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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 © American Research Institute for Policy Development 51 www.aripd.org/jgpc Journal of Global Peace and Conflict 1(1); June 2013 pp.
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