Historical Context and Perspectives of The

Journal of Global Peace and Conflict 1(1); June 2013 pp. 49-65 Freddie & Koketso

Law and Traditional Justice System in South Africa: A Hybrid of Historical and Constitutional Discourse

Prof. Khunou Freddie Associate Professor Faculty of Law School of Post Graduate Studies And Research North West University (Mafikeng Campus),South Africa

Mogomotsi Koketso South Africa

Introduction

The institution of traditional leadership has Pre-Colonial Epoch played and still plays a critical role in the Origin and Nature of Traditional Courts administration of justice. During the pre- colonial era, the institution of traditional The most important institutions which were leadership was a political, administrative and responsible for the administration of justice judicial centre of justice. It is for this reason that during the pre-colonial South Africa were the primary objective of this article is to discuss traditional courts. According to Bekker, a legal history of the traditional courts and the traditional courts in South Africa and the rest of administration of justice in South Africa. This Africa were basically traditional institutions.i It article contends that the respect and status is of great importance to mention that pre- accorded to traditional courts during the pre- colonial traditional courts were deeply rooted colonial era were greatly eroded by colonial and and embedded in the inner system of indigenous apartheid regimes in South Africa. (African) culture and customs of the traditional societies. In this regard, Ntloedibe stated that The intention was to obliterate and deny the powers, duties, actions and obligations of traditional leaders their proper role of traditional leaders were tied into the inner administration of justice within their chambers of custom and culture that became communities. With the advent of the synonymous with the principle of constitutional democracy in South Africa, the ubuntu/botho.ii institution of traditional courts is required to redefine itself within the framework of a At the centre of the whole concept of democratic dispensation. This article also ubuntu/botho was the belief that no person was demonstrates how the traditional courts should an island. The Tswana aphorism which captured be transformed and aligned with the new this philosophy was that motho ke motho ka constitutional imperatives. It is within this batho ba bangwe.iii The status of traditional context that the new role of traditional courts is courts in pre-colonial societies must be viewed articulated to define their roles in a democratic in the light of the specific social organization of South Africa. African societies. © American Research Institute for Policy Development 49 www.aripd.org/jgpc Journal of Global Peace and Conflict 1(1); June 2013 pp. 49-65 Freddie & Koketso

The traditional courts were generally communal It is important to note that lack of separation of in character. It was within this framework that powers did not mean that traditional leaders African law functioned. As Rakate correctly were not impartial because they were part of the pointed out:iv executive arm of government. This was so because the judicial process was mainly aimed Ideologically, indigenous African law is at mediation and reconciliation rather than of the communal or socialist type, in categorically finding for or against a litigant. It contrast with the general law [Western must be emphasised that this procedure worked law] which is more of an individualistic well in predominantly traditional societies with or capitalistic nature. The ethos or subsistence economies. social imperative of the traditional African community is social solidarity. According to Bekker, as far as it could be Likewise the principle of social ascertained, no serious irregularities or harmful practices have occurred in pre-colonial solidarity forms the underlying ix principle of indigenous African law. societies. It should be noted that Bekker did The maintenance [of law and order] and not suggest that Traditional Courts had no restoration of social solidarity does in irregularities at all. What Bekker meant is that fact pervade the whole fabric of that the irregularities which were there could not do a lot of harm to justice. Bekker further analysed law. The principle of social solidarity x expresses itself in the form of kinship this matter and stated that:

communalism. It is argued that at the level of

Furthermore, it is critically important to traditional leaders, the judicial emphasize that a Traditional Court did not have process administering largely simple a specialized law where there was a sharp customary law rules in simple cleavage between law and what an ordinary disputes, a formal separation of person regarded as fair and just. In a Traditional powers between the executive and the judiciary is not crucial. Court, a person was tried by his village men and women and as a result there was no gap between This kind of procedure outlined by Bekker was him or her and the court. It was also difficult to simple and flexible. Moreover those present in draw a clear distinction between law, on the one court saw themselves as part and parcel of the hand, and public morality on the other. The adjudication process. All men were sensible of traditional leader was the executive, legislature the necessity of justice to maintain peace and and judicial head of the traditional community.v order for the general maintenance of society. Justice emanated from law itself. Law was a Traditional leaders served in these courts as powerful tool used to discipline, correct and supreme judges and acted with the advice of shape human personality. Tradition, culture and their Executive Council.vi Jobodwane pointed custom were building units of individual out that in traditional South African societies, character. The individual was but part of the the idea of separation of powers was an alien entire group. Therefore, if an individual concept. committed an offence the whole group was This means that the separation of the entire involved and every member was liable, not as judiciary from the traditional executive and an individual but as part of the group or clan xi parliamentvii was completely unknown to that committed the wrong. Hartland traditional leaders and their subjects.viii established that pre-colonial societies were organised in clans and members of these clans regarded themselves as brothers and sisters. © American Research Institute for Policy Development 50 www.aripd.org/jgpc Journal of Global Peace and Conflict 1(1); June 2013 pp. 49-65 Freddie & Koketso

Their duty to one another was of mutual trust, The courts of traditional leaders had jurisdiction support and defence.xii It was under this over criminal and civil cases. As Holomisa traditional arrangement that, a traditional leader stated, court proceedings were held openly both through his court played a conciliatory and verbally and figuratively. Normally court mediatory role. The traditional leader was a proceedings were conducted under a tree or near unifying force of the traditional community. a cattle kraal. The processes and procedures

He was the personification of unity and a were all inclusive. All present in the court were mediator between his people. In addition, the given the opportunity to participate in both the traditional leader was assisted by his councillors examination and cross-examination of all the and the elders of the community. Traditional parties to a case. The proceedings were councillors played an important judicial and conducted informally and in a relaxed atmosphere.xv political role in traditional life. Traditional leaders were expected to be impartial at all The pre-colonial Traditional Courts operated on times. Such an action would be a serious an inquisitorial and reconciliatory basis. The violation of custom. Schapera correctly noted inquisitorial procedures were primarily aimed at that:xiii effecting compromises and reconciliation. xvi The Chief himself was not above the Hammond-Tooke succinctly stated that:

law. Should he commit an offence … Important here is the Lobedu against one of his subject, the victim custom of Lu Khumela [to beg pardon can complain to the men at kgotla or to of one another] by which one of the Chief’s near relatives, who reconciliation is reached by an will then report the matter to the emissary who intervenes between two

