CHAPTER 3

JURISDICTION

3.1. Civil Jurisdiction

A customary court should be competent to hear most cases arising out of customary law. However, the question was raised in the Discussion Paper whether they should hear matters relating to dissolution of marriage, maintenance, custody and guardianship of minor children. Due to the patriarchal nature of African society and the apparent bias of customary law and practice in favour of males, it was suggested that these matters be excluded from the jurisdiction of customary courts and rather be handled by family courts. Under the Black Administration Act and some former homeland laws, chiefs’ courts were not allowed to hear cases of nullity, divorce or separation arising out of a civil marriage. With the recognition of customary marriages, it is suggested that the prohibition be extended to customary marriages. This suggestion takes into account the values of equality and non-sexism in the Constitution and the principle of the “best interests of the child”^[25].

According to clause 8 (1), the draft Bill proposes to exclude from the jurisdiction of customary courts the following matters: (1) determination of the validity, effect or interpretation of a will, (ii) dissolution of any marriage (iii) determination of the custody or guardianship of minors and (iv) determination of liability for maintenance or. These are controversial issues on which there are conflicting views.

Currently, chiefs’ courts enjoy jurisdiction in these matters except issues relating to civil marriages^[26]. It is therefore perceived as a diminution of the powers and functions of traditional leaders and their courts to deny them jurisdiction on these matters. Traditional leaders are not happy with these exclusions. Some respondents particularly opposed the exclusion of custody and guardianship of children from the jurisdiction of customary courts. They argue that these are areas which have traditionally been handled by traditional courts. On the other hand, women have strongly argued that customary courts should not have jurisdiction over matters relating to status, maintenance or land on the basis that these courts are biased against women. This was for instance the view of women in KwaZulu Natal interviewed by representatives of the Law Commission, CALS, CGE and NLC^[27]. The joint submission from CALS, CGE and NLC argues that besides their patriarchal character, customary courts lack the capacity to deal with maintenance and that in practice many women are already taking their cases to magistrates’ courts instead of the chiefs’ courts. It was observed in the interviews that women prefer to go to magistrates courts rather than chief’s courts because the former have clear legal processes to deal with defaulters while the latter have none and do not have the capacity to enforce payments^[28].

Professor Mqeke is one of the few people who addressed these issues in his submissions. He agrees that cases of maintenance and interpretation of wills should be handled by the magistrates’ courts. He, however, further submits that issues of custody and guardianship of children should continue to be handled by customary courts. He also suggests that these courts should be allowed to determine matters relating to customary marriages^[29]. The case for excluding family related matters from the jurisdiction of customary courts is sufficiently strong, despite the opposition of traditional leaders, to justify a provision in the draft Bill excluding them. These issues should, more appropriately be handled by family courts, which after all, are dedicated to such matters and where the issue of the “best interests of the child” will be the primary consideration, in conformity with the Constitution^[30].

With regard to land disputes, the joint submission of CALS, CGE and NLC points out that rural women are unhappy about the administration of land by traditional leaders claiming that women are traditionally disadvantaged by the customary law of land holding and its administration by traditional leaders. The Department of Land Affairs is in the process of drafting a law that will govern rural land tenure, allocation of land and resolution of disputes. It is therefore felt to be proper to leave land out of the draft Bill.

3.2. Criminal Jurisdiction

Currently, chiefs’ courts have jurisdiction over offences at customary law, common law and statutory offences of a less serious nature. The more serious offences are excluded in terms of schedule 3 to the Black Administration Act and similar provisions in the relevant statutes of the former homelands and self-governing territories^[31]. It is proposed to maintain that position. The schedule to the draft bill is the same as the old schedule 3 of the Black Administration Act, with a few changes. A significant addition to the Schedule is the exclusion of offences connected with domestic violence in terms of the Domestic Violence Act from the jurisdiction of customary courts. These offences include rape, wife beating, child abuse etc. Outdated offences such as crimen laesae majestatis and sodomy have been omitted from the list. The omission of ‘offences relating to stock theft’ from the excluded offences implies that customary courts can try offences relating to stock theft. However, this jurisdiction should be subject to the monetary limitation which the Minister may impose in terms of clause 8 (1) (b) of the draft Bill. Thus, a customary court should be able to try a case of theft of a sheep but not a herd of cattle.

Jurisdiction of traditional courts under current law is only over Blacks or Africans in areas where the Black Administration Act applies and in a number of areas in provinces incorporating the former homelands. It is proposed to change the basis of jurisdiction over persons to reflect the values of the new non-racial South Africa. Under the draft Bill, a customary court has jurisdiction to hear any criminal matter in which the accused is charged with having committed an offence wholly or partly within the court’s area of jurisdiction. This clause makes no reference to race or ethnic origin.

The interesting questions that arise with regard to criminal jurisdiction are whether customary courts should have criminal jurisdiction at all, what kind of offences they should try, what punishment may be imposed and whether the accused may demand a transfer to a magistrate’s court. Some of these issues are addressed later on in this Report.

