CHAPTER 2

ESTABLISHMENT AND NATURE OF CUSTOMARY COURTS

2.1. Traditional court or customary court?

During consultations on the Discussion Paper, the question arose as to whether these courts should be called traditional courts, chiefs’ courts or customary courts. The predominant view from the responses^[5] to the Discussion Paper was that they should be called customary courts as their application of African customary law in the majority of cases they handle, is a distinguishing factor. There was also a suggestion from one of the respondents^[6] that these courts should be called ‘indigenous courts’ partly because the law applied by these courts is largely indigenous to South Africa. Another suggestion was that they should be called customary law courts rather than just customary courts. In the workshops in the provinces, different terms were suggested, for instance, African traditional courts, indigenous community courts, kgotla etc. In the draft Bill the term ‘customary courts’ is adopted as the most popular. Moreover, ‘customary law’ and ‘customary courts’ are the terms most widely used in the rest of Africa.

2.2 Should the customary court be a court of law?

Another issue that is raised is whether these courts should be recognised as courts of law or only as arbitration tribunals. Most people agree that they are and should be courts of law. Professor Mqeke prefers the phrase court of law because one is summoned before the chief’s or headman’s court and has to appear. Appearance is not voluntary as in the case of mediation^[7]. He also points out that existing traditional leaders’ courts are recognised in the Constitution in item 16 of schedule 6^[8]. A number of other respondents also agree that customary courts should be recognised as courts of law and accorded the necessary powers and dignity^[9]. Finality and enforceability of decisions of these courts are important if they are to be respected and to lessen the workload on the magistrate’s courts. At the workshops in the provinces there was unanimity that customary courts must be courts of law. The draft Bill endorses that position in clause 2(2).

2.3. Levels of Courts

In terms of the Black Administration Act 38 of 1927, which still applies in most of South Africa, there is no prescribed hierarchy of customary courts. Sections 12 and 20 empower the Minister to confer civil and criminal jurisdiction on chiefs, headmen or chiefs’ deputies. There is no provision for appeals from the headman’s court to a chief’s court^[10]. Nevertheless, in many traditional communities the practice is that claims or complaints start at the level of the family council. If a matter is not resolved at that level, it is taken to the headman who, together with his advisors, attempts to dispose of the matter. If it is still not resolved, the matter is taken on appeal to the chief^[11]. It is from the chief’s court that the case is normally appealed to the Magistrate’s court.

It is clear that there is variation from region to region as to the dispute settlement processes particularly below the “chief’s court proper”. The system appears to be fluid but dynamic and there appears to be a need to retain the value in this dynamism but to tidy it up in the form of a formalisation of the system. Thus, clause 3 of the draft Bill provides for different levels of customary courts as recognised in customary law. Whereas the ‘chief’s court’ should remain the centrepiece of the customary system, recognition should be made of prior dispute resolution mechanisms in the form of a court but limited to one level. The number of customary courts above the ‘chief’s court’ should depend on what is decided about the appeals hierarchy.

Thus, it is proposed that headmen’s courts^[12] be recognised as a specific level of court at the bottom of the hierarchy of customary courts and given the same jurisdiction as chiefs’ courts. Chiefs’ courts would then operate as courts of first instance, as well as courts of appeal from the decisions of headmen’s courts.

At the same time, the draft Bill provides that the Minister may establish customary courts of appeal. It is intended that such appeal courts should be on a regional or provincial level serving a number of chiefs’ courts. In his response to the Discussion Paper, Professor Mqeke makes the suggestion that there should be a “National Traditional Court of Appeal”. This should indeed be seriously considered. However, for the moment it may be unnecessary and expensive for such appeals could instead go to the High Court in civil matters and the magistrates’ courts in criminal matters.

