resident within the geographical area under the au-
thority of the traditional leader, it is a well-established practice of
the courts to consent to jurisdiction where only the defendant is a
resident or if the non-resident gives permission for the court to
hear the case.406

The power of the traditional leader is limited in the case of nullity, di-
vorce or separation arising out of a marriage,407 but they do have ju-
risdiction over claims for the return of lobolo408 and actions for dam-
ages for adultery in terms of customary law.409

404
Constitution: section 9.
405
4 of 2000. See also Bennett Customary Law in South Africa at 145-146.
406
Bennett Customary Law in South Africa at 144.
407
Black Administration Act: section 12(1) proviso.
408
Lobolo is defined in section 1 of the Recognition of Customary Marriages
Act as "property in cash or in kind, whether known as lobolo, bogadi, bohali,
xuma, lumalo, thaka, ikhazi, magadi, emabheka or by any other name, which a
prospective husband or the head of his family undertakes to give to the
head of the prospective wife's family in consideration of a customary
marriage".
409
Bennett Customary Law in South Africa at 143-144.
304

The procedure to be followed during the civil proceedings before the

court is prescribed in terms of the Chiefs' and Headmen's Civil Courts
Rules promulgated in terms of section 12(9) of the Black Administration
Act. In the main, the Chiefs' and Headmen's Civil Court Rules prescribe
that the procedure and execution of a judgment must be in accor-
dance with the recognized customs and laws of the communities
concerned.410 There are, however, a few ancillary rules which must be
followed that resemble the civil procedural rules followed in the
mainstream courts. They include, amongst others, default judgment
in the absence of one of the parties;411 the competence of a traditional
leader to adjourn a case, and the options available to a litigant if the
traditional leader unreasonably delays a case;412 the responsibility to
keep a written record of the proceedings;413 and to register the judg-
ment at the clerk of a magistrate's court.414
The Chiefs' and Headmen's Civil Courts Rules also prescribe the proce-
dure to be followed if one of the parties lodges an appeal against the
judgment of the traditional leader.415 The aggrieved party must notify
the clerk of the magistrate's court within two months of the tradi-

410
Chiefs' and Headmen's Civil Court Rules: rules 1 and 8.
411
Chiefs' and Headmen's Civil Court Rules: rule 2.
412
Chiefs' and Headmen's Civil Court Rules: rule 3.
413
Chiefs' and Headmen's Civil Court Rules: rule 6.
414
Chiefs' and Headmen's Civil Court Rules: rule 7. A magistrate's court is a
conventional lower court established for the administration of justice
within a certain district or region in terms of section 166(d) of the
Constitution and the Magistrates' Courts Act 32 of 1944.
415
Chiefs' and Headmen's Civil Court Rules: rule 9.
305

tional court's ruling and the appeal must be made to a magistrate's

court having jurisdiction.416 The traditional leader must furnish his
reasons for the judgment in writing and if he fails to do so, it must be
recorded by the clerk of the court. Upon failure to provide reasons,
he may be called upon to do so by order of the court.417 This process
brings the matter within the realm of the mainstream court system
and the magistrate may re-hear and re-try the case as if the magis-
trate’s court were a court of first instance.418 The magistrate's court
may confirm, alter or set aside the judgment of the traditional leader
after hearing the evidence, which judgement is deemed to be a
judgement of the magistrate's court and not of the traditional court.419
The magistrate is under a constitutional obligation to apply custom-
ary law "when that law is applicable, subject to the Constitution and
any legislation that specifically deals with customary law".420 At face
value this provision seems straightforward, but the application of cus-
tomary law is subject to three qualifications: it must be applicable, it
must be compatible with the Constitution and it must not be superseded by
any legislation dealing with customary law. Although a discussion of

416
The procedure of appeal to a magistrate court is described in Chiefs' and
Headmen's Civil Court Rules: rules 9-12.
417
Chiefs' and Headmen's Civil Court Rules: rule 11. In terms of rule 11(3) the
magistrate has discretion to continue with the hearing without the reasons
for judgment.
418
Chiefs' and Headmen's Civil Court Rules: rule 12(4). See also section 29A of
the Magistrates' Courts Act.
419
Koyana, Bekker & Mqeke "Traditional Authority Courts" at 183.
420
Constitution: section 211(3).
306

these qualifications falls outside the scope of this Chapter, we need to

point out that the legal position is far from settled. Both the applica-
bility of customary law and its compatibility with the Constitution are
contentious issues which have kept our legal scholars and courts
quite busy.421