Chief. The latter is expected to make parties usually accompanied by the amends for the wrong he has done. slaughtering of a goat [Nguni hlamba Should he not do so, it is said that he ritual]. This granting of pardon stops may be tried before his own court, his court procedures and … it is senior paternal uncle acting as judge. estimate[d] that about 80 percent of disputes are solved in this way

Court Proceedings and Evidence without ever coming to court …

Rules of Procedure The inquisitorial procedure of African

Van der Merwe noted that it was reasonable to Traditional Court system played a much more assume as a matter of principle that the active role during and sometimes even before procedural systems of the traditional court the trial. The trial was not viewed as a contest structures were honest attempts to discover and between two opposing parties. The accused was protect the truth. The existence of different examined because he or she was considered a methods of discovering and protecting the truth valuable source of information. The accused was not only the object of enquiry but a full can be explained in the light of history because xvii the main principles of court procedure and procedural subject. It is in this context that the procedure of the Traditional Court was best evidence were not the products of scientific xviii observation but rather embodied and described by Kriege as follows: represented a system of values shaped by the course of the political, sociological and cultural history of people.xiv

The bare legal principle is only one Rules about hearsay evidence were not strictly factor in the situation. More often than endorsed. However, Holomisa cautioned that not it must give way to what is far the system should not be understood to mean more important than legal principle that there was chaos and disorder in those that is to the friendly re-adjustment of courts. There was in fact decorum and high the disputing parties. The great aim is respect for authority of court and the traditional not to adjudicate upon conflicting leader.xxi According to Van der Merwe, the rights according to strict law but to use Shonaxxii justified the admission of hearsayxxiii the principles of justice wisely in order on the basis of saying that:xxiv to effect reconciliation and to re- establish good relations. Legal If one can get to the tendrils of the procedure is thus not absolute, it was pumpkin plant, then one can sooner or subservient to the human situation and later get to the pumpkin. man was not made for law but law was made for man. [Underlining Supplied] After evidence has been led and gathered from According to Kriege, justice was always the witnesses and parties involved, a verdict was realised in a Traditional Court. Kriege is reached. This was done normally at the therefore correct to state that:xix conclusion of all the deliberations. It was then

If a reconciliation ensures, the court that a traditional leader who acted as a presiding not only rejoices but watches from officer pronounced the judgement. Reasons for afar, vicariously participating in the judgement were clearly articulated to the parties return of the prodigal son, the concerned. The traditional leader’s decision was to be approved by his councillors. wrongdoer with the beer brewed and brought to become reconciled with his According to Holomisa, the main objectives of father, the aggrieved party. the traditional administration of justice were

It was in this spirit of reconciliation that centred around the following key principles, namely:xxv Traditional Courts and adjudicators perceived their role in the dispensation of justice. It is . Rehabilitation of the offender; quite evident that African jurisprudence in pre- . Compensation of the aggrieved party; colonial societies was deeply rooted in the . Promotion of peace within the philosophy of collective responsibility. community; and

. Promotion of reconciliation and Rules of Evidence xxvi inquisitorial procedure. The bulk of evidence was obtained through witnesses who had knowledge of the relevant Colonial Paradigms and Dimensional facts or circumstances. Such evidence was Changes produced by way of oral statements. Truthfulness was guaranteed through the vehicle When the settlers from the outside (Europe) of cross-examination and not by taking of oath. assumed political dominance over an indigenous Penetrating questions from the judge (traditional population in South Africa, decisions had to be leader) and his councillors served to elicit a full made in respect of the system of social control and faithful account of all the relevant facts and the administration of justice. surrounding a case.xx

The white settlement in South Africa triggered a In other words, a non-recognition policy was considerable number of questions with regard to applied. The British government claimed that customary law and its institutions, especially the the reason for non-recognition policy was part traditional authority courts structures. of the government to civilize the black population. However, it was evident that the This gamut of questions include inter alia: Was policy was part of a government programme to there to be a complete annihilation of the undermine indigenous political and judicial indigenous law? Was the indigenous system of authority. Therefore it is important to emphasize governance and Traditional Courts to be that the early British administration in the Cape supported or not? Was part of the indigenous xxvii was resolutely opposed to recognising system to be rejected or accepted? The aim customary law. of the white settlers was to disintegrate at least overtly African institutions and customs as In the territory of Transkei which was annexed much as possible. The standard procedure was in 1984 appeals of civil matters between blacks were heard in the Native Territories Appeal to recognize traditional institutions except xxx insofar as it ran counter to what the British Court and later to the Cape Supreme Court. considered general principles of right and The white Magistrates enjoyed appellate wrong. jurisdiction to hear appeals in civil disputes between blacks in the Transkei. In Transvaal Bennett explained that when Britain occupied traditional leaders, Sub-Native Commissioners the Cape, black customary law was dismissed as xxviii and the full Native Commissioners for blacks barbarous and pre-legal custom. However, it were appointed by the colonial government to should be borne in mind that the British adjudicate all civil matters between backs in so government retained Roman Dutch law as the far as it did not conflict with the principles of law of the Colony of the Cape of Good Hope to natural justice. the exclusion of African customary law and its institutions. The British non-recognition policy Natal was the first colony in South Africa to of African customary law impacted negatively recognise and enforce customary law. As a on the institution of traditional leadership at the result, the Traditional Courts were also accorded Cape Colony. the recognition they deserve accordingly. The traditional leaders were permitted to apply and During the early years of British occupation, the enforce customary law in their courts. The British settlers undermined the political reason for that compromise was that the colonial authorities of the Khoisan in the western Cape government was of the view that it would be in xxix and the Xhosa in the eastern Cape. The a good stead to control the large number of advent of colonialism completely changed the displaced persons through the institution of traditional system of administration of justice. traditional leaders. As stated above, during the pre-colonial era, each colony had its own court structure. The The policy of indirect rule was recommended to British policy differed from one province to provide a situation regarding displaced black another. For example, the British in Cape persons in Natal. Therefore, blacks in the colony of Natal were placed under traditional Colony did not recognize customary law as a xxxi system of law, let alone Traditional Courts. authorities. Furthermore, in Natal legislation was promulgated to provide inter alia that The traditional leaders were replaced by white Traditional Courts, Magistrates Courts and a Magistrates. These Magistrates were not Special Court called the Black High Court permitted to apply customary law. enjoyed jurisdiction to adjudicate matters in which parties were blacks. © American Research Institute for Policy Development 53 www.aripd.org/jgpc Journal of Global Peace and Conflict 1(1); June 2013 pp. 49-65 Freddie & Koketso

