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3.1 All courts in South Africa are competent to apply customary law. Under s 12(1) of the Black Administration Act, however, courts of traditional authorities only have jurisdiction `to hear and determine civil claims arising out of Black law and custom' brought before them `by Blacks against Blacks resident within [their] area of jurisdiction'. Thus, in civil suits, these courts have no competence to apply common law. Under s 20(1)(a) of the Act, on the other hand, traditional leaders may try certain offences at either common or customary law,[20] provided the accused was Black or the offence was suffered by a Black.
3.2 Under s 1(1) of the Law of Evidence Amendment Act[21] and s 211(3) of the Constitution, all courts in South Africa are competent to apply customary law. Section 12(1) of the Black Administration Act,[22] however, continues a restriction that was imposed on courts of traditional authorities in colonial times: in civil suits they could not apply common law.[23] In criminal cases, on the other hand, traditional courts are competent to apply both common and customary law.
3.3 Three questions arise here: first, whether traditional courts should be entitled to apply common law in civil cases; secondly, whether traditional leaders should continue to apply customary criminal law; and, thirdly, whether customary criminal law should be given wider recognition in other courts.
3.4 The Zion Christian Church said that it was important to make an honest attempt to revive traditional courts in their true sense, as courts of first instance for litigants who valued their laws and culture.
3.5 Professor A J Kerr (Rhodes University) felt that, if traditional courts were to be brought within the general judicial structure, they would have to become courts of record and their presiding officers would have to undergo extensive training in South African common law.
3.6 The Gender Research Project (CALS) said that the jurisdiction of traditional authorities should not to be extended to permit adjudication of all civil-law claims until the complicated issue of the integration of chiefs' and magistrates' courts had been resolved.[24] Resolution of disputes under customary law before a traditional authority ought to be understood as a form of informal, inexpensive and accessible dispute resolution, which parties choose precisely because their transaction was customary and because they could take advantage of the traditional authorities' expertise.
3.7 The Black Administration Act maintains the colonial tradition of judicial segregation by restricting the competence of certain courts to apply either customary or common law, but not both. Courts of traditional rulers (and the former commissioners' courts) were available for African litigants, whereas magistrates' courts and the higher courts (although not barred to Africans) were mainly for whites.
3.8 While the jurisdictional competence of traditional rulers is an issue beyond the terms of reference for this Report, it overlaps with the inquiry into the circumstances in which customary law should be applied. Hence, a few words on the topic are appropriate, in particular the racist manner in which both jurisdiction and application of customary law are conceived.
3.9 The jurisdiction of traditional courts should be revised in accordance with the constitutional prohibition on racial discrimination. Thus civil claims should not be restricted to `Blacks against Blacks',[25] and criminal jurisdiction should not depend on the accused or injured party being black.
3.10 If race is removed as a ground of jurisdiction, then an obvious way of defining the competence of traditional courts in civil matters would be to refer to the litigants' adherence to a particular system of law. Section 12(1) of the Black Administration Act already does this by limiting the civil (and partly the criminal) jurisdiction of traditional courts to matters involving customary law. If a case involves the common law, the parties must sue in a magistrate's court. (Conversely, if customary law is involved, they would have a choice of forum, because all courts in South Africa are entitled to apply that law.)
3.11 Once jurisdiction depends on the applicability of a particular system of personal law rather than race, the existing court structure can be reconceived to serve a different need: the parties' cultural expectations. This approach would suggest that the civil jurisdiction of traditional rulers should continue to be restricted to customary law.
3.12 Three objections arise. The first is the undesirability of compelling rural litigants to bring common-law claims in what are often inaccessible urban tribunals (normally a magistrate's court or a small claims court), thereby entailing greater expense and loss time. The second is the difficulty of knowing whether a claim arises out of common or customary law. The third is a possible charge of indirect racial discrimination.