Legal representation is not allowed in the traditional court.422 A num-

ber of reasons for the exclusion of representatives have been ad-
vanced.423 Firstly, the litigants in traditional courts are normally very
poor, which may lead to hardship if only one of the parties is wealthy.
This reason is not unique to litigation in terms of customary law.
Similar situations may prevail in ordinary courts, where the affluence
of the parties may differ considerably. Secondly, the simplicity of cus-
tomary law cases does not necessitate the making of complicated le-
gal arguments by legal practitioners. In addition, it is argued that the
parties are generally knowledgeable in customary law, a fact which
makes legal representation redundant. In the light of modern devel-

421
For a discussion of some of the issues, see Rautenbach and Bekker
"Nature and Sphere of Application" at 40-43.
422
Chiefs' and Headmen's Civil Court Rules: rule 5.
423
South African Law Commission (the SALC) Discussion Paper 82 on the
Harmonisation of the Common Law and Indigenous Law: Traditional Courts and the
Judicial Function of Traditional Leaders (Project 90 Pretoria 1999) (hereafter
the SALC (1999)) at 36-37; SALC Report on Traditional Courts and the Judicial
Function of Traditional Leaders (Project 90 Pretoria 2003) (the SALC (2003))
at 22-23. The SALC was renamed as the South African Law Reform
Commission (SALRC) on 17 January 2003.
307

opments such as urbanization and the drift from extended families

towards nuclear family structures, the truth of this statement might
need a re-assessment. Other less convincing reasons for the retention
of the rule include the fact that the lawyerly way of using legal jargon
in the court might confuse the issues, might undermine the essence
of the courts, or might introduce a problem of language.
The constitutionality of the exclusion of legal practitioners was evalu-
ated in the High Court in Bangindawo v Head of the Nyanda Regional Au-
thority,424 where the court came to the conclusion that although re-
gional authority courts425 are akin to traditional courts they are not
immune to the provisions of the interim Constitution.426 Seeing that all
laws, including pre-Constitution laws, have to meet constitutional stan-
dards, the Court found that there was no justifiable reason for the
prohibition against legal representation and the rule had to be struck
424
1998 (3) SA 262 (Tk). Two cases were brought before the Transkei High
Court. The first case dealt with the conviction of Nyanisile Bangindawo
and two others in terms of the Stock Theft Act 25 of 1977 (Tk) in the
Nyanda Regional Authority Court. The second case was brought by
Kutete Hlantlalala against the Western Tembuland Regional Authority.
The two applicants attacked the constitutionality of the two regional
authority courts on a number of points - for example, that the regional
courts denied litigants the right to legal representation. Although the court
found the exclusion of legal representatives to be unconstitutional, it held
that the framers of the interim Constitution had intended that the regional
authority courts should continue to exist (at page 270).
425
Regional Authority Courts were established in terms of the former
homeland legislation. See note 29 above for a list of some of these
statutes.
426
The case was considered when the interim Constitution was still in
operation, but remains relevant for a discussion of the provisions of the
new Constitution.
308

down for both criminal and civil proceedings in regional authority

courts.427 A similar conclusion in the context of the new Constitution
was reached in Mhlekwa v Head of the Western Tembuland Regional Au-
thority.428 The South African Law Commission (the SALC)429 evalu-
ated both findings and came to the conclusion that they apply only to
regional authority courts and not to other traditional civil and crimi-
nal jurisdiction courts established in terms of the Black Administration
Act.430 As a result they recommended that the prohibition against le-
gal representation be retained in future legislation dealing with tradi-
tional courts.431

427
At page 277.
428
2001 (1) SA 574 (Tk). The Western Tembuland Regional Authority issued
warrants for the arrest for the two applicants who failed to appear on
different occasions in the Western Tembuland Regional Authority Court
and the Chief’s Court at Qamata respectively. Both were found guilty on a
charge of contempt of court by the Western Tembuland Regional
Authority Court and sentenced to "pay two herds (sic) of cattle/R1 000 or
to undergo two months imprisonment" (at page 582). The applicants
subsequently applied for an order in the appeal court setting aside their
conviction and sentences and also attacked the constitutionality of certain
of the provisions of the Regional Authority Courts Act 13 of 1982 (Tk) (at
page 583). As a result of the similarities between the two cases, it was
decided that they be heard together by a full bench of the court. Although
the appeal court found irregularities in the criminal proceedings in respect
of both parties and set both sentences aside, it continued to assess the
constitutionality of the relevant provisions of the Regional Authority
Courts Act excluding legal representation.
429
The SALC issued two documents with regard to traditional courts, viz:
SALC (1999) and SALC (2003).
430
SALC (1999) at 37-39.
431
See the discussion at 4 below.
309