In 1895 the Natal Black High Court was The Black Administration Act empowered the abolished and replaced by the Supreme Court. State President to appoint a traditional In 1898, a new Natal Black High Court was re- leaderxxxix while section 2 (8) enables the instituted to hear civil matters between blacks. Minister to appoint an acting traditional leader, These courts had the power to hear civil matters headman and acting headman.xl The Traditional between the blacks provided that the decisions Courts were retained under the 1927 xli of the court were not inconsistent to the dispensation. It was explained by Bennett that: principles of natural justice or equality.xxxii Although in many respects the Chiefs’ In Transvaal a policy similar to that of Natal Courts function imperfectly, their was adopted. The State President was made the retention is widely supported both by Paramount Chief of the black people in blacks and by experts in black Transvaal.xxxiii A Court of Appeal under the customary law. These courts represent helmet of the Superintendent of Natives was at once an indigenous cultural established and dealt with all the appeals from institution and an important instrument the decisions of both the Traditional Courts and of reconciliation. For these reasons a Commissioner’ Courts. Therefore it is rural black will often prefer to have his significant to note that under these political case heard by the Chief’s Court. circumstances, the same policy was applied in the Orange Free State. The Bold and Ugly Face of the Black Administration Act Law and Politics of the Union Government It is significant to mention that the application Synopsis of the Black Administration Act 38 of the Black Administration Act throughout Of 1927 South Africa did a mortal blow to the entire

institution of traditional leadership. This piece In 1910 the Union of South Africa was formed of legislation undermined and interfered with when the previously independent provinces of the traditional authorities and Traditional Natal, Orange Free State, Cape Province and xxxiv Courts. Hence, Baletseng and Van der Walt Transvaal were amalgamated. The principal remarked:xlii concern of the union government was to impose During its application the 1927 Act uniformity. The individual history and the changed the institution of traditional special circumstances of each of the provinces authorities [traditional courts] to a had produced curiously diverse court structures xxxv point where the institution had become and degrees of recognition of customary law. the symbolic institution amongst the The desire for uniformity was coupled with the indigenous communities. It has eroded need to promote tribalism and traditional the institution to an extent that today authority. The union government believed that there is a reigning confusion as to what the return of traditional institutions could deflect the traditional authorities [traditional the challenge posed by a growing urbanized xxxvi courts] are. African proleterate. If one looks at the provision of the Act,

According to Olivier, the Black Administration one is left with no option but to Actxxxvii was enacted to establish a national question the authenticity of the system to provide for among many other things, institution. Only in a few settlements the recognition and application of customary does one get a feeling of what is law and the creation of a separate court happening but in most villages and xxxviii settlements there is a lot of uncertainty. structure.

The Black Administration Actxliii had generally General Effects of Colonialism and reduced Traditional Courts to a very different Repugnancy Clause institution. There is no shred of doubt that the Black Administration Act had a profound The first problem the European colonial powers negative effect on the judicial authority and had was to deal with the physical control of the functions of traditional leaders. For example, the territories of the traditional authorities’ areas. Act recognized the judicial authority of This had to be won at the expense of the traditional leaders subject to the authority of the traditional leaders. According to Ndima, at the Minister acting on behalf of the Governor- time of colonization the pre-colonial people of General (later the State President). What South Africa lived in an order regulated by transpired was that most of the customary customary law subject to the repugnancy functions of the traditional leaders were vested proviso.xlvi in the office of the Governor-General. The colonial government adopted the pre- The traditional leaders were authorized to hear colonial Traditional Courts and used traditional civil disputes arising out of the black laws and leaders not only to administer justice, but also customs between black residents within their xliv for local administration. The Traditional Courts jurisdiction. It was unheard of a situation were of course, recognized in order to where a white person was tried by a Traditional administer justice according to African Court in South Africa. Where a case involved customary law. These courts co-existed with black and white parties even in the area of a colonial-type courts, which administered traditional leader such a matter had to be common law and were given limited jurisdiction referred to a Magistrate. In addition, the to apply African customary law usually on traditional leaders were not allowed to settle condition that such law was not repugnant to the disputes pertaining to nullity of divorce or principles of public justice or natural justice. separation in respect of customary marriage. The recognition policy pertaining to the This is an example of how the government traditional courts was among other things based undermined the expertise of traditional leaders on the presumption that since blacks knew regarding matters of the dissolution of marriage. African law better than the Europeans (white This legislative arrangement undermined the Magistrates), the settlements of disputes was left xlvii indigenous legal acumen and knowledge of the to the Traditional Courts. traditional leaders and placed them on the As a consequence, jurisdiction was only periphery of judicial adjudication. The Act confined to disputes between blacks only and simply implied that traditional leaders were not effect could be given African customary law in capable of settling divorce matters. This statute so far as it was not repugnant to public or drastically and dramatically altered the original natural justice. The English type Courts meaning of the institution of traditional leaders continued to have concurrent jurisdiction with and caused it to evolve in a manner that did not the indigenous courts. In addition as Bekker remain faithful to its indigenous concept and xlv once again noted, traditional authorities and communities. The Act was an attempt by the traditional leaders continued to be used not only union government to create tribes and traditional for the administration of justice but also as authorities as if they were new institutions and agencies for local government.xlviii However, as failed to build on what was already in existence. Dlamini noted the Traditional Courts existed in the pre-colonial South Africa, although after the advent of colonialism, they ceased to be indigenously developed.