3.13 As far as the first objection is concerned, points made by respondents to the Issue Paper were taken. If traditional courts were given the power to apply common law, their presiding officers would need to undergo extensive training in South African common law. Moreover, traditional courts ought to be maintained as cheap, informal and accessible tribunals, which parties can approach because their dispute is one rooted in customary law.
3.14 The second objection underlines the difficulties inherent in deciding what law to apply to a suit. Traditional authorities are ill-equipped to make these decisions: they are not skilled in the intricacies of the conflict of laws and they cannot be relied upon to draw the fine distinctions that higher courts might make.[26] (As a matter of practice, traditional rulers probably pay little attention to the legal provenance of the actions brought before them.) Even decisions of the Black Appeal Court, made in the context of s 12(1) of the Black Administration Act, were sometimes quite arbitrary.[27] Extending the traditional courts' civil jurisdiction to cover matters of common law (in line with their criminal jurisdiction), however, is too drastic an answer to what is in effect a technicality. It must perhaps be acknowledged that there is no straightforward solution to the choice of law problems posed by s 12(1).
3.15 The third objection of indirect discrimination can be met by weighing the right to equal treatment against the right to culture. People are surely entitled to have their disputes adjudicated in a forum that will apply laws and procedures with which they are familiar. Courts abroad have had no hesitation in supporting culturally exclusive institutions against charges of discrimination.[28]
3.16 While s 12(1) of the Black Administration Act withholds jurisdiction from traditional courts in civil matters involving common law, s 20(1)(a) of the Act gives them power to apply customary or common law in criminal matters.[29] Thus traditional rulers have jurisdiction over all minor crimes, whatever their legal origin. What appears to be an anomaly was perhaps a sensible decision, since in customary law careful distinctions are not drawn between crime and delict, and, even where they are, the distinctions will not always be the same as in common law.[30]
3.17 Should traditional courts now lose their competence to apply customary criminal law? Maintenance of the status quo would be the first argument against this proposition. Any attempt to change their powers (and thereby circumscribe their jurisdiction) is unlikely to meet with compliance,[31] since customary law does not distinguish precisely between civil and criminal matters.[32] Because no particular objections have been raised to traditional courts applying both common and customary law in criminal cases, matters can perhaps be left as they are.
3.18 It is a different matter to require other courts to apply the customary law of crime. Although it has always been assumed, since colonial times, that the common law should provide an overall framework for government and control of the population, this assumption has never been seriously considered in South Africa. To broaden the scope of customary criminal law now would pose a major question of policy - and public comment would have been appreciated - but none of the respondents to the Discussion Paper chose to mention the issue. In the circumstances, there seems to be good reason for not changing the existing position.
3.19 Criminal law, like other branches of public law, tends to be identified with state sovereignty. Hence, it will be readily accepted that everyone in the country should be subject to the same system of public law. Moreover, because the commission of crimes affects the public weal, a strong argument can be made for not allowing offenders to plead innocence on the ground that their acts were condoned by a particular cultural tradition. When laws involve not individual or narrow community interests, but wider interests of the society as a whole, the right to equal treatment will outweigh any freedom to pursue a culture of choice.[33]
3.20 Not only should race be irrelevant as a criterion for applying customary law but it should also be irrelevant for determining the jurisdiction of traditional courts. Hence, s 12(1) of the Black Administration Act must be amended to delete any reference to `Blacks'. For the same reasons, it would seem advisable to amend s 20 of the Act. For purposes of trying criminal cases, therefore, residence of an offender or commission of an offence within a court's area of jurisdiction would be a more acceptable ground of jurisdiction (for the sovereignty implicit in traditional rule would entail the power to sanction wrongdoing).
3.21 The current limitation on the traditional courts' powers of jurisdiction to apply only customary law in civil matters should be retained. This restriction helps to preserve the special character of the courts as informal tribunals dispensing justice according to the precepts of customary law.
3.22 No attempt should be made to extend application of customary criminal law to other courts. Criminal justice is an area where the country needs a unified system of law. On the other hand, because no objections have been raised to the competence of traditional courts to apply both common and customary law in criminal suits, their jurisdiction in this regard should be preserved.
