Time to rethink Traditional Courts Bill

SOUTH Africa’s Traditional Courts Bill, aimed at regulating traditional courts, has been put on hold amid concerns over its legality.

Traditional courts operate in South Africa’s rural areas under traditional leaders. Traditional leadership is recognised by the Constitution in accordance with customary law.

The courts apply unwritten versions of customary law – the practices of an indigenous community – and are recognised as courts in the South African legal system. Their proximity to communities, informal nature and accessibility make them the first port of justice for millions of citizens.

The colonial-era Black Administration Act of 1927 regulates traditional courts, but its provisions are largely outdated and ignored. In theory the courts have limited jurisdiction and powers, but these are often exceeded in practice. They hear a range of disputes surrounding marriage and inheritance as well as matters of assault and rape. Courts impose sanctions such as fines, corporal punishment and banishment.

The national assembly has paused on passing the Traditional Courts Bill to obtain legal opinion on the constitutionality of failing to provide people with a right to opt out of proceedings in traditional courts. The bill, if passed into law as it stands, will compel people who are summoned to appear before a traditional court to do so – even where they dispute the legitimacy of the court and the traditional leader.

A previous version of the bill allowed people to refuse to participate without giving any reasons.

Traditional courts are notoriously dominated by men, with power imbalances often favouring traditional leaders. The Traditional Courts Bill further excludes legal representation – a constitutional right in criminal matters. While the courts are not technically meant to have criminal jurisdiction, this is blurred as the courts may investigate a range of criminal offences.

The potential for abuse is increased by the fact that customary law governs the rules of evidence and procedure. Yet, there is no single, defined system of customary law. It differs between indigenous groups and from area to area. Furthermore, it is unwritten. It is, therefore, impossible to determine from the outset whether individual fair trial rights are adequately protected.

Forcing citizens in rural areas – generally the poorest and most vulnerable in society - into traditional courts will subject them to a different justice system from their urban counterparts.

Some of the harshness of locking people into traditional courts is ameliorated by the bill not criminalising the failure to appear when summoned, nor allowing for an order to be granted in a person’s absence.

People may also appeal decisions of traditional courts to the common law courts after the customary procedures are exhausted. While this gives people some leeway, appeals are a long and protracted processes, and many people may not appeal decisions fearful of the repercussions from traditional leaders. A popular justification for the omission of the right to opt out is the need to treat traditional courts as equal to common law courts. People cannot opt out of the common law courts; why should they be allowed to do so in traditional courts?

The answer, as mentioned before, is that attendance at traditional courts has always been voluntary. Such voluntary attendance gave the courts authority and legitimacy – not any statute. There is no reason for the bill to mimic colonial and apartheid legislation which conferred on traditional leaders territorial jurisdiction.