They no longer developed in response to the The colonial government claimed that by African needs but to those of the new political recognising the Traditional Courts, they had overlords. The process of de-culturization that paid due regard to indigenous culture.lii As a ensued resulted in those in contact with the consequence, the early period of colonisation colonial administration being dissatisfied with was characterised by the restriction of their own traditional system and the values of traditional rule, which meant among many other African justice. This paved the way for the things depriving traditional leaders of their imposition of Western notion of justice and judicial powers. But once the colonies had been values.xlix Generally, colonial rule was subdued, the advantages of retaining and authoritarian to the core. There were no utilising traditional leaders became evident. representative institutions. The administration Traditional leaders were made the agents of the not only implemented policy: they made it as Colonial State (Principal). As the agents of the well. Even the policy of “indirect rule” which colonial government, they were obliged to carry emphasised the powers and use of traditional out colonial policy including the policies which leaders and the creation of special “native” impacted negatively on the running of (black) courts to administer unwritten Traditional Courts systems.liii customary law was conceived for the benefit of the white administrators and not necessarily for One of the axioms of structural-functionalism the benefit of the traditional communities. was that traditional institutions (court structures) functioned to sustain social harmony. In Colonialism founded as it was on racism and consequences traditional leaders were assumed naked exploitation not only denied and inhibited to be entirely beneficial adjuncts to colonial fundamental rights of the African people but it rule. Immediate control of the traditional leaders was essentially against the promotion of African was vested in the Native Affairs Department of law and development of Traditional Courts.l In the colonial administration. Parallel to the the terrain of law, the repugnancy proviso was a Traditional Courts, the Department of Native hallmark of colonial rule in South Africa. This Affairs ran its own Commissioners’ Courts. provision was the main limitation on recognition of customary law. Although the repugnancy These courts were mainly staffed by white provision was phrased differently in various officials who performed both judicial and colonies of South Africa, the repugnancy clause administrative functions. The Commissioners’ was everywhere intended to serve the same courts were forum(s) that bridged the function namely, to prevent enforcement of Traditional Leaders’ Courts and the Western- customary laws or practices if they offended the styled Magistrates’ Courts. As a consequence, western moral standards. the Commissioners’ Courts catered for the litigants who were caught up in what Bennett The repugnancy clause affected the manner in called cultural transition.liv Both the which the traditional leaders applied and Magistrates’ Courts and the Supreme Courts enforced customary law in their courts.li The constituted a third level of the judicial system of colonial Traditional Courts of South Africa were the colonial administration. These courts the beacons of colonial government. As Bennett administered justice for the entire colonial correctly pointed out that they were intended not population. They were staffed by the only to settle disputes but also to proclaim the professional lawyers who possessed erudition of reach of government and the values of western law. civilisation.

The high fees of these courts precluded African The Act granted traditional authorities greater civil litigation and there was no attempt judicial authority with regard to the general whatsoever to adjust procedures to cater for administration of the affairs of their traditional African requirements. Consequently, all civil communities. cases as well as many petty criminal ones were confined to the Traditional Leaders’ Courts and The decisions or judgments of the Traditional Commissioners’ Courts.lvThe main problem Courts regarding the exercise of their powers in which was implicit in the judicial role of the tribal authorities were always deemed valid traditional leaders became apparent when the irrespective of the irregularities which might locals lost confidence in them. The reason occur. According to Letsoalo, that is why the being, the traditional leaders often acted as the term “Chief” becomes a synonym for puppet. agents of more or less unpopular government Traditional leaders were responsible to the apartheid government and no longer policies. This obviously meant that the courts lix they ran stood every chance of being tainted by accountable to their subjects. The traditional the dislike felt for the policy. leaders were placed at the centre of bureaucratic system through the creation of traditional Orthodox of the Apartheid Regime authorities at all levels. They were vested with the administrative, developmental, judicial and Bureaucracy and Policing Agents legislative powers. In fact they became the In 1948, the National Party (NP) won the public servants of the government while at the elections and ascended to political power. The same time they were expected to dispense party’s victory was marked by the formal justice or administer justice in their areas of introduction of apartheid.lvi The main goal of jurisdiction. NP was racial, cultural and political purity. One of the first tasks of the NP government when it Those who were against the apartheid took over was to interfere with traditional government directives were simply removed government. The government first achieved its from the office and replaced with those who were willing to adhere to the new objective of tribal divisions through the lx promulgation of the Bantu Authorities Act.lvii institutions. The traditional leaders’ responsibility for the administration of justice The Bantu Authorities Act was supposed to encouraged new trends of policing tough modify and give the definition to traditional measures for the maintenance of law and order. authorities and traditional governance. The Act Lodge noted that traditional leaders were established three tiers of administrative incited:lxi hierarchies in rural black South Africa. According to TARG Report, traditional leaders Be your own policy in your own were ex-officio members of these three tiers of interest, find out those men who tribal authorities. This arrangement brought respect authority and tribal traditional leaders into the centre of apartheid institutions (courts) and band them government system. As a result of their direct together as the Chief’s and headmen’s involvement and participation in the governance impis which will turn out when called activities of apartheid government, their to help keep your tribes and locations legitimacy was greatly eroded.lviii The apartheid clean and well behaved. Use government used traditional leaders through moderate violence…just like a good Chief could do. these authorities to exercise administrative and judicial control over the people in the rural areas.

The Black Authorities Act made traditional The above section further “rubberstamped” leaders both police officers and agents of the (agreed to) the judicial powers of the traditional government. This arrangement fragmented the leaders to apply customary law. However, legitimacy of traditional leaders who were Traditional Courts were not given a carte supposed to administer justice. Hence, most blanche power to apply customary law. These rural people viewed the institution of traditional courts were permitted to apply customary law leadership and their court systems with subject to certain conditions, namely: provided suspicion. Members of the traditional that customary law was not repugnant to the communities lost trust and confidence in the principle of public policy or natural justice. Still institutions of traditional authorities including the Act did not improve the judicial status of the their courts. Traditional Courts in respect of the application