As far as criminal jurisdiction is concerned, a comparative study of some countries in Southern Africa shows a variation. In Zimbabwe, courts of traditional leaders (or local courts) have no jurisdiction in criminal matters^[32]. In Namibia, a traditional authority is authorised to “hear and settle disputes between members of the traditional community in accordance with the customary law of that community”^[33]. This seems to refer largely to civil matters but may include criminal matters known to customary law. In Botswana^[34] and Swaziland^[35], on the other hand, courts of traditional leaders have considerable criminal jurisdiction. At the workshops, traditional leaders were in favour of extensive criminal jurisdiction. However, other submissions emphasised that customary courts should continue to try only minor or petty offences while the more serious offences are tried by magistrates courts and High Courts.

3.3 Law to be applied

(a) Law applicable in civil matters

The law to be applied in civil cases is customary law. This has always been the case from pre-colonial times. Those customary courts currently operating under the Black Administration Act are obliged to decide cases in accordance with customary law in terms of section 12. This section empowers the Minister to authorise any Black chief or headman recognised or appointed under section two “to hear and determine civil claims arising out of Black Law and Custom brought before him by Blacks against Blacks resident within such chiefs area of jurisdiction” [emphasis added]. The Bophuthatswana Traditional Authorities Act 23 of 1978 which was inherited^[36] and still applies in the North West province has a similar provision.

The application of customary law should no longer be subject to the repugnancy clause. Under section (1) of the Law of Evidence Amendment Act^[37], customary law may not be applied if it is contrary to natural justice or public policy. The Bophuthatswana Act quoted above contains a similar provision. Repugnancy clauses all over Africa were a colonial creation to prevent enforcement of customary laws or practices if they offended western moral standards.”^[38] In a constitutional democracy, there might be instances where customary law is not consonant with the values of the Constitution. This may be the case for instance in matters relating to the subordination of women and discriminatory practices which may fall foul of section 9 of the Constitution. It is for this reason that while recognising customary law, it is required that its application should be subject to the Constitution^[39]. In keeping with this constitutional provision, clause 7(2) of the draft Bill provides that “customary courts must give effect to Chapter 2 of the Constitution, in particular section 9 and section 39(2).” Section 9 proscribes unfair discrimination including discrimination based on sex or gender. Section 39 (2) of the Constitution provides that “when interpreting the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.” These provisions are an attempt to ensure that customary law, which is still largely patriarchal, is developed to conform to the values and aspirations of the new South Africa. At the same time it must be noted that whereas the repugnancy clause was narrowly focussed on African customary law and hence objectionable in a postcolonial setting, the language of the Constitution is broader, requiring everything to conform to the Constitution. The old repugnancy clause has been overtaken by time and its scrapping should be welcomed by all.

(b) Law applicable in criminal matters

Customary courts have limited criminal jurisdiction relating to common law offences, customary law offences as well as statutory offences over which specific jurisdiction has been granted to them. The law applicable therefore is customary law with regard to customary law offences, common law and provisions of legislation with respect to statutory offences. According to the draft Bill, customary courts will have jurisdiction over “any criminal matter” except matters listed in the schedule. As indicated above, the schedule is the same as schedule 3 of the Black Administration Act, with a few changes. Thus whereas the new schedule would omit some outdated offences and offences which can easily be handled by customary courts such as animal trespass, it would include offences relating to domestic violence among those which may not be tried by customary courts. It is expected, therefore, that customary courts will continue to apply common law as well as customary law and statutory law.

Doubts have been expressed as to the ability of these courts to handle common law crimes. Traditional courts have not in the past handled serious criminal matters^[40] and it is expected, as is evident from the list of excluded offences in the schedule, that customary courts will continue to handle minor criminal cases. Jurisdiction over minor common law and statutory offences is granted to customary courts in order to relieve congestion at magistrates’ courts and to ease the burden on accused persons, complainants and witnesses having to travel long distances to the nearest magistrate’s court in matters between members of the traditional community.

3.4 Monetary limitation on jurisdiction

In Discussion Paper 82, the issue was raised as to whether the monetary jurisdiction of customary courts should continue to be unlimited, whereas that of lower courts in the “western system” is limited. It was pointed out that in the past, claims arising out of customary law did not involve a lot of money, whereas today inflation and other factors have meant that some claims run into thousands if not tens of thousands of rand. It was also pointed out that monetary ceilings have been introduced in some other African countries for customary courts.

There were a number of responses to the Discussion Paper on this matter. Professors Koyana and Bekker submit that customary courts should continue to have unlimited monetary jurisdiction as this had not created problems in the past. They argue:

“In traditional courts the monetary value of a claim is hardly ever material. For instance, in the claim for damages for adultery the fine in the Eastern Cape is five head of cattle.That should have nothing to do with the monetary value of the beasts.”^[41]

Professor Mqeke also opposes a monetary ceiling on the civil jurisdiction of customary courts on similar grounds. He argues:

“[I]n civil matters it will be difficult to put a monetary ceiling as the value of livestock differs from area to area. In matters of seduction and pregnancy a chief’s court should be competent to award damages fixed by the custom of the tribe in question, e.g. five head of cattle or their monetary value.”^[42]

The above reasoning is problematic. The number of animals payable was fixed at a time when ordinary people normally held large numbers of cattle. The scarcity of cattle today has made such payments more burdensome.