[20] Other than those specified in the Third Schedule to the Act.
[21] 45 of 1988.
[22] 38 of 1927.
[23] In addition, a proviso to s 12(1) specifically excludes their jurisdiction over matters of nullity and divorce arising out of civil or Christian marriages.
[24] Linked to this submission, was the Gender Research Project's concern that the traditional authorities' criminal jurisdiction should not be extended without first paying attention to the impact of constitutional guarantees on procedural justice in informal tribunals. The questions of extending criminal jurisdiction and the procedures to be adopted by the courts, however, are issues falling outside the scope of this Report.
[25] `Black' is defined in s 35 of the Black Administration Act to mean any person `who is a member of any aboriginal race or tribe of Africa'. Given South Africa's heterogeneous population, however, application of this definition has been far from easy. See Bennett Sourcebook of African Customary Law 66-7.
[26] Myandu v Dludla 1978 AC 64 (NE), for instance, held that a claim for bridewealth based on a civil marriage could be heard in a traditional court, because the issue was governed by customary law. Yeni v Jaca 1953 NAC 31 (NE) and Ngwenya v Mavana 1975 BAC 75 (S), on the other hand, held that traditional courts had no jurisdiction over claims for damages for adultery, because the common law was applicable.
[27] In a relatively simple suit to recover damages for defamation, for example, Mkize 1948 NAC 39 (NE) held that, because the words complained of would not give rise to an action in customary law, a traditional court had no jurisdiction. (See too Ntshingili & others v Mncube 1975 BAC 100 (NE).) It was arbitrarily assumed that common law had to be applied to ensure that the plaintiff obtained a remedy, although there might have been equal justification for applying customary law and denying the remedy. In another case involving an action for damages for rape, Nkosi v Mdhladhla 1945 NAC (N&T) 46, the Appeal Court held that, because customary law permitted only a criminal action in the circumstances, a traditional court lacked jurisdiction. Conversely, it was held that, if both systems of law offered remedies, the jurisdiction of traditional courts was confirmed. See Cebekulu v Shandu 1952 NAC 196 (NE), Mkize v Mnguni 1952 NAC 242 (NE) and Mazibuko v Nyathi 1953 NAC 118 (NE).
[28] See the Australian decision in Gerhardy v Brown (1985) 159 CLR 70 and the United States decisions in Morton v Mancari 417 US 535 (1974) and US v Antelope 430 US 641 (1977). See further Ross-Spencer & another NO v Master of the High Court 1971 Swaziland LR 59 (HC) at 65.
[29] See Labuschagne (1974) 7 De Jure 38 and Olivier et al Privaatreg van die Suid-Afrikaanse Bantoetaalsprekendes 585-7.
[30] Holleman Chief, Council and Commissioner 92 and the Editorial in (1967) 7 Rhod LJ 1ff.
[31] We have no evidence, for example, of whether traditional authorities scrupulously comply with the limitations imposed on their jurisdiction.
[32] For example, as a prelude to a customary marriage, it might happen that the bride-to-be is abducted by her suitor and carried off to his homestead. See R v Swartbooi 1916 EDL 170. Viewed from the perspective of the common law, this action could fall into the category of crime (kidnapping), whereas, from a customary-law perspective, it could be a prelude to marriage negotiations. The courts seem to have solved the problem of classification intuitively by considering the total cultural environment of the case.
[33] Hence, several early cases held that violations of the criminal law could not be justified on the basis that the offending act was a customary practice. See, for instance, R v Swartbooi 1916 EDL 170, R v Mane 1948 (1) SA 196 (E) and S v Sita 1954 (4) SA 20 (E) at 22. The constitutional implications of this proposition were fully explored in a Canadian decision, Thomas v Norris [1992] 2 CNLR 139 (BCSC), which was further discussed by Isaac (1992) 21 Manitoba LJ 618.
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