Another Repugnancy Clause: Better or Bad? of customary law. The repugnancy clause contained in section 1 (1) of the Law of As already highlighted above, regarding the Evidence Amendment Act still limited the recognition and application of customary law, a application of customary law and allowed its provision was made by the Black application provided such customary law was Administration Act for the limited recognition consistent with the principles of public policy of customary law by a court structure especially and natural justice. established for dealing with disputes between blacks. In 1988, the parliament of South Africa It suffices to mention that both the Black enacted the Law of Evidence Amendment Actlxii Administration Act and section 1 (1) of the Law which also gave impetus to the recognition and of Evidence Amendment Act limited the judicial application of customary law. powers of the Traditional leaders’ Courts. Furthermore, since Traditional Courts fell This Act empowered all the courts to apply within the ambit of “any courts” it means that customary law subject to the repugnancy the said section conferred them with discretion provision. Section 1 (1) of the Law of Evidence to take judicial notice of law of foreign state. Amendment Act was identical to section 11 (1) lxiii This statutory dimension introduced a foreign of the Black Administration Act with the mode of adjudication in the judicial regime of important extension that all South African traditional customary. However, it was not clear Courts were since 1988 empowered to apply at the time of research that Traditional Courts customary irrespective of whether one or both had ever taken judicial notice of law of foreign parties were black. The above section provides state. inter alia as follows: Be that as it may, it is important to note that the … Any court may take judicial notice 1988 legislative dispensation did not strengthen of the law of foreign state and of the judicial powers of the traditional leaders indigenous law in so far as such law save to say that it empowered the traditional can be ascertained readily and with courts and other courts in South Africa to apply sufficient certainty: provided that customary law. indigenous law shall not be opposed to the principles of public policy or New Constitutional Dispensation

natural justice: provided further that it Current Debate and Politics shall not be lawful for any court to declare that custom of lobola or The legitimacy of the traditional leaders in bogadi or other similar custom is general and Traditional Courts in particular is repugnant to such principles. currently under the spotlight in South Africa.

Since the dawn of democracy, a debate around As far as contemporary practice has deviated the legitimate status of traditional leaders and from traditional norms, one might expect an their role within the framework of constitutional adjustment in traditional courts to reflect the democracy gained momentum. The legitimacy, change. It is consistently argued that some efficiency and honesty of these leaders and their traditional leaders spoke fondly of a time in the courts obviously differed from individual to past when a criminal would not be treated with individual and from era to era. Many traditional kid gloves. This perception, disturbingly, is leaders have a reputation of being stooges of the quite pervasive among traditional leaders and apartheid regime and many are said to be members of the traditional communities. This inefficient and corrupt. perception obviously stands in stark contrast to lxvi As Bennett noted, even the better traditional the ethos of the Constitution and Bill of Rightslxvii and particularly the presumption of leaders are considered politically conservative lxviii and lacking in the financial and management innocence until proven guilty. In exploring skills essential for administering their some of these debatable issues and in particular domains.lxivThese views and assertions are not the role of traditional leaders in the unique to the new South Africa, they are administration of justice and crime prevention, widespread in Africa. As a result, after it is submitted that the Traditional Courts should independence many African countries attempted be repositioned squarely within the framework to sideline traditional authorities and the of the constitutional democracy. traditional leaders’ courts but these institutions The key question should not be whether continued to thrive. Although this has never traditional leaders should perform such been the case in South Africa, it is beyond doubt functions, but how they can participate in the that the critics of traditional systems continue to delivery of local justice. Whatever the reasons, question the relevance and constitutional nature it is common knowledge that traditional of traditional leadership and court system. leadership has remained at the periphery of However, the institution still enjoys transformation in South Africa. This applies considerable public support. There is no doubt equally to their Traditional Courts. Even the about it. Thus the role of traditional leaders in South African Constitution fails to sufficiently the administration of justice is more in touch outline the leader’s constitutional status, powers with community sentiment than the ordinary and duties. As a consequence of this courts. According to Bennett, for ordinary constitutional arrangement, many traditional people in the rural areas traditional leaders are a leaders have a feeling of impotence and “legal and constitutional horizon” a marginalization in the current democratic personification of the moral and political order, government. The general view among them is protection against injustice, unseemly behavior, that their role and powers are being reduced in evil and calamity.lxv Currently the traditional many respects including the administration of leaders are expected to perform judicial justice. functions in their communities and often quite Constitutional Challenges contradictory roles of state bureaucrats. As a Corporal Punishment in Traditional Courts result, there are serious discrepancies between the demands of government, what traditional As stated earlier that, under the Black leaders “indigenously” do and the attitudes of Administration Act traditional leaders are not local communities. permitted to impose any of the following punishments: death, mutilation, grievous bodily harm and imprisonment.

However, the Black Administration Act allowed The reason being, it can be assumed that the Traditional Courts to apply corporal Africans are familiar with their own informal punishment to unmarried males below the age system of court. However, it is submitted that of 30 years,. With one exception these statutory in serious criminal matters involving drastic limitations are in line with section 12(1) of the penalties where an accused person may face Constitution. This section provides inter alia sanctions as extreme as banishment, loss of land that everyone has the right to freedom and rights or whipping, the exclusion of professional security of the person, which includes the right representation can not be defended. not to be tortured in any way and not to be treated or punished in a cruel, inhumane or The total ban on legal representation may have degrading way. to be modified and adjusted to take account of these cases and more importantly to be This exception relates to the whippings that may compatible with the standards of the be inflicted on juniors. This form of punishment Constitution. (corporal punishment) has already been considered by the constitutional court to be Traditional Justice and Race contrary to human rights norms in the case of S lxix Race is critical to establishing jurisdiction v Williams. Therefore, it is argued that the because in terms of the Black Administration traditional system of adjudication in respect of Act only blacks have access to Traditional corporal punishment falls short of new standards Courts.lxxii Restricting the use of institutions set by the Constitution. peculiar to a culture to members of that cultural

Legal Representation group is common. But in the context of the overall ethos and values of the Constitution it The principle of legal representation cut across does involve discrimination. Bennett argues that the customary notion of due process, which had the main purpose for allowing only Africans to no institution of professional representation. All litigate in Traditional Courts is to provide them adult males were expected to know the law and with a forum in keeping with their cultural the judicial procedures of court. As Bennett expectations. noted, only women needed assistance to present their case. However, this customary requirement If this is the case, an African may argue that if cannot pass the “gender test” of the he or she was forced to submit to the Constitution.lxx Under the new constitutional jurisdiction of a Traditional Court, this would dispensation women can no longer be regarded entail being subjected to a lower standard of as minors or perennial children. Therefore, they justice and would therefore be unfair should be allowed to represent themselves in the discrimination on the ground of culture or ethnic Traditional Courts. origin. Different arguments would not be helpful under the current constitutional Be that as it may, the rules regulating procedure circumstances. All what is needed is the type of in Traditional Courts bar the presence of arrangement that would serve all South Africans advocates or attorneys. There are two reasons irrespective of race or colour. It is imperative to for this procedure: to preserve an atmosphere of modify the Traditional Courts in such a way that informality and to ensure that wealthy litigants lxxi they can be proudly referred to as the “South do not gain an undue advantage. The policy African Courts” for the people of South Africa. of excluding lawyers from the Traditional Courts appears understandable and reasonable where civil claims and minor criminal offences are concerned.

