Urban Traditional Courts in South Africa
Assessing the functioning of Urban Traditional Courts in South Africa.
In their third paper, the DGRU as part of a bigger project on judicial corruption and administration, and with the intention of gaining a better understanding of the state of corruption in the lower courts, assessed the functioning of Urban Traditional Courts in South Africa.
Formerly known as chief’s courts, traditional courts are designed to deal with customary issues in terms of customary law. In such cases, the chief and his headmen decide cases brought before them by parties within the area of jurisdiction, using indigenous law and custom.
Formerly known as chief’s courts, traditional courts are designed to deal with customary issues in terms of customary law.
A person with a claim has the right to choose whether to bring the claim to the traditional court or a magistrates’ court. A person who is dissatisfied with the decision in a traditional court may take their matter to the magistrates’ court for adjudication.
Given that traditional (chief ’s) courts have jurisdiction to hear certain matters at the level of magistrate’s courts, traditional courts were included within the broader project research.
It is important to note, that the traditional courts are by and large still regulated by traditionalism – and considered to be outdated and inappropriate. A Traditional Courts Bill was tabled before parliament in 2008 with the intention of regulating the structure and functioning of traditional courts. However, the Bill in its various forms has been met with strong public opposition.
Opposition has generally focused on the fact that the Bill will legalise and entrench current discrimination against women, and in effect creates a separate legal system for 17 million people.
In 2019 the Justice and Correctional Services Portfolio Committee in the National Assembly (NA) adopted the Bill. On 10 February 2021, the Bill was approved by the National Council of Provinces (NCOP). The Bill has now been scheduled to return to the Justice and Correctional Services Portfolio Committee in the National Assembly (NA) for finalisation. Thereafter, the Bill will go to the plenary of the NA to be voted on. Should the Bill be successful at the plenary of the NA, it will then be sent to the President for signature. Despite all the controversies surrounding the Bill if the President signs it, it could come into law during 2021.
Jurisdiction of the Traditional Courts
Whilst the DGRU did not manage to conclude a perception survey of the traditional court users as intended; the insights gained were nonetheless valuable.
The research was exploratory, and the court observations were conducted in the Mamelodi traditional court only. Thus, the observations and comments can only be applicable to the Mamelodi traditional court.
Traditional courts have been in townships since the 1980s. They are overseen by the traditional chiefs and their respective headsmen, whether 4 or 16, who assist and preside over the cases with the chiefs.
It is their belief, that this structure, by its very nature, precludes them from corruption, as the more persons that preside over a case, the lesser the risk of corruption.
Traditional courts have jurisdiction to hear all cases except for criminal cases such as murder, rape and robbery. Traditional courts also do not have jurisdiction to deal with wills, trusts and estates related matters. That said, the reality is a little different. Though traditional courts are mainly approached to deal with divorce cases, they also in practice, deal with cases relating to theft, as parties often find that such cases are expeditiously resolved through traditional courts. When presiding over such cases the court strives to reconcile parties. In fact, the approach of the traditional court follows restorative justice principles, both in divorce or instances of theft, in that the aim is always to return or restore, rather than merely a punitive punishment against the perpetrator.
Traditional courts have been in townships since the 1980s. They are overseen by the traditional chiefs and their respective headsmen, whether 4 or 16, who assist and preside over the cases with the chiefs.”
General observations and recommendations
i) Lack of statutory regulation
While no obvious corruption was observed, the system itself remains vulnerable to potential corruption and other abuses. A satisfactory statutory framework is required, to ensure norms and standards across the board can be applied, balanced with the different traditions and customs practiced around South Africa.
Particular areas of concern include:
(a) The lack of legal training could allow for cases to be decided incorrectly most especially as it relates to theft and debt.
(b) There is no shared written outcome. Once the parties leave the traditional court there is nothing tangible to rely on as proof of the decision made by the traditional court. Should disagreement arise regarding the hearing at the traditional court there will be no proof of the ruling / order made by the court, other than the handwritten notes taken in the hearing.
(c) The court receives and keeps monies due to complainants until the total debt is paid. There is no bank account that this is put into.
Both traditional courts chiefs and the advisory councils of headmen were composed entirely of men. Whilst this is understandable given the history and nature of customary law it is incompatible with the transformation imperatives of the Constitution and the status and function of the traditional courts within the broader justice system.
iii) The dress code required by the court is also incompatible with gender equality, in that women are not allowed to wear trousers and must have their heads covered. Given the fact that the Traditional Courts Bill speaks to the need to achieve equality and promote non-sexism, this practice will need to be reconsidered once the Bill is passed.
It is our understanding that the South African Judicial Education Institute (SAJEI) has been offering training to traditional leaders in their adjudicative roles. However, from the observation at the Mamelodi traditional court it does not appear that such training is having the necessary impact on traditional courts.
Decisions and judgments are made purely on the basis of corporate opinion, which again leaves the court proceedings and judgments vulnerable to misuse.
The lack of statutory regulation of traditional courts could allow for a range of abuses and malpractices, bringing these important forums into disrepute.”
The main goal of this formal legal training would be to align traditional courts with the values entrenched in the constitution by mentoring and training traditional leaders to give decisions that are in line with the constitution. Furthermore, it would enable the court to adequately caution against conduct by the parties that would lead to dire consequences should such cases be referred to the Magistrates’ Court.
Traditional courts play a pivotal role in dispute resolution. The focus of the formal legal training would be on mediation to enhance the chiefs’ and the headman’s mediation skills.
The focus would also have to be on the National Credit Act and the way magistrates deal with outstanding debt related matters (section 65 cases).
Writing orders / ruling should also form an essential part of the training. This aspect of the training would be beneficial.
The principles of restorative justice observed are to be commended. Given the adversarial nature of the formal justice system… the traditional courts have an important role to play.”
v) Restorative justice
The principles of restorative justice observed are to be commended, especially in matters that were not purely customary in nature. Given the adversarial nature of the formal justice system and the long delays in achieving results, the traditional courts have an important role to play especially regarding theft and the like.