On the other hand, other respondents have submitted that customary courts should have the same monetary ceiling as Small Claims Courts, that is R3000,00 in civil matters, and a maximum of R500,00 fine in criminal cases^[43]. Traditional leaders have objected to the suggestion that their jurisdiction be equated with that of Small Claims Courts in civil matters on the ground that the ceiling is too low. Nevertheless, at the workshops with traditional leaders in the provinces, there was general agreement that a monetary ceiling be imposed in civil cases although no amount was agreed upon. Suggestions ranged from R100,00 to R50 000,00.

Although limits are imposed on the jurisdiction of traditional courts in a number of countries, African Rights reports that in Zimbabwe, chiefs and headmen have found the upper limits of their civil jurisdiction ‘particularly problematic’. The chiefs say:

“We feel we are very much restricted over which cases we should sit and over which we should not. Take for instance lobola cases where one claims five or six head of cattle. If you value them [at Z$500], this court has no jurisdiction to try that case or settle the dispute between the parties. We have to refer them to the magistrates.. The claimants don’t like to go all the way to the magistrate’s court...”^[44]

The draft Bill provides for the imposition of a ceiling, but leaves the decision to the Minister to determine the ceiling from time to time. Thus, in clause 8(1) of the draft Bill, it is provided that a customary court may not hear a matter in which the claim or the value of any article claimed exceeds an amount to be determined by the Minister by notice in the Gazette, and clause 8(2) allows for the variation of the maximum amount by the Minister from time to time as circumstances require. An initial ceiling needs to be determined.

^[25] See 26-27 of the Discussion Paper.

^[26] The proviso to section 12 of the Black Administration Act states that “a Black chief, headman or chief’s deputy shall not under this section or any other law have the power to determine any question of nullity, divorce or separation arising out of a marriage.” Until the Recognition of Customary Marriage Act 120 of 1998 came into effect only a civil marriage was recognised as a marriage for all purposes.

^[27] Interviews in KwaZulu-Natal were held on 19 and 20 November 1999. See the Joint Submission on Discussion Paper 82 by CALS, CGE and NLC.

^[28] Joint submission and Dr HM De Vetta.

^[29] Prof Mqeke submits that these issues are “deeply emotional and culturally involved” and therefore should remain within the jurisdiction of customary courts.

^[30] Section 28 (2) provides: “A child’s best interests are of paramount importance in every matter concerning the child”.

^[31] Act 38 of 1927, section 20. See also Section 6 of the Bophuthatswana Traditional Courts Act 29 of 1979; First Schedule to the KwaZulu Amakhosi and Iziphakanyiswa Act 1990 for similar restrictions.

^[32] Customary Law and Local Courts Act. Chapter 7:05 Laws of Zimbabwe.

^[33] Section 3 (3) (b) of the Traditional Authorities Act 25 of 2000. (Namibia Government Gazette of 22 December 2000)

^[34] Chapter 04:05 Laws of Botswana (Customary Courts) sections 11 and 17.

^[35] Swazi Courts Act 80 of 1950 section 12.

^[36] The Constitution provides in item 2(1) of Schedule 6 that “(1) All law that was in force when the new Constitution took effect, continues in force, subject to: (a) any amendment or repeal; and (b) consistency with the new Constitution”.

^[37] Act 45 of 1988.

^[38] Bennett TW Human Rights and African Customary Law Juta (1995) 58.

^[39] Section 211(3) of the Constitution provides: “The courts must apply customary law when that law is applicable, subject to the Constitution and any other legislation that specifically deals with customary law.” Clause 7 of the proposed Bill states that a customary court is competent to apply (a) customary law, whether codified or uncodified and (b) the provisions of any other law which the court may be authorised by law to apply. Clause 8 reiterates this by stating that a customary court does not have jurisdiction in any case “(a) where the claim is not determinable by customary law.”

^[40] Bekker points out, “On the whole it may be said that the magistrates courts and the supreme courts are the normal tribunals in which Black wrongdoers are criminally charged...” Bekker JC Seymour’s Customary Law in Southern Africa 5 ed (1989) 13.

^[41] Koyana DS and Bekker JC – submission.

^[42] Mqeke’s submission.

^[43] GH Van Rooyen (magistrate Greytown).

^[44] African Rights “Justice in Zimbabwe” 1996 quoted in Joanna Stevens Access to justice in Sub-Saharan Africa the role of traditional and informal justice systems Penal Reform International (2000) 54.

SAFLII: | | Terms of Use | Feedback
URL: http://www.saflii.org/za/other/zalc/report/2003/1/2003_1-CHAPTER-3.html