Transformative Approach: Is it a Must? Therefore, the government and the people of South Africa are emboldened to proceed The re-orientation of Traditional Courts is confidently with the efforts to transform the crucial in advancing the transformation of traditional justice system. This will place it in a Traditional Courts. From the above discussion, position to meet the needs of all the people of it is quite clear that the Constitution is a South Africa.lxxvii One of the efforts of the transformative document protecting the society. democratic government is premised on ensuring In order to understand the transformative nature complete access of justice for all, especially the of the Constitution in the context of Traditional women, the elderly and the rural people in Leaders’ Courts, it is important to embrace its general. values and standards. These constitutional values serve as the foundation on which its However it is quite disheartening to find that the transformative character is built.lxxiii On the 08 founding pledge of a society based on May 1996, the people of South Africa through democratic values, social justice and their freely elected representatives adopted the fundamental rights and notions of access to 1996 Constitution with a pledge that:lxxiv justice seem to be under siege.This is one of the

We the people, of South Africa, developments which challenge and pursue a call recognize the injustice of our past; … for the transformation of Traditional Courts so We therefore, through our freely that they can assert procurement of justice in elected representatives adopt this traditional communities. The reason for the Constitution as the Supreme Law of existing position of the lack of justice and the Republic so as to - heal the ineffective administration of justice in the divisions of the past and establish a traditional leaders authority area is a consequence of several factors. society based on democratic values, social justice and fundamental human These factors included inter alia historical rights. Lay the foundation for a legacy of colonialism and apartheid which democratic and open society in which literally disempowered and “annihilated” the government is based on the will of the general expertise of traditional leaders as people and every citizen is equally dispensers of justice; the general assumption protected by law … that the institution of Traditional Courts is intrinsically regressive and lack of Traditional The transformation process of the Traditional Courts’ infrastructure such as chairs, tables, Courts and the continuing efforts to ensure computers and other equipments which are access for all to justice are intended to fill this necessary support mechanisms in the processes undertaking. This commitment should afford relating to administration of justice.lxxviii the ever-expanding rural masses of the people lxxv greater access to justice. The Constitution Conclusion further enjoins the courts to apply the law impartially and without fear, favour or It is evident from the preceding discussion that prejudice.lxxvi These important beacons have the successive governments of both the colonial chartered the way forward for the Traditional and apartheid regimes disintegrated the essence Courts. It is for this reason among many others of the African traditional justice system through that Traditional Courts should be adjusted and the statutory mechanisms and control of the transmogrified to be compatible with the Traditional Courts. constitutional imperatives.

With a long and well documented history of It seems the Traditional Courts Billlxxx will not distortions of African traditional justice system pass the constitutional muster more especially and the disintegration of the institution of the its provisions which deny women active traditional leadership and Traditional Court participation in the Traditional Courts. The systems, there is no doubt that a new dynamic parliament should therefore re-adjust the culture informed by the pre-colonial systems Traditional Courts Bill to promote gender and the Constitution should be resuscitated to equality and allow legal representation in the facilitate social justice in rural areas. Traditional Courts. However, it is hoped that the Traditional Courts will be transformed in such a The process of transformation of Traditional way that it reflects some of its essential values Courts should be informed by the need to create of its pre-colonial era which promotes an open, transparent and accountable Traditional reconciliation amongst the litigants. Court system.lxxix

Notes was beyond a point of dispute that one of the most iBekker JC “The Future of Indigenous Courts of Southern outstanding characteristics common to all traditional Africa” in Sanders (ed) AJGM Southern Africa in Need systems of pre-colonial South African societies was the of Law Reform (South Africa 1981) 185. doctrine of ubuntu. Jobodwane cited Kamenka eliciting iiNtloedibe EL “The Role of Traditional Leaders as the the similarities between the African culture and early Custodians of Culture, Tradition and Land” Unpublished Greek and Chinese cultures when he stated that men in Paper presented at a workshop on the “Culture, Religion pre-modern societies saw man as part of social organism, and Fundamental Rights” 26-27 November 1998. And see a structure of community based on common religious also S v Makwenyane and Another 1995 (3) SA 391 traditions, a hierarchy of power and network of mutual (CC), where the constitutional court described obligation that made and shaped man rather than served ubuntu/botho as the source of communal tradition. The him. Jobodwane further commented that the same court also considered it important to recognize African observation is similarly made with reference to African societies: that the individual was not autonomous or values. One such value was the value of ubuntu. possessed of rights above and prior society. The According to Mokgoro J, ubuntu translates into individual’s place in African society was fixed by a humanness, personhood and morality and envelopes the defined role or status in a greater whole, be it family, clan key values of group solidarity, compassion respect, or traditional community. See in this regard Jobodwane human dignity, reconciliation and collective unity. The ZM “Customary Courts and Human Rights: Comparative court further stated that the need for ubuntu expresses the African Perspectives” 2000 SAPR/PL 26-27. ethos of an instinctive capacity for and enjoyment of love ivRakate PK “The Status of Traditional Courts Under the towards fellow men and women, the joy of and the Final Constitution” Unpublished Paper written for the fulfillment involved in recognizing their innate humanity, Constitutional Court of South Africa, Johannesburg 1996. the reciprocity this generates in interaction within the vDlamini CRM “The Clash between Customary Law and collective community the richness of the creative Universal Human Rights” 2002 Speculum Juris 45. emotions which it engenders and the moral energies viIt is significant to note that the words “Executive which it releases both in the givers and the society which Council” is used in this context to denote a tribal council they serve. iii of a traditional community. This Tswana adage means that a person is a person viiThe word “parliament” is used in this context to refer to because of other persons and how he relates to them. a traditional community assembly. It may also be used to People in traditional communities related to each other in refer to a Pitso or Imbizo depending on the language many ways. That is why people were unlikely to act spoken by a particular group. arbitrary against one another. Being a person in pre- viiiJobodwane ZM “Customary Courts and Human Rights: colonial societies was not a matter of possessing a body Comparative African Perspectives” 2000 SAPR/PL 26- and being able to walk and talk. But it was all about the 27. good qualities that made up an ideal person. The whole idea of treating each other with respect instilled a sense of justice in the people. Hence, Jobodwane argued that it