There are many headmen who have not been granted jurisdiction to hold courts in their areas under existing legislation. These headmen nevertheless hold what may be termed ‘headman’s fora or tribunals’. These tribunals resolve disputes and if they are unable to resolve them they refer the disputants to the chief’s court with the necessary jurisdiction^[13]. It is proposed to recognise these headmen’s fora as formal courts at the first or primary level. However, this has financial implications as clerks would have to be appointed for these courts.

2.4 Constitution of Customary Courts

Under the Black Administration Act, there is no provision regarding the composition of the chiefs’ or customary courts. The Act merely provides for the conferment of jurisdiction on a chief, headman or chief’s deputy to hear civil matters and try certain criminal matters^[14]. However, the Rules made under the Act provide that procedure in civil matters in chiefs’ and headmen’s courts “shall be in accordance with recognised customs and laws of the tribe...”^[15]. As far as criminal matters are concerned, section 20(2) provides that the procedure at the trial by a chief or headman or chief’s deputy shall, save as the Minister may prescribe otherwise by regulation, be in accordance with customary law. Under customary law, the court formally consists of the chief and his councillors or the headman and his advisors. However, in most cases the chief will not normally preside over the proceedings. A trusted councillor will be appointed to preside. The chief is briefed about the proceedings and will not normally differ from the general view of his councillors. The councillors are appointed by the chief or headman from members of the community.

In the Discussion Paper, it is suggested that the chief or headman of the area or his/her delegate should preside over the customary court sitting with councillors. Two options of appointing councillors were suggested (Recommendations 4a and 4b of the Discussion Paper). The first option is that the people of the area of jurisdiction of that chief or headman should popularly elect councillors at a general meeting called for the purpose. The second option is that the chief or headman concerned should appoint the councillors from a panel of persons elected by the relevant community. There is of course a third option: that the chief or headman should appoint the councillors in his/her discretion from prominent persons in the community, as is currently the case.

In addition, the point is made in the Discussion Paper that the customary courts should include women as members in accordance with the values of equality and non-discrimination in the Constitution^[16]. Further, it is observed that some traditional leaders support the idea of democratically elected councillors^[17]. Whereas the proposal of elected councillors is opposed by Professors Koyana and Bekker as being contrary to the constitution of traditional authorities^[18], it is strongly supported by the joint submission of CALS, CGE and NLC^[19]. On the issue of councillors, the joint submission concludes:

“The election of councillors proved to be a popular recommendation in Limpopo, Eastern Cape and KwaZulu Natal. Many respondents indicated that if traditional courts were to serve as dispute resolution structures or agencies for law enforcement...they need to be representative of the community. The election of councillors would, therefore, ensure greater openness and accountability.”^[20]

The joint submission goes further and recommends that chiefs or headmen should not preside over courts and that not only should the councillors be popularly elected but a quota system should be legislated to ensure effective participation of women in customary courts.

As a result of the different views on the matter of composition, the draft Bill is not decisive on the issue. Clause 4 provides that the composition of a customary court should be according to customary law but adds a proviso intended to ensure women's participation as members of the court. There are three alternatives to this proviso. One alternative requires not less than half of the members to be women. Another alternative requires that “in constituting the court regard shall be had to section 9(3) of the Constitution and section 8 of the Promotion of Equality and Prevention of Unfair Discrimination Act^[21] as to the need for the representation of both men and women in public institutions. Yet another version of the clause states that “in order to comply with section 9(3) of the Constitution, a customary court must include both men and women in its composition”. The first option would satisfy the concerns of the women’s lobby as expressed in the joint submission by CALS, CGE and NLC^[22]. On the other hand it would not satisfy the traditional leaders and other traditionalists. Koyana and Bekker suggest that:

“The participation of women should not be peremptory. Our research shows that more and more women participate in traditional work. The numbers have grown gradually over the years and will continue to grow in an orderly manner. We think that a more substantial role for women should be left to the traditional leaders themselves. If women are imposed upon the system, it will create undesirable distortions and possibly confrontation and conflict.”