Another worrying aspect is the fact that no limit is placed on the

quantum or monetary value of a civil claim.432 The SALC has, how-
ever, recommended a change in this regard and the indications are
that the value of claims is going to be capped in future.433

2.2.2 Official criminal courts of traditional leaders

The criminal jurisdiction of traditional courts is governed by section
20 of the Black Administration Act, which is entitled "Powers of
chiefs, headmen and chiefs' deputies to try certain offences". Section
20(1)(a) stipulates that the Minister of Justice and Constitutional De-
velopment may confer the jurisdiction upon a traditional leader to try
and punish any African who has committed, in the area under the
control of the traditional leader, the following crimes:

a) any common-law crimes, other than a crime referred to in the

Third Schedule434 to the Act;

b) any customary law crimes, other than a crime referred to in the

Third Schedule to the Act and

432
Bekker "Traditional Authority Courts" at 181-182.
433
Traditional Authorities Bill: clause 5(e). See discussion below at 4.
434
The third Schedule contains 35 of the most serious common-law
offences, for example murder, rape, culpable homicide and robbery.
310

c) any statutory crime, other than a crime referred to in the Third

Schedule to the Act.

The application of these provisions is not problem-free. For one, the

common-law and customary law perspectives on crimes may differ,
as well as their perspectives on what qualifies as civil and what as
criminal, and this might create difficulties when deciding what law
(common law or customary law) to use to classify a cause of action as
either civil or criminal or common law or customary law.435 For ex-
ample, as a run-up to a customary marriage, the bridegroom and his
family and/or friends may abduct his bride to be and take her to his
homestead to persuade her parents to consent to their marriage. In
terms of customary law the actions of the bridegroom constitute a
delict if the marriage does not follow the abduction, whereas under
common law his action may be regarded as the crime of kidnap-
ping.436

Another problem is that the criminal jurisdiction of the traditional

court is restricted in terms of race; both the accused (the co-accused

435
Bennett Customary Law in South Africa at 144-145.
436
See Christa Rautenbach and Jacques Matthee "Common Law Crimes and
Indigenous Customs: Dealing with the Issues in South African Law"
2010(61) Journal of Legal Pluralism and Unofficial Law 109-144 for a
discussion of the potential conflict between common-law crimes and
customary practices.
311

if they were more than one) and the victim (or victims) of the offence
must be African.437 I have already alluded to the problem of limiting
the jurisdiction of the court on the basis of race, which is a clear in-
fringement of the constitutional guarantee of equal treatment before
the law.438

The jurisdiction of the court is furthermore restricted in terms of the

nature and extent of the punishment the court may impose. Section
20(2) stipulates that the punishment must be in accordance with cus-
tomary law but the court may not inflict any punishment involving
death, mutilation, grievous bodily harm or imprisonment, or impose
a fine in excess of R100 or two head of large stock or ten head of
small stock or impose corporal punishment.439 These restrictions are
in line with the constitutional provision that prohibits punishment in
a "cruel, inhuman or degrading way"440 and the Abolition of Corporal
Punishment Act441 that prohibits corporal punishment.442

437
Black Administration Act: section 20(1)(a) proviso.
438
Constitution: section 9(1).
439
Black Administration Act: section 202 proviso.
440
Constitution: section 12(1)(e).
441
33 of 1997: section 1.
442
The Abolition of Corporal Punishment Act: section 1 stipulates: "Any law
which authorises corporal punishment by a court of law, including a court of
traditional leaders, is hereby repealed to the extent that it authorises such
punishment.” Emphasis added.
312