ixBekker JC “Administration of Justice by Traditional xxivVan der Merwe SE “Accusatorial and Inquisitorial Leaders in Post-Apartheid South Africa” 2002 Speculum Procedures and Restricted and Free Systems of Evidence” Juris 245. in Sanders AJGM (ed) Southern Africa in Need of Law xBekker JC “Administration of Justice by Traditional Reform (South Africa 1981) 147. Leaders in Post-Apartheid South Africa” 2002 Speculum xxvHolomisa SP “Administration of Justice under Juris 245. Traditional Leadership” Unpublished Paper Delivered at xiThis African belief or approach is captured by the the Conference on Traditional Leadership and Local Tswana adage that says: “I am because we are” which Government 6-7 October 2007 Durban 3. literally means that a person is a person because of other xxviThe procedure and elicitation of evidence were persons. designed specifically to effect compromise and xiiHartland SE Primitive Law (London 1924) 111. reconciliation. It was in the spirit of reconciliation that the xiiiSchapera I A Handbook of Tswana Law and Custom wheel of justice revolved. (Frank Cass 1938) 84. xxviiMittlebeeler EL African Custom and Western Law: xivVan der Merwe SE “Accusatorial and Inquisitorial The Development of the Rhodesian Criminal law for Procedures and Restricted and Free Systems of Africans (London 1976) 9-10. Evidence” in Sanders AJGM (ed) Southern Africa in xxviii Bennett TW “The Equality Clause and Customary Need of Law Reform (South Africa 1981) 141. Law” 1994 SAJHR 122. xvHolomisa SP “Administration of Justice under xxixBennett TW “The Equality Clause and Customary Traditional Leadership” Unpublished Paper Delivered at Law” 1994 SAJHR 122. the Conference on Traditional Leadership and Local xxxRakate PK “The Status of Traditional courts Under the Government 6-7 October 2007 Durban 2. Final Constitution “Paper prepared and written for the xviHammond-Tooke “World View I: A System of Beliefs” constitutional Court of South Africa, Johannesburg 11. in Hammond-Tooke (ed) The Bantu Speaking People of xxxiIt should be borne in mind that the British authorities Southern Africa (1974) 318 and 362. put traditional leaders in charge of their tribal xviiVan der Merwe SE “Accusatorial and Inquisitorial administration not because they fully had confidence in Procedures and Restricted and Free Systems of Evidence” their traditional authorities but as a stopgap measure. See in Sanders AJGM (ed) Southern Africa in Need of Law in this regard Marè and Hamilton G An Appetite for Reform (South Africa 1981) 142-143. Power: Buthelezi’s Inkatha and South Africa xviiiKriege “Some Aspects of the Lovhedu Judicial (Johannesburg 1987) 18. Arrangements” Journal of Bantu Studies 1939 199. xxxiiRakate PK “The Status of Traditional Courts under the xixKriege “Some Aspects of the Lovhedu Judicial Final Constitution“Paper prepared and written for the Arrangements” Journal of Bantu Studies 1939 144. Constitutional Court of South Africa, Johannesburg 11- xxVan Niekerk BJ “Principles of the Indigenous Law of 12. Procedure and Evidence as Exhibited in Tswana Law” in xxxiiiGeneral Report of the South African Law Reform Sanders AJGM (ed) Southern Africa in Need of Law Commission Project 25: “The Repeal of the Black Reform (South Africa 1981) 136. Administration Act 38 of 1927 (March 2004) 12. xxiHolomisa SP “Administration of Justice under xxxivAn agreement or contract was written into the so- Traditional Leadership” Unpublished Paper Delivered at called South African Act of Edward Vll C 9 of 1909. This the Conference on Traditional Leadership and Local agreement marked and endorsed the continuation of the Government 6-7 October 2007 Durban 2. methods and practices of exploitation of black people by xxiiThe word “Shona” refers to the African people or whites in the former Boer republics and revealed the ethnic group which is found mainly in Zimbabwe. In white’s intention to bar black representation in parliament Zimbabwe there are two main ethnic groups namely, the permanently and to retain the existing system of Shona and the Ndebele. It is said that the present discrimination. Black leadership responded by sending a President of Zimbabwe Robert Mugabe is a Moshona multicultural delegation to London to protest against this which means a member of the Shona group. agreement but they were unsuccessful. In March 1909 xxiiiIn terms of the South African Law of Evidence which traditional leaders and black elites convened a South is deeply rooted in English Common Law, generally African Native Convention (SANC) in Bloemfontein to hearsay evidence is inadmissible. However, there are oppose the Draft Act of the Union as proposed by whites notable exceptions in which hearsay evidence may be in their own Convention. Still, their efforts to oppose the admissible. These exceptions include inter alia a situation Draft Act became a fruitless exercise. whereby the disputants consent to the use of hearsay xxxvBennett TW “The Equality Clause and Customary evidence and where one of the parties to the dispute is Law” 1994 SAJHR 62. dead and cannot adduce evidence.