It may also be observed that in Limpopo, women stated that they are not prohibited from attending and participating in the court proceedings but they do not attend because they believe that it is a man’s job and it would be contrary to culture for them to attend^[23]. Thus, the socialisation of women as to their role in society, in the traditional context, is an impediment to their participation in public life and institutions.

During the workshops in the provinces, many traditional leaders opposed the idea of quotas for women participation in the work of the customary courts. In one case, councillors of the Ramokgopa Traditional Authority submitted a document after the workshop disagreeing with all the recommendations on the constitution of customary courts. Their objections were based on the ground that according to the customs of the Batlokwa ba Ramokgopa, councillors are the brothers and uncles of the reigning kgoshi or chief. They are not elected. They hear cases together with members of the public. “All persons present (even strangers) take part in the discussion. When the case is fully debated it is referred to kgoshi for the verdict. Kgoshi gives verdict basing his judgment on the deliberations and argument by kgoro.... The councillors did

not see any problem with this system.”

The practice also applies in those areas ruled by women in Limpopo. CALS, CGE and NLC consultations revealed that the woman traditional leader was not a member of the court but received reports from the “uncles” who were the councillors and who carried out the judicial functions^[24].

A policy decision needs to be taken on the question of election of councillors and on how to ensure meaningful representation of women.

^[5] PB Monareng (Regional Court President: North West), DM Mamashela (University of Natal Pietermaritzburg), HM De Vetta (Psychologist, Rosslyn), Advocate W Olivier SC (Bloemfontein) and participants at the workshops.

^[6] HT Madonsela of HT Madonsela & Co (Attorneys, Newcastle, KwaZulu Natal) l.

^[7] RB Mqeke “Customary Courts; courts or tribunals?” Paper presented at the UNISA workshop on Discussion Paper 82 at the South African Law Commission conference centre on 9 September 1999.

^[8] Item 16(1) states: “Every court, including courts of traditional leaders existing when the new Constitution took effect, continues to function and to exercise jurisdiction in terms of the legislation applicable ... “.

^[9] For instance, Professors Koyana and Bekker and Adv W Olivier SC.

^[10] Section 12 (4) of Act 38 of 1927 provides for appeals from judgments of a chief, headman or chief’s deputy in a civil matter, while section 20(6) provides for appeals from a chief, headmen or chief’s deputy in a criminal matter. In each case the appeal goes to the magistrate’s court.

^[11] Joint Submission by CALS, CGE and NLC.

^[12] Ibid

^[13] Joint submission by CALS, CGE and NLC. FA De Villiers “Customary Courts: Composition and Hierarchy” paper presented at UNISA workshop on customary courts 9 September 1999.

^[14] Section 12 relates to civil jurisdiction while section 20 relates to criminal jurisdiction.

^[15] Rule 1 of the Chiefs’ and Headmen’s Civil Courts Rules R2082 of 29 December 1967 (as amended).

^[16] This suggestion was based on the understanding that customary courts invariably consist of men. In the responses it has been pointed out that in a number of courts in the former Transkei and Ciskei women are represented.

^[17] Contralesa (KZN) in written submission to the Constitutional Assembly.

^[18] Submission dated 11 June 1999.

^[19] The submission is based on research conducted by the researchers of the three institutions in Limpopo, Eastern Cape, North West and KwaZulu-Natal.

^[20] 13 and 17 of the Joint Submission December 1999.

^[21] Act 4 of 2001.

^[22] This option of elected councillors and a quota for women is supported by a woman magistrate at Mount Frere. It was also recommended by 150 women in KwaZulu Natal at a meeting organised by the South African Law Commission on 19 and 20 November 1999.

^[23] At a consultative meeting between representatives of CALS, CGE and the Law Commission and some thirty women at the royal kraal of Queen Modjadji in Limpopo.

^[24] Joint Submission of CALS, CGE and NLC at 12. However, it is pointed out that in Ga-Modjadji, the Queen

has the power to overrule the judgment that has been given by the councillors.

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