Although the execution of judgment is also in terms of customary

law, the Act makes provision for the involvement of a magistrate if
the convicted person fails to pay a fine imposed on him or her. In
such a case the traditional leader may have the defaulter arrested and
have the person brought before a magistrate of the district within 48
hours.443 The magistrate may then order the person to pay the fine
imposed by the traditional leader, failing which payment he may sen-
tence him or her to imprisonment for a period not exceeding three
months444 by issuing a warrant to that effect.445 The actual machinery
for the enforcement of the judgement of the traditional court is mir-
rored on the machinery applicable in the mainstream courts.
Any person who has been convicted by a traditional court may appeal
against his or her conviction and/or sentence to a magistrate’s court
which has jurisdiction in the district where the hearing took place.446
The procedure to be followed is set out in the Regulations (for Criminal
Appeals). A convicted person who wants to lodge an appeal must give
notice of appeal to the traditional leader who convicted him or her,
the complainant and the clerk of the magistrate's court concerned,
within 30 days of his or her conviction.447 The clerk of the magis-
trate's court shall fix a date for the hearing of the appeal and notify

443
Black Administration Act: section 2(5)(a).
444
Black Administration Act: section 2(5)(b).
445
Black Administration Act: section 2(5)(c).
446
Black Administration Act: section 20(8).
447
Regulations (for Criminal Appeals): regulations 1 and 2.
313

the parties accordingly.448 The magistrate may in his discretion either

postpone the hearing or dismiss the appeal if the appellant fails to
appear.449 The procedure to be followed in the magistrate's court is
prescribed in section 309A of the Criminal Procedure Act.450 In terms
of this provision the magistrate shall hear and record "such available
evidence as may be relevant to any question in issue" and may make
one of the following orders:

a) The magistrate may confirm or vary the conviction and in addition

may confirm the sentence imposed by the traditional court and
order that the said sentence be satisfied forthwith; or set aside the
sentence imposed by the traditional court and in the place thereof
impose such other sentence as in his opinion ought to have been
imposed;451 or set aside the sentence imposed by the traditional
court and in the place thereof impose a sentence of imprisonment
for a period not exceeding three months without the option of a
fine.

b) The magistrate may uphold the appeal and set aside the conviction
and sentence.

448
Regulations (for Criminal Appeals): regulation 3.
449
Regulations (for Criminal Appeals): regulation 4.
450
105 of 1977.
451
In the case of imprisonment, the period may not exceed three months.
314

Since the magistrate hears the evidence afresh, it is not strictly speak-
ing an appeal but a re-trail. Nevertheless, the appeal procedure should
not be abused in order to change either the parties or the cause of ac-
tion.452 As a general rule, the magistrate must apply customary law
when applicable, compatible with the Constitution and not superseded by any
legislation dealing with customary law.453

3. Unofficial traditional courts

Unofficial traditional courts include the courts of the family councils,

sub-ward heads and ward heads, depending on the particular justice
structures found in a traditional community. The Black Administra-
tion Act does not take cognizance of the various hierarchies of struc-
tures that may exist within the communities, or the possibility of ap-
peals within those structures. These judicial structures operate within
the sphere of non-state law; in other words on an informal or unoffi-
cial level. In many communities it is the practice that claims or com-
plaints start at the level of the family council. If the matter is not re-
solved at this level, it is taken to the sub-ward head or ward head

452
Bennett Customary Law in South Africa at 148.
453
See the discussion at 2.2.1 above.
315

who, together with their advisers,454 try to dispose of the matter. The
primary focus of these structures is mediation and reconciliation be-
tween the members in their areas.455 If informal structures are unable
to dispose the matter sufficiently, or if a party is not satisfied with the
sub-headman’s decision, it is referred to the formal traditional court
of the particular area.

There are no official figures available but a large number of cases are
dealt with in these unofficial structures.456 The ward head is ap-
pointed by the traditional leader or merely recognized by him if his
position is hereditary. The procedures within these unofficial courts
differ from community to community. For example, in some of the
Tswana communities, the ward head is assisted by an informal group
of advisors, consisting of senior family members and heads of other
family groups in the community. They adjudicate disputes involving
only members of the ward and if a dispute involves a member of an-
other ward, the ward head of the defendant will have jurisdiction. He
does not have criminal jurisdiction and may not impose a fine or any