xxxviBennett TW A Source Book of African Customary liiBenett TW A Source Book of African Customary Law Law for Southern Africa (Cape Town 1991) 62. for Southern Africa (Cape Town 1991) 55. xxxviiAct 38 of 1927. liiiBenett TW A Source Book of African Customary Law xxxviiiOlivier NJJ et al “Traditional Leadership and for Southern Africa (Cape Town 1991) 55-56. Institutions” in Joubert WA (ed) The Law of South livBenett TW A Source Book of African Customary Law Africa: Indigenous law (Durban 2004) 190. for Southern Africa (Cape Town 1991) 57. xxxixSee section 2 of Act 38 of 1927. lvBenett TW A Source Book of African Customary Law xlAct 38 of 1927. for Southern Africa (Cape Town 1991) 57. xliBennett TW A Source Book of African Customary Law lviGoboddo-Madigizela P A Human Being Died that for Southern Africa (Cape Town 1991) 63. Night: A Story for Forgiveness (Cape Town 2004) 144. xliiBaletseng D and Van der Walt A “The History of The ideology of apartheid was laced with different Traditional Authorities in North-West” Unpublished terminologies such as multinational development, plural Paper Delivered at a Workshop on Culture, Religion and democracy and a confederation of independent nations or even good neighbourliness. Fundamental Rights 26-27 November 1998. lvii xliiiAct 38 of 1927. This Act was repealed by the Repeal of Act 68 of 1951. Later known as the Black Authorities the Black Administration Act and Amendment of Certain Act. lviii Laws Act 28 of 2005. The Act provides inter alia for the TARG Report on “Development Management: The repeal of the provisions of the Black Administration Act Administrative and Legal Position of the Reconstruction 38 of 1927 incrementally. The Preamble of the Act states and Development Programme Vol III” (Potchefstroom inter alia that since the Constitution of the Republic of 1996) 7. lix South Africa as the supreme law of the Republic is to Letsoalo EM “Land Reform in South Africa: A Black establish a society based on democratic values, social and Perspective” (Johannesburg 1975) 79. lx economic justice, equality and fundamental rights and to The government did not hesitate to act against improve the quality of life of all citizens and free the recalcitrant appointees. For instance, in 1952 a dramatic potential of all persons by every means possible, the step was taken when Chief Luthuli was dismissed from Black Administration Act is regarded as a law that is his traditional leadership of the Umvoti Mission Reserve repugnant to the values set out in the Constitution in Zululand. The reason for the dismissal of Chief Luthuli particularly section 1 and the Bill of Rights in Chapter 2 was that he refused to give up his membership of the thereof, is reminiscent of past divisions and ANC. The extent of government control over traditional discrimination and ought to be repealed as a matter of the leaders could be seen in the disposition of 34 traditional utmost urgency. leaders and headmen during the years 1955 and 1958. The xlivSee generally sections 12 and 20 of the Black Black Authorities Act also made traditional leaders paid Administration Act regarding the civil and criminal employees of the apartheid regime. As a result, those who jurisdiction of the Traditional Courts. earned salaries owed allegiance to the regime and no xlvZibi M “Reforming the Role of Traditional Leadership” more to their people. lxi Unpublished Paper Presented at a Conference on Lodge T Black Politics in South Africa since 1945 Traditional Leadership and Local Government 6-7 (Johannesburg 1983) 261. lxii October 2004 Durban 12. Act 45 of 1988. xlviNdima DD “The Role of Customary Law in the General Law of South Africa” 2002 Speculum Juris 234. xlviiIt is important to note that the traditional leaders had a better know how of customary law than the white Magistrates. Therefore the Traditional leaders were in a better position to administer the African traditional justice system than the white Magistrates. xlviiiBekker CJ “The Future of Indigenous Courts in Southern Africa” in Sanders AJCM (ed) Southern African in Need of Law Reform(South Africa 1981 ) 186. xlixDlamini CRM “The Clash between Customary Law and Universal Human Rights” 2002 Speculum Juris 32. lDlamini CRM “The Clash between Customary Law and Universal Human Rights” 2002 Speculum Juris 33. liBennett TW Human Rights and African Customary Law (Cape Town 1995) 59.

lxiiiSection 11 (1) conferred a discretion to the lxxiiIn terms of section 35 of the Black Administration Act Commissioners’ Court established in terms of section 10 38 of 1927, black is defined as any person who is a of the Black Administration Act to apply customary law: member of any aboriginal race or tribe of Africa. Not withstanding the provisions of any other law, it shall lxxiiiBray E “The Constitutional Concept of Co-operative be in the discretion of the Commissioners’ Court in all Government and its Application in Education” 2004 suits or proceedings between blacks involving questions TSAR 705. of customs followed by blacks to decide such questions lxxivSee the preamble of the Constitution of the Republic according to the black law applying to such customs of South Africa, 1996. except in so far as it shall have been repealed or modified: lxxv provided that such black shall not be opposed to the See section 34 of the Constitution of the Republic of South Africa, 1996. principles of public policy or natural justice: provided lxxvi further that it shall not be lawful for any court to declare See section 165 (2) of the Constitution of the Republic of South Africa, 1996. that the custom of lobola or bogadi or any similar custom lxxvii is repugnant to such principles. In cases where the parties See Chapter 8 of the 1996 Constitution and in belonged to different groups, section 11 (2) provided as particular section 165 which declares inter alia that the follows: In any suit or proceedings between blacks who judicial authority of the Republic is vested in the do not belong to the same tribe, the court shall not in the Constitution and they must apply law impartially and without fear, favour or prejudice. absence of any agreement between them with regard to lxxviii the particular system of black law other than that which is The above factors which impair the system of in operation at the place where the defendant or the traditional justice system in South Africa include also the respondent resides or carries on business or is employed stigmatization of the Traditional Courts and ignorance or if two or more different systems are in operation at that about the contribution they can make in the general place, not being within a tribal area, the court shall not administration of justice. lxxixSee also De Lange JH “Seminar in Celebration of the apply any such system unless it is the law of the tribe (if th any) to which the defendant or respondent belongs. 10 Anniversary of the South African Human Rights lxivBennett TW Human Rights and African Customary Commission, Johannesburg” www.doj.gov.za 7 September 2006. Law (Cape Town 1995) 69. lxxx lxvBennett TW Human Rights and African Customary The Traditional Courts Bill was introduced in the Law (Cape Town 1995) 71. National Council of Provinces (proposed section 76), on lxviIt is significant to note that the 1996 Constitution of the request of the Minister of Justice and Constitutional Republic of South Africa was adopted on the 8th of May Development. The explanatory summary of Bill published 1996. Prior to this adoption, there was an interim in Government Gazette No. 34850 of 13 December 2011 Constitution herein referred to as the Constitution of the and the Bill was originally introduced in National Republic of South Africa, 1993. Assembly as Traditional Courts Bill (B 15—2008) and lxviiSee Chapter 2 of the Constitution of the Republic of withdrawn on 2 June 2011. South Africa, 1996. lxviiiSee section 35 (3) (h) of the Constitution of the Republic of South Africa, 1996. lxix1994 (4) SA 126 (C). Similarly in S v Petrus (1985) LRC 699, the Botswana Court of Appeal forbade mandatory corporal punishment by installments. In Namibia the Namibian Court in Ex Parte A-G of Namibia: In re Corporal Punishment by Organ of State 1991 (3) SA 76 (NMS) banned corporal punishment generally. lxxSee section 9 of the Constitution of the Republic of South Africa, 1996. lxxiBennett TW Human Rights and African Customary Law (Cape Town 1995) 79.