454
The informal group of advisers normally consists of his senior relatives
and the heads of other family communities in the area.
455
For example, it has been reported that a resident was charged by a sub-
headman with not having a toilet at home. He asked for pardon and
indicated that he had already started building one. The sub-headman
accepted his excuse and no further action was taken in the matter. See
Digby S Koyana & Jan C Bekker The Judicial Process in the Customary Courts
of Southern Africa (University of Transkei 1998) at 37-38.
456
Koyana, Bekker and Mqeke "Traditional Authority Courts" at 177.
316

form of punishment, except for contempt of his court. He must try

to resolve the dispute between the parties, but serious cases must be
referred to the official traditional court.457 The SALC recognized the
existence and importance of these informal court structures and pro-
posed that they receive official recognition as part and parcel of the
traditional court hierarchical structure.458 However, the SALC's pro-
posal does not form part of the legislative reform proposed by the
Traditional Courts Bill.459
Some scholars are of the opinion that the absence of a formalised
link between the formal and informal structures is a matter of con-
cern, especially from a gender perspective. Himonga and Manjoo,460
for example, are of the opinion that not all justice structures operat-
ing in the "autonomous social field of the family are equitable and
consistent with the constitutional principle of non-discrimination".
They are also worried that the outcomes of disputes in the official
courts may be influenced by the outcomes of disputes in the unoffi-
cial court, in particular to the disadvantage of women. However, the
fact that no formal links exist between formal and informal tradi-
tional courts should not be a stumbling-block for promoting gender

457
Koyana, Bekker and Mqeke "Traditional Authority Courts" at 177.
458
SALC (2003) at 5-6.
459
See the discussion below at 4.
460
Chuma Himonga and Rashida Manjoo "The Challenges of Formalisation,
Regulation, and Reform of Traditional Courts in South Africa" 2009(3)2
Malawi Law Journal 157-181 at 173.
317

equality. The South African Bill of Rights461 applies not only to law
but also to conduct. Thus, all conduct, including instances of gender
inequality in the informal courts, can be subjected to the human
rights provisions in the Bill of Rights.

4. Legislative reform

As already alluded to, in 1999 the SALC established a committee to

perform a project (Project 90) entitled "The Harmonisation of the
Common and Customary law".462 At first the committee focused only
on the recognition of customary marriages and the application of cus-
tomary law in the light of the new constitutional guarantees affording
customary law an equal place in South Africa’s legal system. An in-
vestigation into the legal position of traditional courts soon followed
and in 1999 a discussion paper dealing with the main issues was pub-
lished.463 A final report was published in 2003.464 The final report
contained a draft Bill for the regulation of traditional courts, which

461
Constitution: section 2 read with chapter 2.
462
SALC Issue Paper 4 on the Harmonisation of the Common Law and the Indigenous
Law (The Application of Customary Law: Conflict of Personal Laws (Project 90
Pretoria 1996).
463
SALC (1999) at xi-xii.
464
SALC (2003). The SALC has issued four reports in total dealing with
aspects of customary law, including various discussion documents. For
more information, see the official website of the SALRC at
http://www.justice.gov.za/salrc/index.htm.
318

was presented to the Minister for Justice and Constitutional Devel-

opment in 2002.465 The draft Bill was never introduced in parliament.
In 2009 the Department issued a policy document entitled Policy
Framework on the Traditional Justice System under the Constitution (the Policy
Document),466 which culminated in the final Bill. The Bill was intro-
duced into parliament in 2011, but it was referred back to the prov-
inces on 15 October 2013 for further deliberations. There is no indi-
cation yet when the deliberations will reach their final conclusion or
when the Bill will be transformed into an act.467
Although it is uncertain when and if the Bill is going to be trans-
formed into law, it is necessary to make a few preliminary remarks
regarding its contents. First of all, the Bill would replace the provi-
sions of the Black Administration Act dealing with formal traditional
courts, if accepted in its current form. The objects of the Bill as set
out in clause 2 are, first of all, to confirm the values of a traditional
justice system (restorative justice and reconciliation) and, secondly, to
align traditional courts with the Constitution.468 Two additional aims,

465
SALC (2003) at Annexure A.
466
For a copy of the Policy Document, see
http://www.justice.gov.za/legislation/tradcourts/20090303_tradcourts.ht
ml (date of access 7 March 2014).
467
For more information on the status of the Bill, see Parliamentary
Monitoring Group, accessible at
http://www.pmg.org.za/print/report/20131015-traditional-courts-bill-
referral-provinces-for-further-deliberations-criminal-law-forensic-
procedures-amendment (date of access 5 Marh 2014).
468
Traditional Courts Bill: clause 2(a) & (b).
319

as listed in the Bill, include the need to create a uniform legislative

framework for traditional authority courts and to enhance the "effec-
tiveness, efficiency and integrity of the traditional justice system".469
In accordance with contemporary legislation and international in-
struments, the Bill also contains a provision dedicated to "guiding
principles" which should apply in the application of the Bill.470 They
include, amongst others, the need to align the traditional justice sys-
tem with constitutional values; the right to human dignity; the
achievement of equality and the advancement of human rights and
freedoms; non-racialism and non-sexism; the promotion of access to
justice for all and restorative justice; the enhancement of the quality
of life of traditional communities through mediation; and the promo-
tion and preservation of African values based on reconciliation and
restorative justice. The overarching theme of the guiding principles is
the promotion of African values based on restorative justice and rec-
onciliation but within the framework of constitutional guarantees and
freedoms.
Clause 4 of the Bill provides for the designation of traditional leaders
as presiding officers of traditional courts for certain areas, and also
requires the Director-General of Justice and Constitutional Devel-
opment to keep a register of all the designated officers. The Director-
General also has the power to revoke or suspend their designation
469
Traditional Courts Bill: clause 2(c) & (d).
470
Traditional Courts Bill: clause 3.
320

under certain circumstances. A new addition to the current situation

is the fact that it requires from the designated officers to attend pre-
scribed training programmes and courses.471

Clauses 5 and 6 respectively deal with the civil and criminal jurisdic-
tion of traditional courts. Civil jurisdiction is granted only with regard
to disputes arising out of customary law and certain disputes are ex-
cluded from the jurisdiction of the court, such as constitutional mat-
ters, divorce matters, the custody and guardianship of children, the
interpretation of wills, claims above a certain amount which has yet
to be determined, and property issues.472 Criminal jurisdiction is lim-
ited to only certain offences committed (as listed in the schedule to
the Bill)473 in the jurisdictional area of the traditional court.474 The Bill
provides a list of sanctions and orders which the traditional court will
not be competent to give in a criminal dispute, namely:475 any inhu-
man, cruel or degrading punishment that involves detention or im-

471
The effect of the attendance requirement is ambiguous. The mere
attendance of a programme or course cannot guarantee the acquisition of
the necessary skills required from a traditional leader presiding in a
traditional court.
472
Traditional Courts Bill: clause 5.
473
They include: common law or statutory theft (including stock theft) that
does not exceed an amount determined by the Minister by notice in the
Gazette; malicious damage to property, where the amount involved does
not exceed an amount determined by the Minister by notice in the Gazette;
common assault; crimen injuria, where the amount involved does not
exceed an amount determined by the Minister by notice in the Gazette.
474
Traditional Courts Bill: clause 6.
475
Traditional Courts Bill: clause 10(1).
321

prisonment; banishment from the community; a fine in excess of the

amount which will be determined by the minister from time to time
by notice in the Gazette; and corporal punishment.
In contrast to the list excluded from the criminal jurisdiction of the
traditional court, the list of sanctions and orders that the court will be
competent to give in both civil and criminal disputes is wide-ranging
and ranges from the payment of a fine (in monetary terms or other-
wise); an order prohibiting certain conduct; an order for an uncondi-
tional apology to be made; an order requiring the parties to make
regular reports to the court regarding compliance with conditions
imposed by the court; an order directing the matter to be submitted
to the national prosecuting authority to take a decision if the matter
must be resolved in terms of the common law; an order to provide
some sort of service to the community or specified victims; an order
depriving the parties of any customary benefits that may accrue to
them in terms of the customary law; or a mere caution or reprimand.
This list is not exhaustive, and the Bill allows the court to make "any
other order that the traditional court may deem appropriate and
which is consistent with the provisions of this Act".476
The procedure to be followed in the court is in terms of customary
law, but the Bill introduces the two principles of natural justice into

476
Traditional Courts Bill: clause 10(2)(l).
322

the procedure, viz. audi alteram partem (hear both sides) and nemo iudex
in propria causa (the impartiality of the judge).477
Clause 11 prescribes the procedures to be followed if someone fails
to comply with the sanction of a traditional court. The sanction of a
traditional court has the effect of a civil judgment of a magistrate’s
court and is enforceable by execution in the magistrate’s court having
jurisdiction in the area where the traditional community is present.
The magistrate’s court remains thus the final forum of execution of
the orders of the traditional courts.
The possibility of an appeal to a magistrate’s court is retained in
clause 13. This route is available to a convicted offender in a criminal
case or an aggrieved party in a civil case. The magistrate’s court may
confirm the order of the traditional court, amend or replace it, or
dismiss it. In addition, clause 14 makes provision for review proceed-
ings to a magistrate’s court on the following grounds: the traditional
court acted ultra vires; without jurisdiction; with gross irregularities re-
garding the proceedings; or with personal interest, bias or malice.
One author is of the opinion that all judgments of the traditional
courts should be appealable to the magistrates’ courts but recom-
mends that dedicated officers be installed to deal with customary law
concerns.478 As with the training of traditional leaders, these officers

477
Traditional Courts Bill: clause 9.
478
Sindiso M Weeks "Beyond the Traditional Courts Bill: Regulating
Customary Courts in Line with Living Customary Law and the
323

must receive instruction on how to deal with customary law issues,

especially with living customary law. In other words, the integration
of ordinary and traditional courts must be based on a mutual under-
standing of both systems.479

The Bill has not received entirely favourable reviews. Although the
intention of the Bill is to resolve existing problems with the tradi-
tional courts, to bring them in line with the Constitution, and to fa-
cilitate the links between them and ordinary courts, some scholars
disagree that these objects have been realized.
Weeks480 has at least five concerns regarding the Bill, viz.: the consul-
tation-process of the Department of Justice and Constitutional De-
velopment does not include ordinary people, including women and
the youth, in rural areas; the Bill does not recognize lower-level or
unofficial traditional courts; the wide powers of the traditional courts
pertaining to sanctions increases the scope for abuse, as does the ex-
clusion of legal representation; people do not have an option to
choose whether they want to fall under a particular traditional leader’s
authority or not, neither do they have the choice to opt out of the ju-

Constitution" March 2011(35) SA Crime Quarterly 31-40 at 35. Hereafter

Weeks 2011a SA Crime Quarterly.
479
Weeks 2011a SA Crime Quarterly at 37.
480
Sindiso M Weeks "The Traditional Courts Bill: Controversy around
Process, Substance and Implications" March 2011(35) SA Crime Quarterly
3-10 at 5-10 (hereafter Weeks 2011b SA Crime Quarterly).
324

risdiction of the traditional court; and, finally, the Bill provides only
lip service to gender equality and does not afford substantive equality
to the female members of a traditional community.

The first bone of contention for the author, Holomisa,481 is the fact
that the Bill centralizes power in the traditional leaders whilst tradi-
tional justice systems are based on layered authority. Additionally, he
is of the opinion that government should leave the traditional courts
as they are, to evolve and adapt to changing circumstances in their
own time or in their own way. He also does not agree with the accu-
sations of gender discrimination voiced by some. According to him
these critics do not understand customary law or the functioning of
the courts, and he concludes with a sweeping statement by saying
that the critics of the traditional system are not up to date with the
changes in customary law, "[t]hey are content with rehashing colonial
drivel, which presumes that African culture is inferior to western cul-
ture".482

Another scholar is particularly critical of the Bill and compares it with

pre-constitutional legislation which impaired the dignity of Afri-

481
Phathekile Holomisa "Balancing law and tradition: the TCB and its
relation to African systems of justice administration" 2011(35) SA Crime
Quarterly 17-22 at 18-20.
482
Holomisa 2011 SA Crime Quarterly at 20.
325

cans.483 His arguments echo other criticisms of the Bill’s failure to

recognize the multi-layered levels of the traditional justice systems
(formal and informal), including the important links between these
layers.484 He finds the affirmation of authority on the grounds of ju-
risdictional boundaries especially problematic and contrary to cus-
tomary law values, and declares:485
Some of the provisions of the TCB [Bill] will suffocate the
dynamism of those communities defined as “traditional
communities”, and will impose cultural hegemony at the ex-
pense of peaceful coexistence. This may amount to cultural
chauvinism.
The fact that such communities are not homogeneous, according to
him, justifies the inclusion of a clause enabling people to opt out and
choose their own forum for justice.486

The Bill was meant to come into operation on 29 June 2008 but the
resistance against its implementation, especially from women's' rights
groups, has been so severe that the Bill has been referred back to the
provinces for further deliberations. There are no indications yet what
the future outcome of the process is going to be.

483
Nomboniso Gasa "The Traditional Courts Bill: A Silent Coup?" 2011(35)
SA Crime Quarterly 24-29 at 23-29.
484
See also Weeks (2011a) at 33 for a similar viewpoint.
485
Gasa 2011 SA Crime Quarterly at 24-25.
486
Gasa 2011 SA Crime Quarterly at 27.
326

5. Conclusion

The dispensing of justice in traditional courts is an alternative method

to solve disputes within traditional communities living in rural areas.
The advantages of the traditional justice systems outweigh the disad-
vantages.
The advantages of traditional courts include the following:487 they are
accessible, geographically and socially; they are affordable (the low
transport costs, the minimal court fees and the absence of expensive
legal practitioners); they apply customary law, which is familiar to the
traditional leader and the litigants; they use simple and informal pro-
cedures; and they speak a language familiar to the litigants.
The disadvantages include:488 they exclude legal practitioners contra
to the constitutional guarantee that every accused has the right to
"choose and be represented by a legal practitioner";489 they apply an
inquisitorial procedure in contrast to the accusatorial procedures fol-
lowed in the mainstream courts, resulting in a presumption of guilt,
which is against the principle of the presumption of innocence;490
they generally do not allow females as presiding officers and wit-
nesses; and the members of the courts generally do not have any legal
training.
487
SALC (1999) at 1-3.
488
SALC (1999) at 3-6.
489
Constitution: section 35(3)(f).
490
Constitution: section 35(3)(h).
327

The South African government realizes that an estimated 14 million

South Africans constitute the traditional communities that continue
to adhere to customary law, and that the "institution of traditional
leadership491 plays a crucial role in promoting social cohesion, peace
and harmony" in these communities.492 Traditional leaders resolve
disputes in their communities through the traditional court structures
and the application of customary law values and principles. Govern-
ment is also of the opinion that traditional courts help in addressing
crime and that their existence empowers communities to resolve mi-
nor crimes and disputes, thus ameliorating the backlog being endured
in the mainstream legal system.493
In addition, it might destabilize many traditional communities if they
were denied access to their familiar justice mechanisms. The relation-
ship between traditional authorities and the government has been de-
scribed as follows:494

491
Traditional leadership is defined in terms of section 1 of the Traditional
Leadership and Governance Framework Act 41 of 2003 as: "the
customary institutions or structures, or customary systems or procedures
of governance, recognised, utilised or practised by traditional
communities”. In addition, a customary institution or structure is defined
in the same provision as "those institutions or structures established in
terms of customary law".
492
Policy Document at 6.
493
This fact appears from the minutes of the parliamentary meeting between
the Department of Justice and Constitutional Development and the
Portfolio Committee on Justice and Constitutional Development on 1
September 2009. The proceedings are available at
http://www.pmg.org.za.
494
Himonga and Manchoo 2009 Malawi Law Journal 159.
328

The recognition by a democratic state, that chiefs are at the

centre of local political, social and economic life, particularly
in rural areas, has led to a relationship of dependence be-
tween the state and traditional institutions, with the state
“encapsulating” chiefs through its legislation and resources,
and at the same time, the state also borrowing some legiti-
macy from the chiefs.

In accordance with local political developments and global trends, it

is believed that cultural diversity must be celebrated and promoted.
In the past, legislation was designed to keep South African society di-
vided along racial lines, resulting in the unequal development of the
nation’s various racial groups. The law was used to force racial sepa-
ration in society, publicly and privately, and one might have an un-
easy feeling that legal plurality, in which different justice systems are
made to apply to different sets of people, is nothing more than a
manifestation of the old apartheid system. However, the Constitution
accepts diversity and recognizes that it may be necessary in promot-
ing diversity to create express provisions for difference. This new ap-
proach towards difference or diversity is reflected in contemporary
legislative and judicial policies.495 As maintained by Gasa496 it is an

495
Christa Rautenbach "Celebration of Difference: Judicial Accommodation
of Cultural and Religious Diversity in South Africa" 2010(10)2 The
329

imperative for the purpose of nation-building to restore those mar-

ginalized cultural practices.

The fact that the progress of the Traditional Courts Bill has been
hampered by women's rights groups in particular is indicative of the
fact that customary law can no longer fly under the constitutional ra-
dar. The institution of traditional courts cannot escape the demands
of a constitutional order based on human rights. Legislative reform in
this area should thus conform to basic constitutional imperatives pro-
tecting human rights, even in the rural areas where the law is often
absent.

International Journal of Diversity in Organisations, Communities and Nations 117-

131 at 126-127, notes 47 & 48.
496
Gasa 2011 SA Crime Quarterly at 23.